FEDERAL COURT OF AUSTRALIA

Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132

ADMINISTRATIVE LAW – prerogative writs – discretion to refuse relief due to delay – delay of five years

MIGRATION – protection visa – failure to consider relevant considerations – whether Tribunal must specifically record findings on all evidence before it

Migration Act 1958 (Cth) s 417

Judiciary Act 1903 (Cth) s 39B

High Court Rules 1952 O 55 rr 17, 30

Federal Court Rules

Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 referred to

Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 followed

APPLICANT M70 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and THE REFUGEE REVIEW TRIBUNAL

V 5 OF 2004

HEEREY, DOWSETT and BENNETT JJ

17 MAY 2004

MELBOURNE

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The application for an extension of time be dismissed;

2.         The application for leave to appeal be dismissed;

3.         The purported appeal be dismissed; and

4.         The appellant pay the costs of both respondents of the applications and of the purported appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

Background

1                     The appellant is a citizen of China, born on 28 December 1962.  He entered Australia on 21 January 1997 and on 21 February 1997, lodged an application for a protection visa pursuant to the Migration Act 1958 (Cth) (the “Act”).  On 22 April 1997 a delegate of the first respondent (the “Minister”) refused that application, which decision was affirmed by the second respondent (the “Tribunal”) on 5 November 1997.  On 23 May 2002 the appellant swore an affidavit for the purpose of commencing proceedings in the High Court, seeking writs of prohibition, certiorari and mandamus directed to the Tribunal.  The attached draft order also sought ‘an extension of time to enable the applicant to appeal to the High Court’.  It is likely that the extension sought was of the time-limits prescribed by the High Court Rules for applications seeking writs of certiorari and mandamus.  See O 55 rr 17 and 30.  Injunctive relief was also sought against the Minister, directed towards preventing the appellant’s removal from the jurisdiction pending the determination of his application.  On 7 February 2003, in the High Court, Hayne J ordered that ‘further proceedings in this application be remitted to the Federal Court of Australia’. 

2                     On 1 December 2003, in this Court, the appellant’s solicitor filed an amended application, seeking writs of prohibition, certiorari and mandamus against the Tribunal and injunctive relief against the Minister.  The effect of the amendments seems to have been to claim relief similar to that sought in the High Court, but in reliance upon the jurisdiction conferred upon this Court by s 39B of the Judiciary Act 1903 (Cth).  The Federal Court Rules contain no time limits analogous to those prescribed by O 55 rr 17 and 30 of the High Court Rules.  There may be doubt concerning this Court’s power to grant certorari, but we need not presently address that question. 

3                     The matter was heard and determined by Marshall J on 16 December 2003.  His Honour proceeded upon the assumption that ‘it is appropriate to permit the amended application to stand in lieu of the draft order nisi from the High Court’.  No doubt that course was thought to be most favourable to the appellant.  Marshall J dismissed the “amended application” upon the ground that the appellant had failed ‘to disclose jurisdictional error’.  His Honour was conscious of the fact that it was arguably necessary that the appellant obtain an extension of time in which to seek relief and indicated that he would, in any event, have refused such leave upon the basis that the appellant had demonstrated no error in the Tribunal’s decision.  It was unnecessary for his Honour to address the issue of delay as a discretionary bar to the relief sought.  On 5 January 2004 the appellant filed a notice of appeal.  On 31 March 2004, he filed an amended notice of appeal and a notice of motion seeking an extension of time in which to apply for leave to appeal and leave to appeal.  The matter has proceeded upon the basis that the notice of appeal filed on 31 March 2004 reflects the grounds which the appellant wishes to advance.

Delay

4                     The Tribunal’s decision was dated 5 November 1997.  The affidavit commencing proceedings in the High Court was dated 23 May 2002.  It was filed on 27 May 2002, more than four years after the decision.  Quite apart from the rules previously mentioned, delay has always been a bar to relief of the kind sought in this matter.  See for example Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at [53] per Gaudron and Gummow JJ.  The appellant sought to explain his delay.  He said that he had not been advised by his migration agent that he had a right to seek judicial review of the Tribunal’s decision and that had he known that he could apply, he would have done so.  This implies that the appellant always believed that there was some error in the decision which was capable of correction.  It is not clear that the appellant ever had such belief, but he asserts that he considers the decision to be “wrong”.  In any event, he was advised in 1997 that he had the right to seek intervention by the Minister pursuant to s 417 of the Act.  He did so.  That application was unsuccessful.  The appellant then ‘avoided making any further contact with the [Minister] because of my fear of being forcibly returned to the People’s Republic of China.’  This is an euphemistic way of saying that the appellant “went underground” with a view to avoiding deportation. 

5                     On 7 August 2001 he was found and taken into immigration detention.  He made another application pursuant to s 417 but was again unsuccessful.  Whilst in immigration detention he heard that it was possible to seek judicial review of the Tribunal’s decision.  He asserts that in about September 2001 he applied for such relief.  We were told in argument that this is incorrect.  It seems that the application in question was disposed of by North J on 24 September 2001 ( see  [2001] FCA 1491).  The judgment suggests that the appellant initially indicated that he was applying for review of the Tribunal’s decision.  Such an application was then out of time.  It was treated as an application for review of the Minister’s refusal to intervene pursuant to s 417.  It was unsuccessful.  In November 2001 the appellant again applied pursuant to s 417 and was again unsuccessful.  He was transferred to the Villawood Detention Centre (“Villawood”) on or about 8 December 2001 and there learned that he could apply to the High Court.  On 6 June 2002 he commenced these proceedings.

6                     The appellant claims that he made numerous attempts to obtain legal advice whilst in immigration detention in New South Wales but was unable to obtain such assistance.  He was released from immigration detention in October 2002 and returned to Victoria.  He again sought legal assistance but was unsuccessful, although he received advice that if the decision was infected by jurisdictional error, the privative clause in the Act would not exclude review. 

7                     The appellant offers no acceptable explanation for the delay.  His deliberate attempts to avoid contact with migration authorities can hardly constitute such an explanation.  There is no suggestion that he sought legal advice at any time prior to his transfer to Villawood in late 2001.  Further, he chose to make numerous applications for intervention by the Minister pursuant to s 417.  Even making allowance for the disabilities under which he, as a non-Australian, must labour, the delay is unexplained in the relevant sense.  In Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495-6, McHugh J said:

‘[15]   An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties.  That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension.  Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered.  Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.  In that respect, the present case, although important to the applicant, is not as important as many other cases.

...

[16]    Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay.  As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy [1965] 1 WLR 8 at  12, “[t]he rules of court must prima facie be obeyed.”  The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this court can be brought against a judgment or decision.  The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court.  In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.’

8                     Applying those observations and, by analogy, the time limits in the High Court Rules to the present case, relief should be declined for reason of delay.

The “merits”

9                     Nonetheless, we should say something about the “merits”.  The appellant claims to fear persecution in China for three main reasons, namely:

®                 because his family were property holders prior to 1949, and he has thereafter been persecuted as a member of that class;

®                 because the appellant was politically active in 1989 and has subsequently been persecuted for such activity; and

®                 because of his political activities in Australia.

The first and third aspects are no longer relevant. 

10                  The appellant claims that he hates the communist system because of the harassment he suffered as a result of his family connections.  In 1986 he joined a group of like-minded colleagues in an organization which met secretly to discuss human rights and democratization.  It published articles supporting freedom of speech and democracy and condemning the dictatorship of the Chinese Community Party.  In April 1989 the appellant arranged for workers and staff from his work unit to walk in front of demonstrating students in the People’s Square in Shanghai, apparently to protect them from police attack.  Later in 1989 he and his organization participated in a protest demonstration.  He was detained for three days and interrogated.  He was then released.  No charges were laid against him.  He returned to his work unit where he was given an administrative warning and was required to report weekly to the authorities.  He claims that he was subjected to surveillance.  He also claims that in 1989 he was refused a passport.  He resigned from his work unit in 1991 as a result of the harassment to which he was exposed.  He joined a Japanese company in a position which was more remunerative than his previous employment.  He claims that the authorities continued surveillance of him and that he was still required to make weekly reports.  In 1996 he decided to leave China and paid money to an unofficial organization in order to obtain a passport.  As we have observed, he arrived in Australia on 21 January 1997.  He also claims that since he has been in Australia, his family in China has been harassed.  His son has been denied admission to a school, and his wife was dismissed from her employment.  They have been subjected to surveillance.

11                  The appellant complained that the Tribunal erred in the way in which it dealt with these matters.  To some extent, his criticisms are based upon a possible misunderstanding in the reasons for judgment of Marshall J.  It is possible that his Honour may have thought that the appellant’s complaints were of harassment (including the reporting requirement) from 1989 until 1991.  In fact he complained of harassment which continued until he decided to leave China in 1996.  However the Tribunal recorded his complaints concerning such harassment (at AB 64-65) in a way which suggests that it continued up until his departure from China.  There is no reason to believe that the Tribunal misunderstood the appellant’s claim in this respect.  Nonetheless the appellant submits that the Tribunal failed to appreciate the significance of this complaint for his case as a whole.  The appellant also submits that the Tribunal failed to understand the nature and relevance of the appellant’s claim that his wife and child have been harassed since his departure from China.

12                  The Tribunal clearly placed great weight upon the country information which, in its view, demonstrated that:

‘... the pursuit of persons who were low profile activists in 1989 ceased some time ago.  While some persons who were arrested at that time continue to suffer harsh penalties and inhumane conditions there is no evidence of the authorities continuing to punish persons with a “low profile” who actively supported the pro-democracy movement.  ...  There is no material that would indicate, however, that persons having a profile or history of activity such as the applicant’s would now face a real chance of persecution at the hands of the Chinese authorities.’  (AB 70)

13                  The Tribunal accepted the appellant’s claims concerning his involvement in dissident activities between 1986 and 1989 but concluded that such activities would not lead to serious adverse attention should he return to China.  It considered that had he been regarded as a major pro-democracy activist, and therefore likely to suffer adverse treatment, he would not have been permitted to leave China or to continue to work without interference.  He would also have been subjected to further interrogation. 

14                  Clearly, the Tribunal considered the appellant’s claim of harassment in light of the country information, concluding that such information led it to conclude that he would not face persecution in China.  This view was, in part, based upon the Tribunal’s assessment of the extent of the appellant’s involvement in dissident activities in, and prior to 1989.  The appellant’s submission is that the Tribunal should have inferred from his evidence of harassment that his involvement had been sufficient to attract ongoing unfavourable attention.  That submission assumes that the Tribunal was obliged to accept the appellant’s claims as to harassment in their totality.  In fact, it carefully recorded its acceptance of some claims, but not others.  The process appears particularly at AB 70-72.  Where some aspects of a witness’s claim are expressly accepted, it is fair to infer that the relevant tribunal has consciously decided not to rely upon other aspects, subject only to the possibility that such aspects may have been overlooked.  That is, in our view, unlikely in this case, given the nature of the evidence and the fact that the appellant’s claims were recorded elsewhere in the reasons.  Here, the Tribunal has chosen to rely upon the country information and its own assessment of the appellant’s activities rather than upon his claim to ongoing harassment attributable to his 1989 activities.

15                  As to the circumstances concerning the appellant’s wife and child, the Tribunal accurately recorded his claims at AB 65.  At AB 73-74, it referred to such “harassment” and cited the following statement by Dr A Chan:

‘A visit by the PSB is a standard practice for a family member overseas.  When someone goes overseas the PSB will visit the family and tell them that their son or daughter while overseas is like an ambassador for China.  They ask the family to write to their son or daughter and advise that they should not become involved in any anti-PRC activities.  The PSB visit does not mean anything special, nor that the family or the relative overseas has been targeted by the police.  If the person overseas is involved in a political demonstration outside the Chinese Consulate or Embassy then, depending on the level of involvement in the demonstration, the PSB will visit the family again...The number of visits to the family depends on the number of challenges that a person here gives to the Chinese consular staff. 

The Chinese authorities are not interested in these people; they are considered just ordinary people of no special significance.  This is true even if the person is involved in one of the pro-democracy groups, the Chinese Consulate is simply not that interested.  Even I have demonstrated in front of the Chinese Consulate a number of times and have been allowed to enter China, conduct research and exit with no difficulties from the authorities.’

16                  On this basis the Tribunal concluded that:

‘In the light of this evidence, the applicant’s experience and that of his family are normal in the circumstances and do not constitute a threat of persecution.’

17                  The thrust of this finding is that the Chinese authorities are not concerned to persecute the families of dissidents abroad.  It is true that at this point the Tribunal did not deal expressly with the assertions of surveillance, loss of employment and denial of enrolment in a particular school.  The appellant again submits that the claimed harassment of his family demonstrates that he is seen by the Chinese authorities as having been sufficiently prominent as a dissident to attract continuing adverse attention.  Once again, the Tribunal preferred to act upon the country information and its own assessment of the level of the appellant’s activities as a dissident.  We also note that the appellant can have had no direct knowledge of his family’s experiences since he left China.  He gave few details concerning the various incidents, nor his basis for attributing such incidents to his 1989 activities.

18                  The appellant’s criticisms do not demonstrate grounds for serious concern about the Tribunal’s decision, or that the appellant may be subjected to a real risk of persecution in the event of his return to China.  After all, he was satisfied to leave his wife and child there when he decided to leave in the face of relatively minor harassment.  We see nothing in his submissions which suggests that the interests of justice require that relief be granted notwithstanding his delay.

Orders

19                  In those circumstances, the application for an extension of time, the application for leave to appeal and the purported appeal should all be dismissed with costs.

Associate:

Dated:              17 May 2004