FEDERAL COURT OF AUSTRALIA

Ariaee v Minister for Immigration & Multicultural Affairs

[2001] FCA 1627

PRACTICE & PROCEDURE - application under O 52 r 15 for an extension of time within which to appeal – whether applicant has an arguable case on appeal – whether “special reasons” exist for exercising the discretion of the Court to grant an extension

MIGRATION – refugees – persecution – whether discriminatory conduct by reason of ethnicity may amount to persecution.

Migration Act 1958 (Cth)

Federal Court of Australia Act 1976 (Cth) s 25(2)(b)

Federal Court Rules 052 r 15(1),(2)

Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 referred to

Jess v Scott (1986) 12 FCR 187 followed

Chan Yee Kin v Minister for Immigration and Multicultural Affairs (1989) 169 CLR 379 followed

Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225 followed

Chen v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 followed

Atkinson v Commissioner of Taxation [2000] FCA 998 referred to

Atkinson v Commissioner of Taxation [2000] FCR 1621 referred to

Tydeman v Deputy Registrar of Child Support Agency [1999] FCA 936 referred to

Brehoi v Minister for Immigration and Multicultural Affairs [1999] FCA 772 referred to

Howard v Australian Electoral Commission [2000] FCA 1767 referred to

HESAM ARIAEE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

S 13 of 2001

MANSFIELD J

ADELAIDE

28 NOVEMBER 2001

THE COURT ORDERS THAT:

1.                  Leave is granted to the applicant Hesam Ariaee to file and serve by 10 December 2001 a notice of appeal from the judgment given on 9 May 2001 dismissing his application to review a decision of the Refugee Review Tribunal.

2.                  Costs of the application to extend the time to appeal are to be the costs of the respondent the Minister for Immigration & Multicultural Affairs on the proposed appeal.

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

REASONS FOR JUDGMENT

1                     The applicant on 20 September 2001 filed an application for an order under 052 r 15 of the Federal Court Rules (the Rules) for extension of time within which to file and serve an appeal from a decision of a judge of the Court given on 9 May 2001.  Unless such an order is made, the applicant may not appeal from that decision.  The time within which he might have done so expired on 30 May 2001:  052 r 15(1)(a)(i) of the Rules.

2                     Under 052 r 15(2) of the Rules, the Court or a judge may at any time for special reasons give leave to file and serve a notice of appeal.  The Court as presently constituted may entertain such an application: s 25(2)(b) of the Federal Court of Australia Act 1976 (Cth), and in doing so is exercising the appellate jurisdiction of the Court:  Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 548.

3                     The decision in respect of which the present application is made was to dismiss the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) given on 8 January 2001.  The Tribunal affirmed a decision of a delegate of the respondent given on 8 November 2000 to refuse to grant to the applicant a protection visa for which he had applied on 1 June 2000 under the Migration Act 1958 (Cth) (the Act).  The applicant had applied for that visa following his arrival in Australia on 28 March 2000.

4                     The expression “for special reasons” has been explained as requiring the establishment of grounds sufficient in the particular circumstances to justify departure from the time period for an appeal prescribed by 052 r 15(1)(a):  see Jess v Scott (1986) 12 FCR 187 at 195 per Lockhart, Sheppard and Burchett JJ.  Their Honour’s said:

“ … the expression ‘special reasons’ is intended to distinguish the case from the usual course according to which the time is twenty-one days.  But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case.  Such a ground is a special reason because it takes the case out of the ordinary.”

5                     Their Honours also pointed out that the power contained in 052 r 15(2) is a discretionary one.

6                     The applicant identified the special reason as being that, although he was present when judgment was given ex tempore on 9 May 2001, he did not receive the reasons for judgment in a hard copy form until 16 September 2001.  He promptly applied for an extension of time within which to appeal.  His application has attached to it the proposed notice of appeal.  The grounds which it identifies are very general.  They are as follows:

“1.       The decision is contrary to law.

2.         The decision places the applicant at serious risk of being forcibly returned to Iran where he has a well founded fear of being persecuted.

3.         There is some errors of law in RRT decision.”

His application for judicial review from the Tribunal’s decision itself contained no grounds of appeal referable to s 476(1) of the Act.  It did not assert any errors of law by the Tribunal in reaching its decision, far less identify what those errors of law might be.  It simply claimed that his only option was to appeal to the Court, lest he be detained (as he then was) in the Woomera Immigration Detention Centre indefinitely or be returned to Iran.  Nor did his affidavit in support of that application illuminate his grounds of review in any way referable to s 476(1) of the Act.

7                     Those observations are made not to be critical of the applicant, having regard to his present circumstances.  He is, and was at all times during which his application for judicial review was before the Court, self-represented.  He cannot be expected to understand the limited nature of judicial review available under the Act, or to express his claims in terms apposite to provisions of the Act.  The point of those observations is to indicate that neither the application for judicial review nor the present application contain any material from which the prospects of the applicant succeeding on any appeal, if he is permitted to bring one, might be assessed.

8                     The applicant, before coming to Australia, had lived in Iran from 1970.  He is of Kurdish Faili ethnicity, born in Iraq but having (as the Tribunal found) assumed Iranian nationality by reason of his family’s move to Iran in 1970 when he was only four years old.  His complaints concerned the discriminatory treatment which he alleged he experienced in Iran by reason of his ethnicity and by his Iraqi extraction.

9                     The Tribunal took the view that the discriminatory treatment of which he complained did not amount to persecution.  It was not “of a nature or severity to constitute Convention persecution”, either when the discriminatory conduct complained of was taken individually or cumulatively.  In its reasons for decision, the Tribunal referred inter alia to Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) and Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (Applicant A) as explaining the nature and extent of adverse conduct which might be directed against a person or group of persons for a Convention reason, which would be of sufficient gravity to amount to persecution under Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol (using those terms as defined in the Act) (the Convention).  The learned judge at first instance found no reason to vary that conclusion.  His Honour said:

“Persecution amounts to a serious violation of human rights and, distressing though his experiences may have been, the Tribunal was correct in my opinion when it came to the conclusion that the discriminatory conduct was not so serious a violation of human rights as to constitute persecution.”

10                  In Chan, it was not necessary for the Court to go beyond saying that a threat to life or freedom, or a serious violation of human rights, for a Convention reason would amount to persecution:  see per Mason CJ at 388 and Dawson J at 400.  Mason CJ at 388 said:

“The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm, although I would not wish to express an opinion on the question whether anydeprivation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason.

McHugh J at 430 – 431 also discussed the conduct which, if undertaken for a Convention reason, might amount to persecution.  His Honour said that the denial of access to employment, to the professions and to education, or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly or worship or movement may constitute persecution.  McHugh J also commented about the meaning of “persecution” in Applicant A at 258 – 259 in the following terms:

“Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct.  It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group.  Ordinarily, the persecution will be manifested by a series of discriminatory acts directed at members of a race, religion, nationality or particular social group or at those who hold certain political opinions in a way that shows that, as a class, they are being selectively harassed.  In some cases, however, the applicant may be the only person who is subjected to discriminatory conduct.  Nevertheless, as long as the discrimination constitutes persecution and is inflicted for a Convention reason, the person will qualify as a refugee.”

The theme has been further explored by the High Court in Chen v MIMA (2000) 170 ALR 553 (Chen) in the joint judgment of Gleeson CJ, Gaudron Gummow and Hayne JJ, at 559 – 562.  Their Honours pointed out at 560 that the question whether discriminatory conduct is undertaken for a Convention reason cannot be isolated from the question whether that conduct amounts to persecution.  It is necessary to identify the particular reason assigned to that conduct.  They referred with approval to some observations of McHugh J in Applicant A in the following terms:

“As McHugh J pointed out in Applicant A, the question whether the different treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is ‘appropriate and adapted to achieving some legitimate object of the country [concerned]’  Moreover, it is '[o]nly in exceptional cases … that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving [some] legitimate government object and not amount to persecution’.”

11                  The applicant’s complaints of discriminatory conduct which he claimed amounted to persecution, are set out in a statement dated 28 May 2000 and quoted at length in the Tribunal’s reasons for decision.  He complained, for example, that he could not enrol in the Army due to his Iraqi birthplace.  He could not therefore secure a passport to travel.  His inability to undertake army service had other consequences.  He is, he claimed, ineligible for employment by the government and he has had considerable difficulty in obtaining employment in private industry in Iran due to his birthplace (although the Tribunal found that he had been continuously employed in Iran for many years).  He further claimed that his children were being deprived of educational opportunities due to his Iraqi origin.  That is not an exhaustive list of his complaints.

12                  In the light of the decisions in Chan, Applicant A, and Chen I do not accept that it is unarguable on any appeal, as the respondent contends, that the discrimination of which he complains (and which appears to have been accepted by the Tribunal) might not in the particular circumstances amount to persecution.  I do not, therefore, accept the contention that I should refuse to extend the time to appeal because it would be futile to do so.  If I were of a different view, namely that the applicant would have no real prospect of succeeding in his appeal in any event, it is clear that an exercise of my discretion adverse to the application would be appropriate:  Atkinson v Commissioner of Taxation [2000] FCA 998; and on appeal:  Atkinson v Commissioner of Taxation [2000] FCR 1621; Tydeman v Deputy Registrar of Child Support Agency [1999] FCA 936; Brehoi v Minister for Immigration and Multicultural Affairs [1999] FCA 772; and Howard v Australian Electoral Commission [2000] FCA 1767.

13                  The other ground upon which the applicant claimed to be a refugee was that he would be arrested and punished for having left Iran illegally if he were to return there.  The Tribunal, having reviewed independent country information about Iran, concluded that there was no real chance that the applicant would face persecution for a Convention reason for having left Iran illegally if he now returned there.  The relevant Iranian law was a law of general application and the most likely penalty where the illegal departee had not fled to evade justice was a fine.  The learned judge at first instance regarded that conclusion of the Tribunal as correct.  Nothing has been put by the applicant to indicate any error on the part of the Tribunal in that approach.  If that were the only basis of the applicant’s claim to be a refugee, I would refuse the present application as I would regard any appeal as futile.  However, as appears above, the applicant’s principal claims to be a refugee were founded upon other matters.

14                  I turn then to consider whether “special reasons” exist for allowing a belated appeal. The material before the Court shows that the applicant was present when the ex tempore reasons for decision were given.  It also shows that he did not receive a hard copy of those reasons for decision until 16 September 2001.  He acted promptly after that date.  Those matters by themselves may not distinguish the case from the usual course.  But, in addition, in my view it is proper to weigh in the balance the facts that the applicant at material times has been in immigration detention, that he required the assistance of an interpreter during the hearing, and that he had limited knowledge of law and practice, including it appears no awareness that the time for any appeal ran from the date judgment was pronounced rather than from the date he received the written copy of the reasons for decision.  Those matters, in my view, remove the case from the usual course.  The circumstances to which I refer, in my view, do amount to “special reasons” within the meaning of 052 r 15(2).

15                  As I have indicated, I do not consider that the leave sought should be refused because the applicant has no prospect of succeeding on any appeal.  In exercising my discretion, I note that he acted promptly once he received the written copy of the ex tempore reasons for decision.  The respondent has not suggested that he is prejudiced in any relevant way by the delay in initiating any appeal.  No other factors relevant to the exercise of my discretion have been identified by the parties.

16                  In the circumstances, I propose to give leave to the applicant to file and serve a notice of appeal from the judgment given ex tempore on 9 May 2001 up to 10 December 2001.  The applicant must therefore file and serve any notice of appeal by 10 December 2001.  That allows him 12 days to do so.  I make it plain that the appeal is not instituted by reason of the document attached to his present application.  In the light of these reasons, the applicant may wish to revise the grounds of appeal as expressed in that document.  I have not been asked to restrict the leave to appeal to certain grounds.

17                  I order that the costs of this application be the respondent’s costs on the appeal, that is if the applicant does now appeal and succeeds, and obtains an order for costs of the appeal,  there will in effect be no costs payable on this application.  If he appeals and loses, and is ordered to pay costs of the appeal to the respondent, the respondent’s costs will include the costs of this application.

Associate:

Dated:              19 November 2001