FEDERAL COURT OF AUSTRALIA

Applicant S1141 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 1042

MIGRATION – application for extension of time for review of decision of this Court made almost eight years earlier – that decision dismissed application for review of earlier Tribunal decision adverse to same applicant – subsequent joinder of applicant to substantial class action later dismissed – thereafter unsuccessful application to Federal Magistrates Court to review original Tribunal decision – thereafter present application for extension of time – present application dismissed

Migration Act 1958 (Cth) s 417

Jess v Scott (1986) 12 FCR 187 applied

S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289 referred to

Rajaratnam v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 62 ALD 73 referred to

Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 referred to

Kalaba, Lazar v The Queen [1996] FCA 908 referred to

Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 62 ALD 73 referred to

APPLICANT S1141 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1063 OF 2006

CONTI J

14 AUGUST 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for extension of time within which to appeal the decision of O’Connor J of this Court made on 10 June 1998 be dismissed.

2.                  The applicant to pay the Minister’s costs of the application.

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

REASONS FOR JUDGMENT

Nature and basis of the application – the nature and outcome of the previously unsuccessful application for refugee status dismissed by the Tribunal and of the appeal to a single judge of this Court

1                     This is an application for an extension of time within which to file and serve a notice of appeal from the judgment of O’Connor J, a former justice of this Court, delivered as long ago as 10 June 1998. For the reasons appearing in her Honour’s reasons for that judgment, the application for the judicial review of a decision of the Refugee Review Tribunal made on 30 December 1997, which had affirmed the decision of the Minister’s delegate made in January 1997 not to grant to the applicant a protection visa, was dismissed by her Honour. The applicant had earlier arrived in Australia in September 1995 from Bangladesh, and in the following month had applied for a protection visa. No appeal was filed by the applicant against the decision of O’Connor J. I have subsequently referred to her Honour in these reasons on occasions as the primary judge.

2                     The present application for an extension of time within which to appeal from the judgment of O’Connor J followed immediately upon a recent unsuccessful application made by the applicant to the Federal Magistrates Court, heard and determined on 25 May 2006, to review the decision of the Refugee Review Tribunal which had been previously the subject of the unsuccessful application for review dismissed by O’Connor J. The intervening years between the decision of O’Connor J and that application to the Federal Magistrates Court were taken up with the applicant’s joinder in a class action in the High Court. The applicant ceased to be involved in that class action in February 2004. The application to the Federal Magistrates Court was dismissed by Raphael FM on 25 May 2006. According to an affidavit of the applicant subsequently filed in this Court on 2 June 2006, and sworn by the applicant on the previous day, Raphael FM:

(i)                  accepted the proposition that in the light of changes in the law following upon O’Connor J’s judgment of 10 June 1998, the decision the subject thereof may not be sustainable;

(ii)                dismissed the application in any event on the basis of the operation of the principle of Anshun estoppel; and

(iii)               ‘noted the possibility’ that the applicant may apply for an extension of time to appeal the decision of O’Connor J.

Irrespective of the present resort to an application for extension of time to appeal that decision of 10 June 1998 of O’Connor J, the applicant has in any event appealed against the decision of Raphael FM subsequently made on 25 May 2006. However the present proceedings are confined to the applicant’s application for an extension of time within which to appeal the judgment of O’Connor J given nearly eight years ago on 10 June 1998.

The circumstances in summary recorded by the primary judge and her reasons in outline for dismissal of the applicant’s application for a protection visa

3                     The grounds of the applicant’s original application for review of the Tribunal’s decision of 30 December 1997, which was dismissed by O’Connor J on 10 June 1998 as primary judge, included the following which her Honour addressed:

‘1. Procedures required by the Act or regulations to be observed in connection with the making of the decision were not observed.

2. The decision involved an error of law being an error involving an incorrect interpretation of the applicable law or an incorrect application of the Law to the facts as found by person who made the decision whether or not the error appears on the record of the decision.

3. The decision was induced or affected by fraud or by actual bias.

4. There was no evidence or other material to justify the making of the decision.’

4                     Findings made by the Tribunal in its reasons for decision of 30 December 1997 included the following, as summarised by O’Connor J:

(i)                  the applicant’s testimony that he knew that an arrest warrant had been issued prior to his departure from Bangladesh was inconsistent with the fact that such document bore the date 25 September 1995, that being some two weeks after he left Bangladesh;

(ii)                the applicant’s further testimony that he moved his place of residence when he discovered that an arrest warrant had been issued, was inconsistent with his earlier evidence that he remained at his same local address until he left Bangladesh;

(iii)               independent evidence before the Tribunal, not disputed by the applicant, indicated that it was easy to obtain fraudulent documents in Bangladesh;

(iv)              it was implausible that the applicant had a genuine fear for his life in Bangladesh;

(v)                the applicant was well educated;

(vi)              the applicant admitted that in Bangladesh, he had been ‘doing well in his employment and had money’; and

(vii)             the applicant ‘was also able to practise his religion regularly’.

5                     In reaching its decision of 30 December 1997, the Tribunal made the following findings in particular in relation to the applicant’s case reflected in par (iv) of [4] above:

‘I accept that [the applicant] was kidnapped and held for ransom in 1987. As noted above, persecution involves an element of motivation for the infliction of harm. The phrase “for reasons of” serves to identify the motivation for the infliction of the persecution and the objectives sought to be obtained by it. The reason for the persecution must be found in the singling out of one or more of the Convention grounds. I note [the applicant’s] evidence that he would not have been kidnapped if he had no money. He also stated that the group which attacked him were criminals who caused trouble for other people in the community as well. I am of the opinion that [the applicant] was kidnapped not because he is Buddhist, but because he was perceived to be an appropriate target for extortion. I also consider that the incident described by [the applicant] when he was asked for money in 1988 was an extortion attempt carried out by a group of people who targeted [the applicant] because he was perceived to have money, rather than for reasons of his religion. Further, I am of the opinion that the harassment of his wife described by [the applicant] has also been motivated by the fact that the family is perceived as having money, rather than because of their religion.’

The Tribunal was not satisfied that the applicant had been subjected to treatment amounting to persecution in the past or that he faced treatment amounting to persecution for reasons of his religion. The Tribunal member concluded that ‘[w]hilst I accept that as a member of a minority group in Bangladesh [he] has a genuine subjective fear of being subjected to discrimination and targeted in communal violence… I am not satisfied that there is a real chance that he in fact faces treatment amounting to persecution’, and that therefore ‘I am… not satisfied that his fear is a well-founded fear of being persecuted within the meaning of the Convention’.

6                     O’Connor J recorded the respective submissions of the parties upon each of the four grounds of the original application for review from that Tribunal decision made to the Federal Court reproduced in [3] above, and made the following findings in her reasons for judgment of 10 June 1998 as follows:

(i)                  as to the first ground, being the Tribunal’s alleged failure to set out its findings on the issue of whether the applicant was a target for extortion because he was a Buddhist who could pay the moneys demanded whilst Muslims of similar standing would not be targeted, her Honour observed that that complaint concerned ‘the conclusion drawn by the Tribunal and not the procedures by which it came to that conclusion’, consequently that ground was not made out and there was no error of law established;

(ii)                as to the second ground, being the Tribunal’s alleged error of law because of an incorrect interpretation of the applicable law or of an incorrect application of that law to the facts as found by the Tribunal; the particulars supplied by the applicant to support that ground referred to the Tribunal’s conclusion that the applicant did not face a real chance of persecution for a convention reason because ‘he was not a major figure in his place of residence’, and her Honour found that such basis for challenge hence addressed only the factual merits of the Tribunal’s findings, and no error of law was demonstrated in so doing;

(iii)               further as to that second ground, being that the Tribunal erred in its assumption that documents submitted by the applicant were fraudulent and unacceptable as evidence, the Tribunal concluded, and in her Honour’s view it was entitled to conclude, that it was obvious ‘on the face of the documents’ tendered by the applicant that they lacked authenticity;

(iv)              as to the third ground, it was further open to the Tribunal to make the findings of 30 December 1997 which it did as to an absence of inducement or effectuation by fraud and/or actual bias, and those asserted grounds of fraud and actual bias were therefore not made out; and

(v)                as to the fourth ground, her Honour found that there was evidence to justify the making by the Tribunal of the decision that the applicant did not have a genuine fear for his life.

7                     O’Connor J gave the following further reasons for rejection of the applicant’s case for refugee status on the basis of no error of law having been revealed that ‘would justify the orders sought’:

(i)                  his claim constituted in reality an objection to the allegedly unsatisfactory manner in which the Tribunal had handled his case;

(ii)                the Tribunal’s decision was founded however on ‘broad principles which are generally accepted within the international community as determined under Australian law’; and

(iii)               the Tribunal did consider whether the applicant could be the subject of persecution by reason of his membership of the Buddhist religion, from the perspective of whether Buddhists as a religious group were the subject of systematic harassment in Bangladesh (or in a region within that country), being persecution for a convention based reason, and was entitled to come to the conclusion that the applicant ‘would not suffer some serious punishment or penalty or some significant detriment or disadvantage’.

The course pursued by the applicant following upon the dismissal by O’Connor J on 10 June 1998 of his application for review of the decision of the Refugee Review Tribunal earlier made on 30 December 1997 to deny entitlement to a protection visa

8                     On 3 July 1998, the applicant took steps to join the so-called Muin and Lie class actions brought by many individuals seeking review of adverse Tribunal decisions, and at the same time made an application to the Minister, pursuant to s 417 of the Migration Act 1958 (Cth), to ‘substitute [a] more favourable decision’ referable to ‘the public interest’. That last mentioned application was dismissed by the Minister and the dismissal was notified to the applicant by a Departmental letter dated 6 May 1999.

9                     Ultimately in February 2004, the applicant ceased involvement in that class action, and in March 2004, he commenced proceedings in the Federal Magistrates Court once more for judicial review of the decision of the Tribunal made adversely to the applicant earlier on 30 December 1997. The grounds for that application for review, after two amendments made to the formulation thereof, were as follows:

‘1. The Tribunal accepted that the applicant was kidnapped and held for ransom in 1987, but concluded that the applicant “was kidnapped not because he is a Buddhist, but because he was perceived to be an appropriate target for extortion”. The Tribunal fell into jurisdictional error in making this finding.

2. The Tribunal found that “the treatment of Buddhists in Bangladesh is neither systematic nor serious enough to amount to persecution within the meaning of the convention”. The Tribunal fell into jurisdictional error in making this finding.’

10                  Those proceedings were dismissed by Raphael FM on 25 May 2006 on the basis of Anshun estoppel referrable to the findings of O’Connor J. In so doing, Raphael FM relied upon the doctrine of Anshun estoppel, as discussed in three preceding refugee authorities of this Court. His Honour recorded that to his understanding, counsel for the applicant conceded that Anshun estoppel would apply, but contended that there were special circumstances that would permit him to exercise his discretion to allow the matter to be heard. His Honour also recorded that he was ‘not as sanguine about dismissing the possibility of issue estoppel in relation to [that] part of her Honour’s reasoning as [he] was about her reasoning in relation to the extortion matter’, but nevertheless withheld from committing himself beyond Anshun estoppel. In upholding the case for imputation of Anshun estoppel, his Honour found that there were no ‘special circumstances’ as that term was applied in two earlier Full Court authorities. I set out below the text of his Honour’s conclusions:

‘… I am of the view that I am prevented from hearing this matter by virtue of the doctrine of Anshun estoppel, and that there are no special circumstances as that terms was applied in BC v Minister for Immigration [2002] FCAFC 221… at [30] and Tai Shing Wong v Minister for Immigration [2004] FCAFC 242 at [52] although it may not be impossible for the applicant to obtain leave from the Full Bench of the Federal Court to appeal against her Honour’s decision and to argue in that appeal that in the light of subsequent authority her Honour may have been in error.’

The submissions of counsel for the applicant in support of the present application for an extension of time to appeal the decision of O’Connor J and my observations thereon

11                  Counsel for the applicant postulated that three issues arose in the context of the present application for an extension of time within which to appeal the decision of O’Connor J as primary judge made on 10 June 1998.

12                  The first issue was the factor of expiration of eight years since her Honour’s decision was handed down in this Court, which was acknowledged by counsel for the applicant to be ‘an extraordinarily long time’. Discussion was undertaken by the parties of the implications of the Full Federal Court decision in Jess v Scott (1986) 12 FCR 187 made on 4 November 1986, where it was held by a Full Federal Court (Lockhart, Sheppard and Burchett JJ) that an extension of time should be granted in the context of that litigation, and in relation to which, because of a misunderstanding on the part of the solicitor for the intending appellant as to the date of delivery of the judgment sought to be appealed, the notice of appeal was filed and served on the day next following the last day limited by the Federal Court Rules for appeal. The Federal Court Rules then required, and still do, the establishment of ‘special reasons’ for leave to file and serve an appeal outside the requisite period of 21 days (Order 52 Rule 15). In the joint judgment of the Full Court at 195-196 in Jess, the following appears:

‘What is needed to justify an extension of time… is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days… the expression “special reasons” is intended to distinguish the case from the usual course according to which is the time 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. We do not think that the use of the expression “for special reasons” implies something narrower than this.

…

In the circumstances of the present case… we formed the view that there were plainly special reasons which justified the making of the order sought.’

13                  The special reasons sought here to be so established by the applicant were purportedly founded upon the history of the steps which were taken by him up to the time of the hearing before O’Connor J back in June 1998. In any event, it was conceded by counsel for the applicant that the principle of Anshun estoppel may apply, but it was contended nevertheless that there were special circumstances in this case which would permit me to exercise my discretion to allow the matter to proceed, including the asserted circumstances that ‘[t]he applicant did not have legal representation at the hearing’ before her Honour, at least for the reason that he ‘could not afford legal representation’, and further that there will be ‘no disadvantage to the Minister from the re-agitation of these matters’.

14                  The second issue raised and sought to be addressed by the applicant related to the explanation for the delay. The applicant explained that at all times since June 1998, he had been involved in court proceedings for the purpose of challenging the decision of the Tribunal of 30 December 1997, and asserted that he had not delayed in progressing the court proceedings, although each proceeding has taken a long time to resolve due to factors beyond his control.

15                  In support of the contention of counsel for the applicant on the issue of delay, I was referred to his involvement in the Muin and Lie class action, and the circumstance that in February 2004, in the context of proceedings S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289, Emmett J found at [29]-[30] as follows:

‘29. The second possible matter of prejudice was a concern that delay might be advanced as an answer to any claim for relief. The Minister has assured the Court that she will not make a submission in any future proceeding that there is no satisfactory explanation for the applicant’s delay, from the time when the applicant was joined as a representative party in the High Court, to the time of refusal of an order nisi. Any delay from the time of the making of a decision by the Tribunal and the joinder of the applicant in the High Court proceeding would still remain to be explained, so would any delay from the time of refusal of an order nisi until the commencement of any fresh proceeding.

30. I do not consider that there would be any prejudice to the applicant or to any of the other applicants by the refusal of an order nisi. No such refusalwould stand in the way of successful prosecution of any subsequent application for prerogative writ relief if properly commenced and particularised.’

16                  The applicant contended on that footing that ‘this assurance given by the Minister’s solicitor’ applies in the present case. The Minister’s response was that account needs to be taken of the context of the Minister’s assurance, being the existence of about 700 applications for order nisi remitted from the High Court to the Federal Court in S1174 of 2002. The Minister submitted that ‘the assurance that no submission would be made in any future proceedings that there was no satisfactory explanation for the applicant’s delay from the time when the applicant was joined as a representative party in the High Court to the time of his Honour’s judgment, was in respect of future first instance proceedings brought challenging the Tribunal’s decision’.

17                  Assuming the foregoing explanations concerning involvement in the class action have some discrete basis in merit, the fact remains that the applicant’s engagement in the class action occurred in the context of the unfavourable decision already entered against him by O’Connor J, and for whatever reasons of his own, he chose to leave the adverse findings by her Honour unchallenged by way of appeal, and to pursue whatever refugee status he might have in the context of that class action.

18                  The applicant referred to the unreported decision of Finn J in Kalaba, Lazar v the Queen [1996] FCA 908 where his Honour indicated what he considered to be the governing principle in the case of delay:

‘For present purposes the approach I intend to take is that adopted… in Jones v The Queens and to ask: first, are the reasons the applicant has advanced for his delay sufficient to excuse or at least to explain his delay so as to justify allowing him to institute an appeal out of time? Secondly, has the applicant demonstrated that his appeal may have sufficient prospect of success to make it just that he should now be allowed to proceed with it?’

19                  The applicant also referred to the ‘long time’ it has taken ‘each proceedings to resolve due to factors beyond his control’, but I am unable to accord significance thereto in terms of it being a circumstance that would amount to a ‘special reason’ within Order 52 Rule 15(1), it having been the applicant’s implicit choice to pursue that purported perceived avenue of review of the Tribunal decision of 30 December 1997 rather than seek to appeal O’Connor J’s longstanding decision.

20                  The third issue raised by the applicant concerned his prospects of success on the appeal by way of application for review of the decision of O’Connor J back on 10 June 1998. The applicant asserted that two grounds for review had been propounded to Raphael FM below, which I will now record and discuss.

21                  The asserted first ground for review was based on the applicant’s account to the Tribunal of an incident ‘… one night in 1987 [when] he was attacked and kidnapped by a Muslim group’ and ‘held for several days until the leader of his Buddhist organisation paid a ransom to have him released’. The applicant observed in relation to that ground that although the Tribunal accepted in its decision of 30 December 1997 that the incident occurred as described by the applicant, it found that so much did not attract any Convention reason. The Tribunal’s finding in that regard was as follows:

‘I accept that [the applicant] was kidnapped and held for ransom in 1987… I am of the opinion that [the applicant] was kidnapped not because he is Buddhist, but because he was perceived to be an appropriate target for extortion.’

22                  Further as to that first ground for review, the applicant referred to Rajaratnam v Minister for Immigration and Multicultural Affairs (2000) 62 ALD 73 at [42]-[50], where a Full Federal Court was said by the applicant to have recognised that extortion may have dual motivations, one of which may be Convention based and the other not so. The applicant asserted that there was evidence that people such as the applicant may be targeted in the manner complained of, both because they have money and because they belong to a minority religion. By way of asserted illustration, the applicant pointed to the testimony of a witness that the applicant was ‘… at risk of being kidnapped and possibly killed if he returned to Bangladesh’, and all that at the hands of ‘people wanting money’ because he ‘belongs to a minority religion’. However the applicant acknowledged that he had testified by his statement to the Tribunal to the effect that he did not think he would have been kidnapped if he was not perceived as having money, but that so much did not derogate from the circumstance that people in his position were targeted in Bangladesh because they are ‘perceived as having money’, and also because they ‘belong to minority religions’. It was contended by the applicant that the failure of the Tribunal to recognise that dual motivation gave rise to jurisdictional error on the Tribunal’s part.

23                  In relation to the second ground for review, which involved the contention that the Tribunal fell into jurisdictional error when making its findings on ‘systematic conduct’, the applicant first drew attention to the Tribunal’s subject findings adverse to him:

‘… I also accept that [the applicant] was caught up in communal violence following the Babri Mosque incident, and that a member of his community was burned to death when his shop was attacked. However, because persecution involves systematic conduct aimed at an individual or at a group of people, “it is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances”. It is only in situations where “a community is being systematically harassed to such a degree that the word persecution is apt”, that an individual member of that community may have a well-founded fear of persecution: Periannan Murugasu v Minister for Immigration and Ethnic Affairs, unreported, Federal Court, Wilcox J, 28 July 1987, at 13. Whilst I accept that Buddhists in Bangladesh are discriminated against and from time to time targeted in outbursts of communal violence, I accept the independent evidence set out above which indicates that the treatment of Buddhists in Bangladesh is neither systematic nor serious enough to amount to persecution within the meaning of the Convention….’

24                  The applicant placed reliance in the context of this second ground upon the decision of the High Court in Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1, which was said to stand as authority for the principle that persecution did not require ‘systematic conduct’; I was referred in that regard to the reasons for judgment of Gleeson CJ at [5], Gaudron J at [33], McHugh J at [99]-[101], Gummow J at [133]-[135], Kirby J at [193]-[194] and Callinan at [221]-[225]. The observation of McHugh J, who gave one of the two High Court judgments in favour of the putative but unsuccessful (in the view of the majority) refugee, spoke of that non-statutory notion as importing the idea of non-random. I am unable to identify in any event any viable issue arising in the context of the proceedings concerning any such non-statutory notion, much less any basis reflecting likelihood of error in relation to the foregoing finding of the Tribunal below, and no such error has been identified by the applicant.

25                  It was contended by the applicant that Raphael FM ‘saw some merit in the grounds [of appeal] in light of the decisions of the High Court in Ibrahim, and earlier in the Full Court in Rajaratnam, both of which decisions were of course handed down after O’Connor J’s decision in June 1998. I was referred to the reasons for decision of Raphael FM in particular at [17], where the following appears:

‘It may not be impossible for the applicant to obtain leave from the Full Bench of the Federal Court to appeal against her Honour’s decision and to argue in that appeal that in the light of subsequent authorities her Honour may have been in error.’

The expression ‘may not be impossible’hardly reflects a positive view as to existence of discernible merit. In any event the applicant contended that if I was to be ‘… uncertain whether or not to grant an extension of time, an intermediate position would be to allow the matter to proceed to a hearing before the Full Court on both the application for extension of time to appeal and the appeal’.

Conclusion

26                  There is considerable force in the Commissioner’s contention that the combination of the factors of lengthy delay unexplained at least satisfactorily, together with an absence of demonstration of reasonable good prospects of success, should weigh sufficiently heavily against the applicant’s application for an extension of time to appeal the decision of O’Connor J back in June 1998. Those proceedings constituted of course an attempted review of a Tribunal decision made on 30 December 1997 which was unsuccessful in the Federal Court.

27                  I have not been presented with ‘… something very persuasive indeed to justify a grant of leave’, within the dicta cited in Jess, in order to appeal the decision of O’Connor J. The applicant’s delay in applying for leave to appeal the decision of O’Connor J has been very lengthy in scope, falling of course just short of eight years. Moreover it is not without significance that the applicant decided in any event to pursue what the applicant evidently preferred or at least chose as another avenue of perceived redress by way of class action in another superior court of record. The pursuit of that other avenue having ultimately failed, I am unable to accept that there remains any viable alternative appellate redress, by way of resort to an application for an extension of time to appeal the judgment of this Court delivered virtually eight years ago. In my opinion, no special reason has been made out for leave to appeal the judgment of O’Connor J delivered on 10 June 1998, at least for the reason I have just indicted. Moreover and in any event, I have been unable to distil any conceivable error of law appearing in her Honour’s reasons for judgment that might conceivably offer a viable prospect of success on any appeal, if leave for that purpose was to be granted.

28                  The present application for an extension of time must therefore be dismissed.

Associate:

Dated: 14 August 2006