WAKI v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1093

FEDERAL COURT OF AUSTRALIA

WAKI v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1093 Federal Court Rules O 52 r 15(2)

Jess v Scott (1986)12 FCR 187 applied WAKI V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS W183 of 2003 RD NICHOLSON J 1 OCTOBER 2003 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W183 OF 2003

BETWEEN: WAKI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE OF ORDER: 1 OCTOBER 2003

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application for an extension of time within which to file a notice of appeal is dismissed. 2. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W183 OF 2003

BETWEEN: WAKI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE: 1 OCTOBER 2003

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant applies for an extension of time in which to file and serve a notice of appeal from the judgment of the primary judge given on 4 July 2001. The extension is required because a notice of appeal was not filed and served within the time specified in O 52 r 15 of the Federal Court Rules. The rule provides, nevertheless, in subrule (2): 'Notwithstanding anything in the preceding subrule the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.' 2 The approach to those words and to that provision is set out in Jess v Scott (1986) 12 FCR 187 at 195 and I follow what was there said. The result is that the Court must consider two aspects. The first is whether there is evidence of circumstances that may establish special reasons. The second is the Court must form a view on whether there is a real prospect of the applicant succeeding in the appeal in any event. 3 The evidence for the applicant comes in the form of an affidavit sworn on 12 September 2003. From that it appears that the applicant is an Iranian national, widowed, with two sons. She belongs to the Sabaean Mandaean religious sect. She arrived in Australia with her two sons on 20 June 2000. Other members of her family, namely, her mother, two brothers and three sisters, have all been living in Sydney for approximately 16 years. 4 On 23 July 2000 the applicant lodged an application for a protection visa. On 21 December 2000 a delegate of the respondent refused the application. On 26 March 2001 a Refugee Review Tribunal ('the Tribunal') affirmed the decision of the delegate. 5 On 3 April 2001, it is said in the applicant's affidavit to which no objection is taken, her family engaged a legal practitioner to appeal the Tribunal's decision to the Federal Court. On 6 July 2001 the applicant was informed by the legal practitioner that the appeal had been unsuccessful. 6 In his letter of advice the legal practitioner stated that the Court had not been persuaded there had been any errors of procedure or law made by the Tribunal in its decision to refuse the applicant's claim to be a refugee. He referred to comments by the judge who spoke sympathetically of the applicant's plight as a widow with two children and that she may have had strong grounds to remain in Australia on a humanitarian basis. He considered those remarks may assist her in making an application to the Minister to exercise his discretion to grant a visa on such grounds pursuant to s 417 of the Migration Act 1958 (Cth) ('the Act'). Nevertheless, he did not give any indication of the likelihood of success. 7 His letter then stated: 'Please note that you have 21 days from 4 July 2001 to make an appeal to the Full Court of the Federal Court, ie, any appeal must be lodged by 25 July 2001 at the latest. The appeal period runs from the date of the decision, not from the date that written reasons are supplied. However, I do not recommend such an appeal as I do not consider that it has any prospects of success.' The impact of this advice on the applicant is stated in her evidence in pars 11, 12 and 13 of her affidavit which I set out in full: ' … 11. My Son, Iman Al Gameh, read this letter to me as I can no read English. From what I understood, the 417 letter was our only other option. Mr Christie did not advise us to appeal further to the Full Federal Court… 12. Although Mr Christie's fax does indicate that an appeal to the Full Federal Court would need to be made within 21 days of the decision at first instance, my attention was not drawn to this and I did not realise this was an option. 13. It was my understanding that any appeal to the Court could not be made pending a 417 application. I thought this was so as I knew people in detention who had applied under s 417 and received a response back saying that it would not be appropriate for the Minister to consider such an application pending court proceedings….' 8 On 3 October 2001 the respondent wrote to the applicant referring to the application lodged on her behalf pursuant to s 417 of the Act and advised he had decided not to exercise that discretion in her case. 9 Subsequently, a number of further applications were lodged on behalf of the applicant directed to the Minister to exercise his discretion either under s 417 or s 48B of the Act. These came from interested citizens, Members of Parliament, members of institutions with an interest in refugee welfare and the Sabaean Mandaean Association in Australia Ltd. They all resulted in advice from the respondent to the applicant and to those seeking to invoke the exercise of his discretion that he declined to do so. 10 When the application was made to the Federal Court for review the grounds were threefold, namely: '(a) The Tribunal erred in law in applying the test as to whether the Applicant had a well-founded fear of persecution if he (sic) returned to Iran in that the Tribunal was required, but failed to consider, the Applicant's claims as a whole and cumulatively, namely that the Applicant both as a member of a minority religion and as a single mother in Iran had a well-founded fear of persecution. (b) The Tribunal erred in law in applying the test as to whether the Applicant could reasonably relocate if returned to Iran. (c) The Tribunal did not have jurisdiction to make the decision, such alleged jurisdictional error being based upon the first two grounds of review.' 11 The four proposed grounds of appeal now set out in the notice of appeal before the Court are as follows: '… 2. That the Learned Judge erred in law in finding that the Refugee Review Tribunal ("Tribunal") had afforded the Appellant procedural fairness. 3. The Learned Judge erred in law in finding that the Tribunal had considered, as it was required to do so, a significant integer of the Appellants (sic) claim, namely, the Appellants (sic) psychological harm suffered as a result of the discrimination suffered by the Appellant this being "serious harm" in accordance with the definition contained within s 91R of the Migration Act. 4. That the Learned Judge erred in law in finding that the Tribunal had considered, as it was required to do so, a significant integer of the Appellants (sic) claim, namely, the Appellants (sic) wife and daughter being members of a particular social group namely "Sabean (sic) women in Iran". 5. That the Learned Judge erred in finding that the failure of the Tribunal to address the issue of the States (sic) failure to protect the Appellant was not of itself grounds to allow the appeal against the Tribunal decision." 12 In these circumstances it is necessary to consider, first, whether there are any special reasons. For the respondent it is contended the applicant has not put forward any matters constituting special reasons. It is said that when par 12 of the affidavit is read in conjunction with par 11, it is apparent they are in conflict. The contention is that because it is stated in par 11 that the applicant's son read the legal practitioner's letter of 6 July 2001 to the applicant, it cannot be the case that her attention was not drawn to the appellate rights or that she did not realise the exercise of them was an option. The respondent's contention invites the Court to infer that, as a consequence, the applicant was aware of the time limit for lodging an appeal against the decision but that she decided to request the practitioner to write to the respondent to request the exercise of his discretion under s 417 of the Act, particularly in the context of his advice that there were little prospects of success in an appeal. 13 For the applicant it is said that special reasons arise from the circumstances of the fact that she is a woman, widowed with children, held in detention in a country where the language is different to her own and that, in all the circumstances, there are special reasons why the discretion in O 52 r 15(2) should be exercised. 14 Sadly it is not the case that the circumstances of the applicant's detention are special. The circumstances of her detention and indeed her personal circumstances are, in the experience of the Court, replicated on many occasions. It has not been the position that the existence of those circumstances themselves can be said to give rise to special reasons. 15 In relation to whatever the understanding which the applicant had, I must take into account that she is not sophisticated in the language or legal circumstances and that she may well have simply understood that any appeal to the Court could not be made pending a s 417 application. The mere reading of the letter to her by her son may not have been enough to implant in her mind an accurate understanding of its contents. 16 Nevertheless, I do not consider that even if she held the understanding that an appeal to the Court could not be made pending a s 417 application, that would constitute a special reason. It is a circumstance to be taken into account but I do not consider it amounts to a special reason. That is because by the time of the response from the respondent dated 30 October 2002, the effect of that understanding had come to an end and was not the reason for her not thereafter seeking to exercise her appellate rights. The action taken by other persons subsequently to bring applications on her behalf is not something of which the applicant has provided any evidence, and so cannot enlighten the Court as to what lay within her understanding or whether they were undertaken at her behest. 17 I am not therefore satisfied that there are special reasons. 18 However, if that view be a wrong understanding of the evidence it is necessary for me to consider the matter upon which the respondent particularly relies namely, whether there is a real prospect of the applicant succeeding in the appeal in any event. 19 The first of the proposed grounds of appeal relating to procedural fairness is not supported in any submissions for the applicant and is a matter which was not raised as a ground of review before the primary judge. As the submissions for the respondent state: 'In any event, under the form of section 474(2)(a) of the act a breach of the rules of natural justice was not a ground upon which an application could be made to the Federal Court for review under section 476(1).' 20 As to the second ground, that relating to psychological harm, the case for the applicant points to three references in the record of the reasoning of the Tribunal where the psychological condition of the applicant is referred to. It is then contended that because the grounds of review before the primary judge were expressed in terms that there was a failure to consider the applicant's claims as a whole and cumulatively, that there had been a failure to consider the issue identified in this proposed ground of appeal. 21 I do not accept that the reference to consideration of the applicant's claims as a whole and cumulatively could have or did sweep up into the grounds of review before the primary judge the issue of psychological harm derivative from the three references in the reasoning of the Tribunal in the way contended. When the ground of review is read, the reference to consideration of the applicant's claims as a whole and cumulatively was a reference to considering the applicant both as a member of a minority religion and as a single mother in Iran. Further, there was no finding made by the primary judge to the effect that the Tribunal had considered a significant integer of the applicant's claim, namely, the psychological harm she had suffered as a result of the discrimination suffered by her. There was no obligation to make such a finding because no ground of review was raised before him that the Tribunal had erred in law in that way. There are, therefore, no reasonable prospects of success of this ground, and I accept the respondent's submission that the applicant's contentions in relation to it are 'drawing too broad a brush'. The psychological issue was one which arose solely in relation to the issue of relocation, as examination of the particular three passages discloses. 22 The third proposed ground of appeal is that which counsel for the applicant states is the strongest of the grounds that could be argued on the appeal. It is not the case that the primary judge did find that the Tribunal had considered a significant integer of the applicant's claim, namely, that the applicant was a member of a particular social group, namely, the Sabaean Mandaean women in Iran, as part of his reasoning. The complaint which was raised before him by the applicant was that the Tribunal had failed to consider whether discrimination or harassment directed towards her as a result of being a single mother in Iran could be persecution for a Convention reason, namely, persecution by reason of membership of a social group comprising single mothers and, alternatively, single mothers who are also members of a minority religion. Examination of pars 16 and 17 of the reasons of the primary judge in particular make this apparent. That understanding is consistent with the general formulation of the grounds before him to which I have previously referred. In my view in those circumstances it cannot be said there are real prospects of success on this ground. 23 For the applicant it is said that fresh evidence would show the Tribunal in fact took a wrong view. Fresh evidence, however, cannot establish an error before the Tribunal at the time the Tribunal made its decision. Fresh evidence may support a further application on a new basis. This is not an instance where it has been argued, other than in the most general terms, that there was any duty of inquiry upon the Tribunal to discover what is now said to be potential fresh evidence and which is not yet before the Court. There is a great deal of law on the scope of the duty of inquiry of the Tribunal and nothing has been said today which would establish that the Tribunal was under any obligation to inquire further and by failing to do so fell into error of law when it made its decision. 24 The fourth proposed ground of appeal is accepted by counsel for the applicant as being unintelligible in its terms and cannot have any real prospects of success. 25 In those circumstances and for those reasons I do not consider that the application for extension of time to file and serve the notice of appeal can be granted. 26 It is apparent that the applicant is a person who must attract considerable sympathy for her family situation as a widow with two sons and in detention. She is also someone who has in Australia circumstances of family support (I rely on that also in connection with my earlier reasons that her circumstances alone do not constitute special reasons). More importantly, however, it demonstrates a reason why she would wish to join that family and to bring up her children in the environment of that family. There may, one would have thought, be humanitarian circumstances that might come within some guideline, although there seems to be opinion to the contrary based on closer knowledge of these relevant guidelines. I record that simply to say that the applicant is not a person who is undeserving of the further representations that have been made in respect of her. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.