FEDERAL COURT OF AUSTRALIA VQAN v Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1541 MIGRATION – relief under s 39B Judiciary Act 1903 (Cth) very long delay – whether substantive merits of application need to be considered Judiciary Act 1903 (Cth)s 39B Re Refugee Review Tribunal; ex parte Aala (2001) 204 CLR 82 at [53] applied VDAQ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 545 discussed S157 v Commonwealth (2003) 195 ALR 24 cited Ngu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 54 cited Re Ruddock; ex parte LX [2003] FCA 561 followed Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491 discussed Gallo v Dawson (1990) 93 ALR 479 discussed Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VR 257 at 262 and 263-264 cited Byrnes v Grigg [1967] VR 871 at 872 cited Mitchelson v Mitchelson (1979)24 ALR 522 at [524] cited M162 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1146 at [39]-[40] cited Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42] cited Minister for Aboriginal Affairs v Peko-Wallsend (1996) 162 CLR 24 at 39 cited VQAN v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ORS V491 OF 2003 HEEREY J 19 DECEMBER 2003 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V491 OF 2003 BETWEEN: VQAN APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & OTHERS RESPONDENT JUDGE: HEEREY J DATE OF ORDER: 19 DECEMBER 2003 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondents' costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V491 OF 2003 BETWEEN: VQAN APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & OTHERS RESPONDENT JUDGE: HEEREY J DATE: 19 DECEMBER 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant is a citizen of Albania of mixed Greek and Macedonian ethnicity. On 2 July 2003 he commenced an application in this Court under s 39B of the Judiciary Act 1903 (Cth) and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) seeking review of a decision of the Refugee Review Tribunal delivered on 7 January 2000 affirming a decision of a delegate of the Minister to refuse the grant of a protection visa under the Migration Act 1958 (Cth) ("the Act"). 2 Since the matter does not come on remitter from the High Court the time limits for mandamus and certiorari in the High Court Rules are not applicable. There is no relevant time limit in the Federal Court Rules (a matter which perhaps should receive the attention of the rule-makers). It is nevertheless accepted that delay is a discretionary ground for refusal of relief under s 75(v) of the Constitution and s 39B of the Judiciary Act: Re Refugee Review Tribunal; ex parte Aala (2001) 204 CLR 82 at [53]. Long delay with no satisfactory explanation – should substantive merits be considered? 3 A preliminary issue arises. Counsel for the Minister submits that because of the length of the delay (three and a half years) and the lack of any satisfactory explanation, I should exercise my discretion by refusing the application without embarking on any consideration of its substantive merits. 4 Before considering that question I shall briefly summarise the reasons advanced by the applicant for the delay. These are contained in an affidavit which he affirmed on 12 December 2003. 5 The applicant says that after the refusal of his application by the Tribunal on 7 January 2000 he wrote on 25 January 2000 to the Minister seeking his intervention under s 417 of the Act. That request was refused in June 2000. The applicant was "so scared of returning to Albania" that he did not depart Australia at that time. He had heard of other Albanians who had been forced to return to Albania and who had been persecuted because of the fact they applied for refugee status overseas. He was very concerned that he too was at risk. He had heard of those people's families being persecuted by bashings and "disappearances". He was also very afraid because of the news of increasing tensions between Albanians and Macedonians to a point where Albanian paramilitary forces entered Macedonia from Albania and Kosovo and were at war with the Macedonian army from February to September 2001. There was also a lot of civil unrest sanctioned and condoned by the Albanian government. The applicant was very afraid for his safety and that of his family back in Albania as a consequence of his personal experiences of persecution at the hands of the Albanian government authorities. 6 He made a further request to the Minister under s 417 by email (apparently incorrectly addressed) in March 2002, followed by a letter dated 10 May 2002. 7 On 14 May 2002 he was involved in a serious workplace accident as a result of which the three middle fingers on his left hand had to be amputated. He was in hospital for several weeks after the accident and is still receiving treatment including plastic surgery. 8 On 4 June 2002 he lodged an application for review in the Federal Court. He did not have any legal representation. On 18 July 2002 Goldberg J dismissed the application: VDAQ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 545. His Honour upheld an objection to competency on the ground that under s 477 of the Act the application was made out of time. His Honour noted (at [9]) that s 477 in its then current form was applicable because the application for review was lodged after 2 October 2001. (Counsel for the Minister concedes that in the light of the interpretation subsequently given to the expression "privative cause decision" in S157 v Commonwealth (2003) 195 ALR 24 it is impossible to determine whether the proceeding is barred by s 477 without first determining whether the decision was affected by jurisdictional error: Ngu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 54.) 9 On 8 August 2002 Mr Lucas of Victoria Legal Aid prepared a further request to the Minister under s 417. That was refused on 19 December 2002. In the meantime the applicant began attending fortnightly counselling sessions at the Victorian Foundation for Survivors of Torture. 10 In January 2003 the applicant consulted his current solicitor Ms Karyn Anderson who lodged a Freedom of Information application with the Department of Immigration. On 14 February 2003 the applicant's solicitor wrote to him advising him of the effect of the decision in the S157 casereferred to above. 11 On 22 May 2003 the applicant's solicitors received the documents sought under FOI. 12 In the meantime a friend of the applicant obtained tape recordings of the Tribunal hearing and made enquiries with a review to seeking professional Albanian interpreters to check the interpretation at the hearing. Delays were incurred in finding a suitable person. 13 In May 2003 Mr Nicholas Kotsiras MP wrote another letter to the Minister seeking his intervention under s 417. This was refused on 26 June 2003. As already mentioned, the present proceeding was commenced on 2 July 2003. 14 The applicant relies on the fact that it was not until mid February 2003 that he became aware of the High Court decision in S157 and that he and his friend were "busy investigating the potential grounds of review in the months after that". He says Mr Kotsiras told him he was confident that the Minister would intervene. The applicant continued to have fear for his safety and that of his wife and child if he were forced to return to Albania. The situation had become "completely lawless as well as politically very unstable making it especially dangerous for minorities such as myself". 15 In my view no satisfactory explanation has been proffered for this long delay. At a time when the Act on its face mandated a twenty-eight day period the applicant waited for two and a half years before making the application heard by Goldberg J. Waiting for the outcome of an application for intervention under s 417 is not a satisfactory explanation: Re Ruddock; ex parte LX [2003] FCA 561. Not only is there realistically unlikely to be much prospect of success, but such an approach necessarily assumes an acceptance of the Tribunal's decision. In any case there is nothing to stop a 417 application being brought in parallel with an application to the Court. The applicant does not explain why he knew it was possible to bring an application to the Court in mid 2002 but not in January 2000. He does not suggest that in early 2000 he was unaware of the possibility of seeking judicial review. It seems unlikely that he was aware of s 417 but not of the more commonly used and obvious remedy of judicial review. His claim that he was "so scared of returning to Albania" because of the bad conditions he describes in that country makes it all the more surprising that he did not pursue judicial review promptly (not to mention his two year delay in applying for a visa). 16 So this is a case of very long delay and no reasonable explanation for the delay. In submitting that I should go no further and not consider the substantive merits of the application, counsel for the Minister relied on the decision of McHugh J in Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491. This was an application for an extension of time under the High Court Rules to apply for writs of certiorari and mandamus in respect of a decision of the Full Bench of the Australian Industrial Relations Commission. The applications were eleven months out of time for certiorari and fifteen months out of time for mandamus. In a passage relied on by counsel for the Minister in the present case McHugh J said at [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." 17 However, read as a whole I do not think Marks is authority for the proposition that, given sufficient length of time and inadequacy of explanation, merits are irrelevant. In Marks itself McHugh J spent some time considering the merits of the proposed attack on the Full Bench's jurisdiction: see [21]-[24]. His Honour also said (at [13]) referring to his earlier decision in Gallo v Dawson (1990) 93 ALR 479: "I also said that, when the application is for an extension of time in which to file an appeal, it is also necessary to consider the prospects of the applicant succeeding in the appeal. A similar enquiry must be made when the application is for an extension of time in which to commence s 75(v) proceedings to quash an act, decision or judgment. A 'case will need to be exceptional' before the time for commencing proceedings was enlarged by many months. The explanation for such delay is also a relevant consideration." 18 At [14] his Honour states: "For the reasons that I give below, the applicant has not been able to advance even an arguable case of jurisdictional error by the Full Bench." 19 His Honour referred to Gallo at 480 where he cited the Victorian cases of Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VR 257 at 262 and 263-264 and Byrnes v Grigg [1967] VR 871 at 872 and also Mitchelson v Mitchelson (1979) 24 ALR 522 at [524] as authority for the proposition that "(w)hen the application is for an extension time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal." 20 Counsel for the Minister also relied on the decision of Goldberg J in M162 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1146 at [39]-[40] where his Honour cited a passage in the judgment of Gaudron and Gummow JJ in Aala (2001) 204 CLR 82 at [53]: "The recognition of an element of discretion attending the exercise of the jurisdiction conferred by s 75(v) with respect to prohibition involves two separate questions. The first is whether the officers of the Commonwealth in question acted in want of or in excessive jurisdiction. The second is whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances." Their Honours go on to point out (at [54]) that the other two remedies conferred by s 75(v), mandamus and injunction, are "attended by discretion". 21 Goldberg J did not proceed on the basis that delay could be the sole consideration in exercising the discretion to refuse relief. His Honour in fact considered the merits of the proposed application at some length: see [24]-[34]. 22 I conclude therefore that it would not be a proper exercise of discretion to completely ignore the applicant's prospects of success. This was not in fact done in the cases relied upon by counsel for the Minister. Moreover, his argument seems to be, practically speaking, inconsistent with the course adopted by the Full Court in Ngu. 23 If, as I therefore hold, the substantive merits must be considered, two approaches are possible. The substantive arguability might be considered as part of a balancing exercise, so that the longer the delay without reasonable explanation, the stronger would need to be the argument on the substantive merits. Alternatively, the court should proceed to reach a final conclusion one way or the other on the substantive merits and, if satisfied that a case of jurisdictional error is made out, then consider whether relief should be refused because of delay or other discretionary factors. This question was not argued. It is not necessary to express a conclusion because in the view I take the same ultimate result would be reached whichever approach were adopted. I would express a tentative preference for the latter, which seems more consistent with the reasoning of Gaudron and Gummow JJ in Aala at [54] et seq. The substantive merits 24 The applicant is a dentist by profession. He was born in 1966. On 24 December 1995 he left Albania and arrived in Australia on 26 December 1995. He did not apply for a protection visa until 12 November 1997, almost two years later. On 3 December 1997 a delegate of the Minister refused the grant of a protection visa. On 24 December 1997 the applicant applied to the Tribunal for review. 25 On 10 December 1999 the Tribunal conducted a joint hearing of the claims of the applicant and his brother who had also applied for a protection visa. As already mentioned, the Tribunal delivered a decision on 7 January 2000 affirming the decision not to grant a protection visa. 26 The applicant's claims before the Tribunal were set out in his initial application form, a subsequent detailed statement dated 26 November 1997, his submission to the Tribunal dated 23 December 1997 and his oral evidence at the hearing. 27 He claimed to be of mixed Greek and Macedonian heritage and an Orthodox Christian and therefore in a minority in Albania. Following the collapse of Communist regime there was general lawlessness, approaching anarchy, and widespread extortion, corruption and abuse by private individuals and public officials. 28 After completing his training as a dentist the applicant set up practice for four months in 1995. He was forced to close his practice because of repeated large extortion demands by various security officials. On the few occasions when he did not pay he was arrested and detained and savagely beaten at a police station. The treatment the applicant received on the occasion of his second detention and threats made to him were so serious that he went into hiding and his family sold their house in order to pay bribes to obtain a visa for himself to flee the country. His parents went over the mountains from their home to Greece. 29 The applicant put considerable detail in his various statements. In essence his claims were that within a climate of generally harsh and randomly violent discrimination against and persecution of ethnic Macedonians he personally had suffered extortion, detention and savage beatings. 30 The Tribunal under the heading "Claims and Evidence" summarised the applicant's claims. It referred to a statement that the applicant had provided on 26 November 1997 (although not specifically to a later one dated 23 December 1997) which recorded his claims of bribery and extortion by local officials which he had to pay to be able to practice as a dentist. On two occasions when he did not pay the bribe demanded the officials got the police to arrest him. He was beaten with hose pipes. The police demanded to know if he was importing medicines. He was beaten again because receipts were issued in Greek currency instead of Albanian. This first detention was in April 1995 when he was kept at the station for five hours. The second time was in July of that year when the police demanded money. He could not meet this demand and was taken to the police station and beaten up with hose pipes and also with their feet and fists. He was released after a few hours on condition that he pay within seven days. He immediately shut up shop and went into hiding. He said he was taken to the police station because he was not an Albanian. He was treated differently to those dentists who were Albanian. He said that if he were return now it would be considered that he was rich and there would be more demands for money. 31 Under the heading "Findings and Reasons" the Tribunal accepted there had been "tension between the ethnic Albanian majority and minorities such as the Greek and Macedonian communities". It referred to the country information including statements by Human Rights Watch in March 1996 and United States Department of State Albania Country report on human rights practices for 1998. The Tribunal concluded from the above information that "whilst there is no doubt discrimination is present in Albanian society in relation to those of Greek or Macedonian ethnicity, it is generally not serious enough that it amounts to persecution. The Tribunal also concludes corruption permeates Albanian society." 32 The Tribunal then said: "The applicant has claimed that he was detained and beaten on two occasions after he set up practice as a dentist. Whilst the Tribunal would have thought that the applicant would have included such claims in his initial application, the Tribunal is prepared to accept his explanation for this and accept that he was detained on two occasions. The question then is whether this was because of his ethnicity or because he was perceived to be a person with money who could be extorted for this money. The Tribunal has considered this and concluded for the following reasons that the applicant was targeted because he was perceived to have money and not because of his ethnicity." Firstly the applicant has not claimed he was targeted prior to setting up his dentists business in mid 1995. If it was the case that those who sought money from him were doing so to punish him for his ethnicity, the Tribunal would have thought they would have found other ways to harm him or would have extorted money from him at an earlier stage. The fact that he was not detained prior to his setting up the business indicates that such actions were not because of his ethnicity. Secondly in the applicant's second statement which was typed and dated 26 November 1997, in relation to each detention, the applicant states that it was because he was not able to pay the bribes. This indicates it had to do with money and not ethnicity. Whilst the Tribunal notes that in the hearing the applicant claimed that other Albanian dentists were not treated the same way, the Tribunal considers that if this were the case the applicant would have mentioned it in his statement and would also have stated at this time that he was singled out because of his ethnicity. Rather in this statement he claims he was taken to the police station and beaten for failing to pay the required sum of money. Thirdly the country information indicates that corruption is endemic in Algerian society and this indicates that bribery and extortion is not limited to those of Greek or Macedonian background. When all of these factors are taken into account the Tribunal is satisfied that the applicant faced extortion because he was perceived to have money and not because of his ethnicity. The Tribunal understands that it would fall within the Convention if his ethnicity was only part of the motivation. However for the reasons above the Tribunal is satisfied that it was not his ethnicity but his perceived wealth that led to the problems he faced. In addition, his problems related to his dentist's business. For much of the early 1990s the applicant did not work as a dentist. If he returned he could do other work that would not place him in a situation of being perceived to be wealthy." 33 The Tribunal also rejected, on the basis of country information, the applicant's claim that he would be imprisoned upon return as a warning to others. Essentially the Tribunal concluded that any problems the applicant faced in the past and any problems he would face in the future would be because he was perceived to be rich and not for his ethnic background. 34 Counsel for the applicant contended that there were a number of errors which amounted to jurisdictional error within the meaning of S157. Finding on claims of beating 35 Counsel contended that the Tribunal failed to make a finding as to whether or not the applicant had been beaten on the two occasions when he had been detained by the police. 36 Plainly the Tribunal recorded the claim that the applicant was beaten on both detentions with hose pipes. The Tribunal refers to that claim in the narrative and in the passage quoted above at [32] above again reminds itself of those claims. To my mind the natural meaning of that passage is that the Tribunal is accepting the claim of detention but not the claim of beating. This was a matter entirely dependent on the applicant's credibility which the Tribunal was entitled to accept or reject as part of its fact finding function. 37 In any event the question of whether or not the applicant was beaten in the course of his detention was not a distinct claim in the sense discussed by Allsop J in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]. The real issue in this case was whether the applicant was mistreated in Albania because he was a Greek/Macedonian or whether he was simply the target of extortion because he was perceived to be wealthy. The Tribunal made clear findings on this issue which were adverse to the applicant and the question of whether or not he was beaten was something at the level of evidential material and not a matter which is made "mandatorily" relevant by the Act for consideration; see Minister for Aboriginal Affairs v Peko-Wallsend (1996) 162 CLR 24 at 39, Htun (supra). Membership of social group 38 Counsel for the applicant claimed that the Tribunal failed to address the claim based on the applicant's membership of a social group variously described as "dentists" or "members of liberal professions", "persons perceived to be rich", "Macedonians perceived to be rich" or "Greeks perceived to be rich". 39 The short answer seems to be that such a claim was not made by the applicant. The high point of material said to show that such a claim was made was in the applicant's statement of 23 December 1997 where he said: "Clearly there is generalised corruption but as I made quite clear for me there is specific persecution. Persecution because I am different, persecution and extortion because I am perceived to be an educated professional who is meant to be wealthy and because I was of a minor group (Greek/Macedonian)." 40 While his ethnicity claim was clearly recognised and dealt with as such, the applicant clearly is putting his status as a professional as relevant to his perceived wealth. He is not claiming that he was being persecuted because he belonged to any particular social group, but rather of personal characteristics he was perceived to have. Procedural fairness – joint hearing 41 Counsel submitted there was a breach of natural justice in failing to give the applicant a hearing separate from that of his brothers. 42 However the Tribunal gave the applicant an opportunity to express a view about this at the commencement of the hearing. At the outset the Tribunal said: "Can you just – because you are both brothers I decided that I would get you to come together. Strictly speaking if you wanted to you could each have a separate hearing one after the other but it seems to me much easier for everyone to be here at once. I just need to make sure now before we start that you are happy with that, with what seems to be the obvious course. So you understand? You could each have a separate hearing and you could each call your brother to give evidence but it seems to be to be unnecessarily cumbersome. It is much better for you, if you have got no problems to be both here and then we can talk about it all together." 43 The applicant accepted this. The Tribunal gave the applicant a fair opportunity to express a contrary view. There was obvious logical force in the Tribunal's expressed preference for a joint hearing. The Tribunal was entitled to express that view. This argument is without substance. Procedural fairness – country information 44 There was a complaint, not that country information was not referred to the applicant, but that he was not given adequate opportunity to comment. 45 In fact the Tribunal handed country information documents to the applicant and after briefly describing them said: "Tribunal: Have a look at that anyway. OK. If there is anything else you can think of that you want to tell me can you tell me after the break and then I'll talk to [the applicant's brother]. OK. You want to say something too at some stage, I think? Interpreter: Yes please. Tribunal: We'll just have a 10 minute break and we'll start again at quarter to twelve." 46 The Tribunal adjourned at 11.35 am and on resuming at 11.48 am asked "Anything else you wanted to tell me before I talk to you about it?". 47 The applicant, through the interpreter, then went on to another topic. Even if this material was not within the exception to the obligation to give information contained in s 424A(3), which I am inclined to think was the case, there is no arguable case of unfairness in the way the material was in fact brought to the applicant's attention. Procedural fairness – interpretation 48 An affidavit of an Albanian interpreter was tendered, over the objection of counsel for the Minister. It criticised the standard of the interpretation at the Tribunal hearing. One of the main criticisms was that the applicant was a person who speaks Albanian as an intellectual, a person who is articulate and a clear thinker with excellent language skills yet this "polished image" was not conveyed by the English of the interpreter. Even if this in fact be true, there is a complete lack of any link between a wrongful assessment of the applicant's intellectual ability and Albanian language skills and the decision of the Tribunal. 49 There were numerous other instances where the expert attacked the accuracy of the translation appearing in the transcript. All these were isolated incidents. I am not satisfied that any defects in translation prevented the applicant from putting his case fairly to the Tribunal and understanding the questions the Tribunal asked. Conclusion 50 The application will be dismissed with costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: Counsel for the Applicant: C Fairfield Solicitor for the Applicant: Clothier Anderson & Associates Counsel for the Respondent: S Donaghue Solicitor for the Respondent: Clayton Utz Date of Hearing: 16 December 2003 Date of Judgment: 19 December 2003