NATE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 85

FEDERAL COURT OF AUSTRALIA

NATE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 85 NATE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 2261 of 2003 WILCOX J 6 FEBRUARY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 2261 of 2003

BETWEEN: NATE

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WILCOX J

DATE OF ORDER: 6 FEBRUARY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for extension of time to file and serve a notice of appeal be dismissed. 2. The applicant, NATE, pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 2261 of 2003

BETWEEN: NATE

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WILCOX J

DATE: 6 FEBRUARY 2004

PLACE: SYDNEY

REASONS FOR EX TEMPORE JUDGMENT WILCOX J: 1 This application is made to me in my capacity as duty judge. 2 The application is to extend time for the filing of a notice of appeal against an order made by Lindgren J on 18 September 2003. On that day, his Honour had before him an application under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal ('the Tribunal') given on 17 June 2003. The Tribunal had affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, not to grant a protection visa to the applicant. 3 Lindgren J noted that the applicant had been found by the Tribunal to be a national of Iran who had arrived in Australia on 7 February 2003. The claim made by the applicant was that he feared persecution, if he were returned to Iran, on account of his political opinion. 4 It appears that the applicant's father served in the armed forces of the Shah, prior to the 1979 Islamic Revolution. The Tribunal accepted that this service may have led to the applicant's father being persecuted when the applicant was a child. The Tribunal also accepted that the applicant was pro-monarchist in opinion. However, on the basis of country information, the Tribunal found that the current Iranian regime did not regard the pro-monarchical movement as a significant threat to it and that the mere possession of pro-monarchical views was unlikely to cause anybody to suffer persecution. This was, of course, a finding of fact. It is not reviewable in this court. 5 At the hearing before the Tribunal, the applicant gave evidence that he attended a demonstration at Tehran University on 16 Azar 1381, a day variously identified in the Tribunal's reasons as 6 and 7 December 2002. He said that, at about 10.00am on that day, he attended the University with his brother and three other members of a pro-monarchist organisation; they distributed pro-monarchical material to persons both inside and outside the University grounds. The applicant claimed that, at the time, a number of Ansar-e-Hezbollah and police personnel were present at the University with Land Cruisers; he and his colleagues fled the University because they feared apprehension. He said that they went to the house of his brother's friend where they slept the night. On the following day, he and his brother contacted their mother. She told them that people in civilian clothes had come to the house looking for leaflets, so they went into hiding. 6 The Tribunal did not accept that the applicant had attended the University on 16 Azar 1381. The Tribunal noted country information that a large demonstration had occurred at the University on the afternoon of that day, but there was no reference to any demonstration in the morning. The Tribunal member also perceived there to be improbabilities about the detail of the applicant's account of the day. Once again, of course, these were matters of fact for the Tribunal to determine. 7 When the matter came before Lindgren J, the applicant was in court. He was then, and still is, held at Villawood Detention Centre. A solicitor, Ms M Scanlon, appeared on behalf of the applicant. She sought an adjournment of the hearing. Ms Scanlon told his Honour that she had been instructed to act on behalf of the applicant at about 4.30pm on the previous day and that she had little knowledge of the background facts. However, she also informed his Honour that she had spoken to Mr B Levet of counsel and he had expressed the view that there was an arguable issue in favour of the applicant. Mr Levet was not in Sydney on the day of the hearing before Lindgren J and Ms Scanlon was not able to identify the arguable issue. 8 Lindgren J could not discern any jurisdictional error by the Tribunal. No jurisdictional error had been identified to him by or on behalf of the applicant. Accordingly, and not surprisingly under the circumstances, his Honour refused the adjournment application and ordered that the application be dismissed. However, in recognition of the fact that Ms Scanlon had attributed to Mr Levet an opinion that there was an arguable point, his Honour directed that the respondent not enter the order of dismissal until Tuesday, 21 October 2003, some five weeks after the date of his Honour's decision. His Honour had in mind the possibility that the applicant might wish to take advantage of Order 35 rule 7(1) of the Federal Court Rules and apply to have the order of dismissal set aside before it was entered. 9 No application was made within the time allowed by Lindgren J. However, after the entry of judgment on 21 October 2003, an application to set aside the order was filed. It was considered by Lindgren J on 11 November 2003 and dismissed. The applicant was represented by a solicitor on that day but no jurisdictional error was identified for his Honour's consideration. 10 An application for extension of time to file and serve a notice of appeal was faxed to the Registry on 5 December 2003 and was accepted for filing on 8 December 2003. That is the application that is currently before me. As originally framed, the application sought to appeal against Lindgren J's decision of 11 November 2003. Subsequently, by leave, the application was amended so as to direct the proposed appeal to his Honour's decision of 18 September 2003. 11 During the course of the hearing, I pointed out to Mr T Cordiner, probono counsel for the applicant, that his Honour's decision of 18 September 2003 to refuse an adjournment and dismiss the application involved discretionary considerations. Mr Cordiner accepted that view. However, he suggested that his Honour's decision had miscarried because he had failed to identify arguable jurisdictional errors that appeared in the Tribunal's reasons for decision. He then took me to the alleged jurisdictional errors. 12 The first alleged error was what Mr Cordiner called 'circular reasoning' at page 30 of the Tribunal's decision. He identified the circular reasoning, in his written submissions, in this way: 'By finding that the pro-monarchist movement in Iran was all but "wiped out", the Tribunal concluded that Iranian authorities and vigilantes would not be interested in the appellant to the level he claimed.' Mr Cordiner said it would not have been necessary for the authorities to be concerned about the applicant's pro-monarchist views; it would have been sufficient that they were concerned about the anti-government activities of his brother and himself. 13 I understand the force of Mr Cordiner's criticism but I do not think it is a case of circular reasoning. The Tribunal's view was a conclusion on a factual matter which may or may not be a sound one. The Tribunal's comment about the authorities' likely concern about pro-monarchical views was only one of many factors that caused the Tribunal not to accept the applicant's evidence that he had attended a demonstration at the University on the relevant day. Whether or not the Tribunal's conclusion that the applicant did not do so is satisfactory, the conclusion is not, in my opinion, arguably an error of a jurisdictional nature. 14 I think the same comment must be made about the second alleged defect. This was described as irrationality. The irrationality was said to consist of the fact that the Tribunal would not accept that the applicant was at the demonstration in the morning simply because the country information indicated that the demonstration was held in the afternoon and, indeed, advertised to commence at 1.00pm. 15 Once again, it seems to me that this is entirely a matter of fact. The reasons given by the Tribunal for not accepting that the applicant had attended the demonstration in the morning or, indeed, that there was any demonstration in the morning, were numerous and plausible. Whether or not that was the correct finding of fact is not a matter for me to determine. 16 I do not think there is any arguable jurisdictional error in this case; none strikes my eye in reading the decision. I do not think there was material before Lindgren J that should have caused his Honour to think it would have been incorrect for him to dismiss the application. 17 There has been delay in pursuing the proposed appeal. However, I do not base my decision upon that ground. I bear in mind that the applicant has been held in detention. If I thought there was an arguable jurisdictional error in the Tribunal's decision, I would be inclined to overlook the delay and allow the Full Court to consider the argument of jurisdictional error. 18 However, despite the fact that the applicant has had the benefit of two hearings of his case in this Court, on each occasion being represented by a legal practitioner, no jurisdictional error has emerged. Under the circumstances, it would not be a correct exercise of the Court's discretion for me to extend the time for an appeal. 19 The order that I make is that the application for extension of time to file and serve a notice of appeal be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.