M36 of 2003 v Minister for Immigration
[2005] FMCA 224
•22 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M36 of 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 224 |
| MIGRATION – Protection visa – whether jurisdictional error – time limit under s.486A of Migration Act 1958 applies. |
Migration Act 1958, s.417
Maningat v Minister for Immigration and Multicultural Affairs [1998] 443 FCA 30 April 1998
VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255
Plaintiff S157v Commonwealth of Australia [2003] HCA 2 (4 February 2003)
| Applicant: | APPLICANT M36 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 828 of 2004 |
| Delivered on: | 22 February 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 22 February 2005 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms J.K. Macdonnell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the respondent's costs which I shall fix in the sum of $8000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 828 of 2004
| APPLICANT M36/2003 |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter the applicant is a Sri Lankan national who arrived in Australia on 30 July 1997 on a visitors visa. He applied for and was granted a series of visas until 11 September 2000 when he then applied for a protection visa. A delegate of the respondent refused to grant the protection visa on 3 October 2000. On 1 November 2000 the applicant lodged an application with the Refugee Review Tribunal (the RRT) for review of the delegate's decision. The RRT affirmed the delegate's decision on 13 June 2002. It is relevant to note that the application before the RRT was an application which involved a claim by the applicant set out in the RRT decision and described in the following terms:
“The applicant claims that in July 1997 he was in the company of two Tamil friends whose argument over a young woman led to a physical fight during which one of them was bloodied and rendered almost unconscious. He gave evidence that the friend who inflicted the wounds became frightened and prevailed upon him to assist in carrying the injured friend to that friend's house rather than arrange any hospital treatment for him. He claims that they were able to take his friend into the house undetected as everyone present was asleep and that, once there, they cleaned the friend's head wound and applied ice until the bleeding stopped. He claims that his friend who had inflicted the wounds insisted he remain totally silent about the incident.
He claims that the following day while on his way to work he learned that his injured friend had been hospitalized. He claims that he visited him in hospital for a few days running. He claims that the friend who inflicted the wounds asked him to say only that the injured friend had tripped, adding that he had connections with the Liberation Tigers of Tamil Eelam (LTTE) and could harm him or family members if he chose to do so.
The applicant claims that he decided to flee Sri Lanka and left virtually immediately after the aforementioned threats were made. He claims that his injured friend died about a fortnight after his arrival in Australia. He claims that the friend who made the threats against him has intimidated his family by visiting them occasionally since his last departure for Australia.”
It is perhaps relevant and appropriate at this point to set out the following extracts from the RRT's decision under the heading “Discussion of Evidence and Findings” where the RRT states as follows:
“In weighing all the material before it the Tribunal is not satisfied that there was any fight between friends of the applicant leading to either of them incurring bodily injury. It follows that the Tribunal does not accept any threats have been made against the applicant or any of his family members arising out of the alleged incident.
The applicant's claims, in any event, stem from a personal argument and fight between two friends. The applicant has claimed, belatedly, that the friend who inflicted injury on another person was, indeed, a member of the LTTE. The Tribunal is not satisfied either that the alleged fight occurred or that a friend of the applicant was connected to the LTTE. In any event, any such association is incidental to any motivation to inflict harm on the applicant or his family members. If the applicant's story were to be accepted as true it is apparent that any motivation to harm him or family members arises from his friend's desire to conceal his role in an assault that lead to the death of his former friend rather than from race or political opinion or any other Convention ground. The applicant's evidence indicates not that he would have been targeted due to being Sinhalese, or opposed to the LTTE, but because he was a witness to an assault, and therefore, might have implicated the friend who carried out the alleged assault in criminal activity.”
The RRT goes on to conclude, having considered the facts, that:
“… the applicant does not face a real chance of persecution for any Convention reason.”
During the course of submissions made for and on behalf of the parties the court was referred by the respondent to the decision of the Federal Court in the matter of Maningat v Minister for Immigration and Multicultural Affairs [1998] 443 FCA 30 April 1998, and in particular
I was taken to the following extract from the decision of Tamberlin J where his Honour states the following:
“Fear of reprisal or being harmed or "silenced" because a person might be able to give evidence against the perpetrators of a violent or criminal act, without more is not a fear of persecution for a Convention reason. The word "opinion" contained in the Convention is of central importance in this case. The circumstance that the act was carried out by Communists does not mean that the witness was in danger of persecution by reason of opinions held by him. The fact that a person is in fear because he witnessed an abduction is, taken by itself, a neutral circumstance under the Convention. Such fears might equally arise as the result of being a witness to a killing by criminal groups such as the Mafia, where, for example, there may be no suggestion of persecution for holding a political opinion. There was no evidence that he was in any danger of persecution because he did not hold or agree with Communist doctrines.”
It is submitted for and on behalf of the respondent that in essence the facts and circumstances of the present application as raised before the RRT are apposite to the remarks made by Tamberlin J in the Maningat decision. On that basis it is submitted that there is no error at all of a kind which would attract judicial intervention and no jurisdictional error of a kind which would follow applied principles that have been applied since the High Court decision in S157.
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
It is otherwise submitted that the court is entitled to consider and apply the time limit which would otherwise apply to an application which had been made in this case to the High Court for prerogative writs. It is appropriate to further set out the chronology of events to fully understand and appreciate those submissions made on behalf of the respondent.
It appears that after the RRT decision had been made on 13 June 2002 the applicant requested the Minister to exercise his discretion to substitute a decision more favourable to him than the decision of the RRT. This was refused by letter dated 10 February 2003 from the Minister. That letter and related documents have now formed part of what I have described as exhibit R1, being the further supplementary court book. It is clear that the Minister has effectively assumed that the request to consider the matter was a request made of the Minister to exercise powers he has pursuant to s.417 of the Migration Act 1958 (the Act). The Minister declined to exercise that power.
On 25 March 2003 the applicant then commenced proceedings in the High Court of Australia seeking writs of prohibition and a writ of certiorari. Those proceedings were transferred to the Federal Court by order of Hayne J made on 23 February 2004. It was subsequently transferred to the Federal Magistrates Court. On 20 May 2003 the respondent filed an objection to competency of the court to hear the application on the basis that it was not filed within the time required by s.486A of the Act which provides as follows:
“Time limit on applications to the High Court for judicial
review(1) An application to the High Court for a writ of mandamus, prohibition or certiorari or an injunction or a declaration in respect of a privative clause decision must be made to the High Court within 35 days of the actual (as opposed to deemed) notification of the decision.
(2) The High Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 35 day period.
(3) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.”
It was argued on behalf of the respondent that the decision is a privative clause decision and the 35‑day limitation period for the making of an application to the High Court applies because in this case the RRT had made its decision after s.486A of the Act had commenced, namely, on 27 September 2001. It was argued that this court, as indeed the High Court, would not have power to make an order allowing or having the effect of allowing an applicant to make an application in respect of a privative clause decision outside the 35-day limitation period (see Plaintiff S157v Commonwealth of Australia [2003] HCA 2 (4 February 2003) at paragraph 88).
In my view, having regard to the principles which are to be applied in determining whether or not there is indeed a jurisdictional error, I am satisfied in the present application that given the findings made and indeed even the way in which the application was pursued before the RRT, there is no basis upon which this court could conclude that there has been jurisdictional error. In the absence of any jurisdictional error, I am satisfied that the time limit referred to under s.486A of the Act applies.
Even if I were to be incorrect in making that assumption, I am otherwise satisfied that even applying the normal principles which might apply, and even if the court does have power to extend time,
I would not make any order extending time in the absence of any reasonable explanation for the delay, but perhaps more importantly, in the absence of there being any reasonable arguable case, having regard to the analysis that I have made of the RRT decision, which, in my view, had correctly applied the relevant principles. Applying the principles set out by Tamberlin J in the Maningat case to which I have referred, it is clear that in any event even in the absence of that authority, the RRT, in my view, has properly assessed the claim and properly on the material before it made a decision reasonably open to it that there was not in fact a basis upon which a protection visa could be issued to the applicant for Convention reasons.
The court has taken into account and had regard to the grounds relied upon by the applicant in the applicant's contentions of fact and law dated 14 October 2004. None of those matters, in my view, raise any or any sufficient basis upon which this court could conclude there has been jurisdictional error.
In all the circumstances, in my view it follows that as a matter of substance the application should be dismissed with costs.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 22 February 2005
0
12
0