MZWKR v Minister for Immigration

[2004] FMCA 546

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWKR v MINISTER FOR IMMIGRATION [2004] FMCA 546

MIGRATION – Review of decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs – refusal of a temporary entry permit – refusal to grant refugee status – no valid ground for judicial review – delay in applying for review by the Refugee Review Status Committee.

Migration Act 1958 (Cth), ss.417, 48A
Migration Regulations 1994 (Cth)

Applicant: MZWKR

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MZ 253 of 2004

Delivered on: 19 August 2004

Delivered at: Melbourne

Hearing Date: 19 August 2004

Judgment of: Riethmuller FM

REPRESENTATION

Counsel for the Applicant: Appeared on his own behalf

Counsel for the Respondent: Mr Mosley

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The applicant’s application be dismissed.

2. The applicant pay the respondent’s costs fixed in the sum of $6,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 253 of 2004

MZWKR

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an ex tempore Judgment as it is appropriate that the Judgment be given expeditiously due to the fact that the applicant is in detention.

2. The applicant in this case is a 43 year old man born in 1960 in India.  He came to Australia on a tourist visa for one week on 6 November 1986 and has remained in Australia since that time.  His presence in Australia is contrary to the Migration Act 1958 (Cth) (‘the Migration Act’) and the Migration Regulations 1994 (Cth) (‘the Regulations’) and has been since some time in November 1986.

3. On 22 August 1990 he made an application for refugee status under the Migration Act and Regulations as they were at that time. It appears that at that time he would have been seeking a domestic protection temporary entry permit. On 21 November 1991 a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs (‘the decision-maker’) refused to grant refugee status and refused to grant a temporary entry permit. There was at that time an appeal available to the Refugee Review Status Committee, a predecessor of the current Refugee Review Tribunal (‘the RRT’). However, the applicant did not pursue a review by that committee. The committee would have been able to review the application on the merits and hear further evidence from the applicant if the applicant sought to place further evidence before it.

4. In 1998 it appears that the applicant applied for a protection visa of some form but was refused and did not seek a review before the Migration Review Tribunal or the RRT, as the case may have been. In his submissions the applicant also indicated that he had applied for another form of visa in the intervening period but had been refused on the basis of health problems. On 16 February 2004 the applicant was apprehended and has remained in immigration detention since 17 February 2004. On 19 February 2004 the applicant sought (under section 417) to have the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) exercise a discretion to alter his status which was refused by a delegate of the Minister on 3 March 2004.

5. In this case it is not open to the applicant to apply to the RRT as he is around 13 years out of time. It is not open to the applicant to apply for another protection visa unless the Minister gives consent pursuant to section 48A of the Migration Act. It is clear from the material that the file relating to the decision the subject of review, that is, the decision of the decision-maker on 21 November 1991, has since been destroyed and only an incomplete copy of the actual decision remains. The incomplete copy of the decision of the relevant officer appears as Exhibit ‘JAD1’ to the affidavit of Jacqueline Anne Davis.

6. This copy appears to be missing page 1 of the decision, although when one reads the decision pages that remain, it appears that all of the substantive parts are still available.  Significantly, on page 2 of the decision the decision-maker has set out the issues and a summary of the claims by the applicant, together with the evidence and other material upon which the findings are based.  For the purpose of this review it is important to note that the evidence or other material before the decision-maker at the time was an application for refugee status dated 13 August 1990 and a statement in support of an application.  No other documents or materials are listed as having been before the tribunal at that time.

7. The applicant says in his submissions that he came to Australia because there were threats directed at him and his father. It appears clear from the material that some three years after he came to Australia his father was killed in India.  The unfortunate circumstances of his father’s death are discussed in a number of newspaper articles which are annexed to the affidavit of Jacqueline Anne Davis, together with some English translations of those articles.  It is not clear that this material was before the decision-maker at the time.  In fact, the evidence is to the contrary in that the decision-maker on the face of the decision does not appear to have had this material.

8. The only evidence from the applicant with respect to this material is on the second page of his handwritten affidavit to the effect that this material and some submissions were sent to his solicitor or migration agent for forwarding to the Minister.  This is set out in paragraph 1 of what is described as page 1 of his affidavit, although it appears to physically be page 2 of his affidavit.  Because the grammar of the paragraph is not entirely clear, I took the opportunity of clarifying with the applicant that the factual circumstances were: that he had forwarded the material he believed the decision-maker ought to have regard to, to his agent, and asked that the material be forwarded on to the Minister, and expected that that had occurred.

9. As a result of the loss of the Ministers’ file and the lack of any other evidence, there is no evidence before me that the decision-maker either had in their possession or ought to have had in their possession, at least from the perspective of the conduct of the Minister, this further material such as the newspaper articles. The evidence on the face of the decision is to the contrary. Indeed, on the material before me I do not know what was contained in the other material, save for the three articles that have now been produced to and translated by the Minister. 

10. The applicant says that at the time of the decision he was young and did not understand the situation well and that he was ill.  He says that this should be relied upon to explain his failure to apply for a review of the original decision-maker’s decision at the relevant time and when a merits review was available.  He does not provide any detailed affidavit evidence to this effect but made submissions during the course of the hearing. 

11. It appears from his submissions that he renewed his family connections in 2003 and that his mother and two brothers now live in Australia.  He says that he no longer has any connections with India nor family in India and that he would be unable to go back to India because he has been in Australia for some 18 years and that he fears that he would be prosecuted or persecuted if he were to now return.  He says that it was not a deliberate decision of his to go underground and avoid the authorities for the last 13 years, although there is not any particularly satisfying explanation why he did not take some more active steps in the intervening period.

12. The decision that this Court must make is not a merits review of the decision of the officer at the relevant time.  It is not appropriate, nor open, for me to review all of the evidence in order to form my own view as to what an appropriate decision would have been.  It is only open to me to review the decision from the perspective of a judicial review having regard to the various authorities governing the exercise of that judicial process. 

13. It appears that the substantive claim of the applicant, if recast in terms of judicial review, was that the decision-maker failed to have regard to relevant material, namely, the newspaper articles and perhaps other material which cannot be discussed now as there are no longer copies in existence from either party.  There is no evidence that that material was before the decision-maker.  There is therefore no error on the part of the decision-maker in not having regard to material that was not before the decision-maker.  It does not appear to me that any potential misconduct of the applicant's solicitor or agent in failing to forward material is of such a nature as to create a lack of procedural fairness in circumstances where: the decision itself outlined the material that was before the tribunal at the time, and it was clear on the face of the decision that this further material now referred to by the applicant was not before the decision-maker at that time, and that the applicant had open to him recourse by way of a merits review, and potentially recourse by way of an immediate notification to the department that they had not considered all of the material that was meant to be forwarded to them and the potential for further review by the officer at the relevant time.

14. I am therefore not satisfied that this ground is a proper ground for overturning the relevant decision.

15. The balance of the submissions by the applicant really relate to nothing more than a merits review; that is, asking me to come to a different conclusion to that of the original decision-maker.  As indicated earlier in these Reasons, that is not open to me as a matter of law and not appropriate for me to formally consider.  The applicant does not point to or rely upon any apparent error of reasoning or error of law by the decision-maker in the terms of the actual decision.  A reading of the decision shows that it is unremarkable.  It is shorter than decisions that one is used to reading in more recent matters, but that of itself does not mean it is an inappropriate decision. 

16. The decision-maker appears to have dealt with the issues or claims made by the applicant and formed a view with respect to each of those claims.  There is no apparent lack of logic or misconduct on the part of the decision-maker.  For those reasons I am not satisfied that the applicant has made out a valid ground for review of the decision.

17. Even if I were to be wrong in this regard, the applicant faces further difficulties.  His delay in this case of some 13 years is extreme.  There is, in this case, a prejudice to the Minister in that the relevant file and documents have gone missing.  I have been referred to authorities on the question of delay and I am satisfied that as a matter of discretion it would not have been appropriate to allow the application in light of the delay, having regard to the circumstances of this particular case.

18. I am also referred to authorities to the effect that when an alternative remedy is available it ought to be pursued.  In this case there is no evidence before me upon which I could conclude that there is any proper or rational basis for the applicant not having pursued the remedy of review by the Refugee Review Status Committee at the relevant time.  On this basis it would also be proper to refuse the application. 

19. Finally, the applicant has made application to the Minister under section 417 of the Migration Act and indeed in the intervening years has made at least one other application for a visa. I have been referred to the authorities to the effect that this should be seen as an acceptance by the applicant of the decision of the relevant officer back in 1991 and therefore that I should not interfere with that decision.

20. Whilst I am of the view that the recent application to the Minister under section 417 is more evidence of a sense of desperation on the part of the applicant in his current unfortunate circumstances than an implied acceptance of the original decision, the same cannot be said for his previous visa application in 1998, and potentially the other visa application he referred to, although I have no specific evidence with respect to that second application. The present judicial review application should therefore be refused on this basis as well.

21. For these reasons it appears to me that I have no option but to refuse the current application for review of the original decision-maker’s decision. 

22. I therefore refuse the application.

23. In the circumstances of the case the application has been unsuccessful.  It appears clear from the material that it would be difficult for anyone to have concluded that there was even a reasonably arguable case on the part of the applicant.  However, it is quite understandable that the applicant has brought the application given his very unfortunate current personal circumstances as a result of what has gone on over the years from 1986 to the present. 

24. In all of the circumstances I find that it is appropriate that the applicant be ordered to pay the costs of the Minister fixed at $6,500.00. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the Reasons for Judgment of Riethmuller FM

Associate: 

Date: