MZWYE v Minister for Immigration

[2005] FMCA 808

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWYE v MINISTER FOR IMMIGRATION [2005] FMCA 808

MIGRATION – Refugee Review Tribunal – judicial review – application eight years after decision – no time limits apply under Act – abandonment of claim – arguable case not demonstrated – refusal of application.

Migration Act 1958 (Cth)

Moradian v Minister for Immigration [2004] FCA 1590

Re Cuth; ex parte Marks [2000] HCA 67
S58 of 2003 v Minister for Immigration [2004] FCAFC 283

Applicant: MZWYE

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MLG 301 of 2005

Delivered on: 15 June 2005

Delivered at: Melbourne

Hearing date: 6 May 2005

Judgment of: Riethmuller FM

REPRESENTATION

Counsel for the Applicant: Mr Anger

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr Mosby

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant do pay the respondent’s costs fixed in the sum of $3,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG301 of 2005

MZWYE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. On 24 March 2005, the applicant commenced proceedings in the Federal Magistrates Court seeking judicial review of a decision of the Refugee Review Tribunal (‘the RRT’) on 19 February 1997. 

2. The application itself does not set out the grounds upon which the relief is sought. 

3. On 6 April 2005, the respondent entered a notice of appearance and on 8 February 2005 objected to jurisdiction.  The Notice of Objection to Competency is in the following terms: 

   The respondent objects to the jurisdiction of this Court in this proceeding on the grounds that:

   (a) the decision of the Refugee Review Tribunal of 19 February 1997 is a privative clause decision pursuant to sub-section 474(2) of the Migration Act 1938 (Cth) (“Act”);

   (b) if the decision is a reviewable decision, which the Respondent does not admit, the applicant had 28 days to apply for judicial review of the decision pursuant to sub-section 477(1) of the Act; and

   (c) the applicant has failed to make an application for review within the time limit prescribed by sub-section 477(1) of the Act.

4. It is appropriate that I deal specifically with this Notice of Objection to Competency as a number of similar notices are filed in migration matters. 

5. Whether or not the decision is a privative clause decision depends upon whether or not there is jurisdictional error.  That is, if a constitutional writ issues in the matter then it is not a privative clause decision within the meaning of s.474(2) of the Act.  It follows, as a matter of course, that the time limit in s.477(1) does not apply unless the decision is, in fact, a privative clause decision: see Moradian v Minister for Immigration [2004] FCA 1590 where Gray J said:

   44 …A denial of procedural fairness is a jurisdictional error, sufficient to render the decision of the Minister’s delegate to refuse to grant the visa other than ‘a decision...made...under this Act’ for the purposes of the definition of ‘privative clause decision’ in s 474(2) of the Migration Act. This means that s 474(1) of the Migration Act does not prevent the Court from granting relief of a kind sought in this proceeding in respect of the decision. It also means that the time limits for an application, prescribed by s 477 of the Migration Act, do not apply. It therefore does not matter that Mr Moradian made his application outside the time that would otherwise have been applicable. See generally Plaintiff S157/2002 v Commonwealth of Australia[2003] HCA 2 (2003) 211 CLR 476.

6. In the circumstances, I see no basis for the objections to competency set out in the notice.

7. On 29 April 2005, the Minister filed a Notice of Motion seeking dismissal on the following basis: 

   1.the application be dismissed on the ground that the application is barred by the time limits prescribed by s.477(1A) of the Migration Act 1958 (Cth); and, or in the alternative

   2.be refused pursuant to rule 13.10(c) of the Federal Magistrates Court Rules as a result of the inordinate delay between the cause of action arising and the application for review; and

   3.the applicant pay the respondent’s costs of and incidental to this motion; and

   4.such further or other orders as the Court thinks fit.

8. In support of the Notice of Motion, the respondent filed an affidavit confirming that the RRT decision was in February 1997 and providing some further background history in the matter as follows: 

   5. By letter dated 27 Feb 1998, the applicant’s wife applied for a special needs relative visa. The applicant and their two children were included in the application.

   6. The applicant’s wife was notified that her application for a special needs relative visa had been refused by the respondent’s delegate by letter dated 21 November 2001.

   7. On 17 December 2001, the applicant’s wife filed an application with the Migration Review Tribunal (“MRT”) for review of the delegate’s decision notified to her by letter of 2l November 2001. The applicant and their two children were also included as part of the application.

   8. On 30 May 2002, the MRT affirmed the delegate’s decision to refuse the grant to the applicant’s wife of a special needs relative visa.

   9 On 26 June 2002, the applicant’s wife filed, in the Federal Magistrates’ Court (proceeding number MZ628 of 2002), an application for an order of review of the MRT decision dated 30 March 2002. The solicitors on record at the time of the application was Armstrong Ross, Solicitors. The application was heard by Bryant CFM on 5 December 2002 and, on 17 February 2004, Bryant CFM dismissed the application for review. At the hearing, Tom Hurley of counsel appeared on behalf of the applicant’s wife, instructed by Armstrong Ross, Solicitors.

   10. By way of a notice of appeal filed on 9 March 2004 (proceeding V286 of 2004), the applicant’s wife appealed the decision of Bryant CFM to the Federal Court. The solicitors on record at the time the notice was filed was Phillip Zalman Shulman, Solicitor. The appeal was heard by Kenny J on 1 December 2001, at which time the appeal was dismissed. At the hearing, Tom Hurley of counsel again appeared on behalf of the applicant’s wife, instructed by Armstrong Ross, Solicitors.

   11. On 22 December 2004, the applicant’s wife filed in the High Court (proceeding number M221 of 2004) an application for constitutional writs in relation to the MRT decision. At the time of the application, the applicant’s wife did not have legal representation.

   12. The application was listed for call-over on 16 March 2005. On 11 March 2005, the applicant’s wife contacted the offices of Clayton Utz informing us of her wish to discontinue her application. On 15 March 2005, signed proposed minutes of consent orders regarding discontinuance of the application was filed in the High Court and, on 15 March 2005, the High Court made orders for the discontinuance.

9. In response to the motion, the applicant filed a very brief affidavit in the following terms: 

   1. I am the first Applicant in this matter and I am a Sri Lankan national.

   2.I make this affidavit based upon by own knowledge and upon documents available to me at this time concerning the application made by me to the Department of Immigration and Multicultural and Indigenous Affairs for a protection visa.

   3.1 am a citizen of Sri Lanka and was employed as a Manager at an Indian owned Company in Sri Lankan before I sought protection in Australia.

   4.I arrived in Australia on 2 April 1996 on a Visitor visa. I applied for a Class XA subclass 866 Protection (Permanent) visa on 18 June 1996 because I was fearful for the safety of myself and my family returning to Sri Lanka. This Application was rejected on 22 August 1996 by the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”). I then applied for a review to the Refugee Review Tribunal (“RRT”) on 12 September 1996 and the RRT handed down a decision affirming the DIMIA decision on 19 February 1997. Attached here and marked with the letters “SKDA 1” is a copy of that decision.

   5.1 was advised of no further rights than making an Application to the Minister of Immigration and Multicultural and Indigenous Affairs (“Minister”) by my then Migration Agent and I accordingly followed the advise and made a request to the Minister [sic].

   6.By letter dated 18 February 1998 the Minister rejected my request. Attached here and marked with the letters “SKDA 2” is a copy of that letter.

   7.Due to my involvement with the UNP political party and the links to “Tamil” friends, that Singhalese suspect to be LTTE supporters, myself and my wife and I was arrested, tortured and persecuted by Sri Lankan Authorities on different occasions and has been a clear target for the Authorities.
   I feel unsafe to return back to Sri Lanka. I fear for my life and my wife & children’s safety and request this Honourable Court to grant me leave to make this application out of time.

10. It is apparent from the affidavit filed by the applicant that there is nothing in his material filed up to the day of the hearing of the Notice of Motion to indicate any arguable basis for the claim. The claim was the subject of inordinate delay and arguably had been abandoned when the applicant chose to participate in alternative proceedings for a different type of visa.

11. At the hearing of the Notice of Motion, the applicant's counsel tendered two documents that had been faxed from his solicitor.  The first document is a warrant of arrest issued under s 84 of the Administration of Justice Law of Sri Lanka.  The document is difficult to read and largely in Sinhalese, but appears, at least on the face of it, to have been an arrest warrant issued on 24 October 1996 with respect to the applicant on the grounds that he was "suspected of terrorism".  The second document is a faxed letter apparently from Mr Patrick Wickremesingh, attorney at law from Sri Lanka and dated 20 November 1996, which states: 

    TO WHOM IT MAY CONCERN

    This is to certify that Mr [the applicant] of [address] is wanted by Sri Lankan Police in connecting with hourboring a Tamil boy who is suspected to have connection with Central Bank Bomb Blast. He is being searched by Police from September 1996. He has been issued with open warrant by Mount Lavinia Magistrate Court to arrest him at sight. This warrant is issued by virtue of gazzett No. 542/2 of 1994 October 20th.

12. Counsel for the applicant stated from the Bar table that the applicant's case was based upon an alleged failure of the RRT to accord the applicant procedural fairness in failing to adjourn the proceedings to allow him to obtain documents to prove his case, such as the two documents tendered.

13. At page 5 to 8 of its decision the RRT considered at some length a claim by the applicant that he feared the security forces in Sri Lanka as a result of not registering his Tamil boarder. 

14. The RRT noted that young Tamil men from Jaffna were the principal target of the government's security and terrorism prevention measures and that they had to carry registration papers with them and be registered.  The RRT had some reservations as to the reasons that the applicant gave for not registering his boarder (that he was known to one of the applicant's friends and was friendly with the family), however the RRT member concluded that he would ‘extend the benefit of the doubt to the applicant’. 

15. The RRT accepted that the applicant was not aware that the Tamil boarder was arrested or involved in terrorist activities until the applicant was arrested on 15 March 1996, but found that it was most unlikely that the police seriously entertained the thought that as a Singhalese and active member of the UNP the applicant had knowingly harboured an LTTE militant.  In making this finding, the RRT stated:

    My finding is supported by the fact that no charges were laid against the applicant.  Even if the police lacked evidence that the boarder was linked to the LTTE and the applicant was linked to the boarder, they could have charged him with failing to register the boarder - which they did not.

    I can only conclude from the foregoing that either the police were satisfied that the Tamil boarder was not, in fact, an LTTE militant or that, if they found that he was an LTTE militant who had been involved in the Central Bank bombing some weeks earlier, the applicant himself was not under suspicion of involvement.  I am also of the view that the applicant was aware of the fact that he was not suspected of knowingly harbouring an LTTE militant.  It is inconceivable, in my view, that if the applicant, who is an articulate and intelligent person from a "well to do" family, believed that he was wrongly suspected of being involved in terrorist activity he would not have sought legal assistance.

    I accept that the applicant was mistreated by the security forces; however, having regard to all the evidence, I can only conclude that either the security forces initially thought he may have been connected with the LTTE – unlikely though this was for a Singhalese – and later concluded that he was not; or that his mistreatment was in relation to his not having registered the boarder as required; or, having regard to the fact that this was only weeks after the Central Bank bombing, perhaps even just because he was a Singhalese who was prepared to take on a Tamil boarder.  In my view, the fact that no charges were laid against the applicant is significant and I agree with the delegate that this indicates the police were effectively finished with him.

16. The RRT ultimately concluded, on this issue:

    Having regard to all the evidence, I am satisfied that the authorities have no further interest in the applicant in relation to the boarder and I do not believe that the police and army go to the applicant's house inquiring after him.

17. If it is the case that the two documents tendered are, in fact, genuine (and there is no evidence before me one way or the other in this regard), then they are diametrically opposed to the findings of fact made by the RRT.

18. Of course, errors of fact in findings by the RRT are not of themselves grounds for judicial review, even if the errors of fact are significant.  If this was a basis for judicial review, on its own, then every case would need to be reheard and the findings of fact by the Court judicially reviewing the decision would overtake the findings of fact of the RRT.  This would result in a process of merits review.

19. However, a jurisdictional error will occur if an applicant is not accorded procedural fairness.  If the applicant had sought an adjournment specifically to provide these documents or similar and been denied a reasonable period of time to produce them then this may be (although wouldn’t’ necessarily be) a jurisdictional error as a result of a failure to provide procedural fairness. There is no evidence before me to provide any factual foundation for such a claim.

20. The material provided by the applicant appears, on its face, to be significantly different evidence to that before the RRT, which could result in different findings by the RRT (if the documents were accepted), and which are central to the ultimate decision of the RRT.  However, I have no evidence before me that an adjournment was in fact sought from the RRT. Nor is there any evidence confirming the genuineness of the documents tendered from the bar table, when they were provided, or what steps, if any, were taken to produce them to the RRT.

21. In this case, I must also have regard to the inordinate delay in bringing the proceedings, which of itself would be sufficient to allow the Notice of Motion filed by the Minister: see Re Cuth; ex parte Marks [2000] HCA 67 and S58 of 2003 v Minister for Immigration [2004] FCAFC 283.

22. In addition, I note that the applicant participated in alternative visa proceeding applications, effectively abandoning his claim with respect to a protection visa for the last seven to eight years.

23. In the absence of evidence from the applicant (at least by an allegation in an affidavit) that he sought to produce these documents to the RRT, or sought an adjournment from the RRT for a reasonable period, in order to enable him to produce this material, there is no evidence before me that the applicant has a prima facie or arguable case for judicial review for jurisdictional error. 

24. In these circumstances, and the inordinate delay, and the apparent abandonment of the claim by the applicant, I find that the proceedings ought to be dismissed, as sought by the Minister in the motion filed on 29 April 2005.

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

Associate: 

Date: