Naguit & Anor v Minister for Immigration
[2005] FMCA 930
•14 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAGUIT & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 930 |
| MIGRATION – Delay in initiating review application – explanation for delay – in adequate explanation – exercise of discretion to dismiss application because of delay. |
Migration Act 1958, s.6A(1)
M206 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 24
Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Re Refugee Review Tribunal; Ex parte Aala (2001) 204 CLR 82
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 451
VWBS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 464
Applicant A16 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 567
M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 290
| Applicants: | ALFREDO NAGUIT and NETINA PAEZ NAGUIT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG343 of 2004 |
| Delivered on: | 14 July 2005 |
| Delivered at: | Melbourne |
| Hearing date: | 9 March 2005 |
| Judgment of: | O’Dwyer FM |
REPRESENTATION
| Counsel for the Applicants: | Mr. Krohn |
| Solicitors for the Applicants: | Zolis Lawyers |
| Counsel for the Respondent: | Dr. Donaghue |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application for Review filed on 22 March 2004 and amended on
28 June 2004 and further amended on 23 July 2004 is dismissed.The Applicants’ pay the Respondent’s costs fixed in the sum of $17,852.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 343 of 2004
| ALFREDO NAGUIT and NETINA PAEZ NAGUIT |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This proceeding came before the Court on 9 March 2005 for a final hearing of the Applicants’ application for review of a decision of the Respondent’s delegate, made on 26 November 1991, not to ascribe refugee status to the Applicant.
A threshold issue for the Court was the question of whether the application should be entertained having regard to a delay in excess of 12 years from the time of the decision to the filing of the application.
I determined that the application should be dismissed without otherwise undertaking an evaluation of its merits because of that delay. Set out below are my reasons.
It is to be noted that the time for any appeal against my decision runs from the day my reasons are handed down, and not the day I delivered my decision.
Background
The Applicants are husband and wife, both of whom are citizens of the Philippines. The husband, Mr Alfredo Naguit is the primary applicant and any further reference to the Applicant is a reference to him.
The wife’s application is dependent on the success of the Applicant. She entered Australia in June 1988 and does not claim to be a refugee.
The Applicant, who is 61 years of age, arrived in Australia on
30 April 1987.
On 11 May 1987, he lodged an application for resident status in Australia based on strong compassionate or humanitarian grounds.
In the application, the Applicant claimed that he would face persecution at the hands of the communist National Peoples’ Army (NPA) on the basis that during his employment as a policeman between 1969 and 1987, part of his duty, between 1981 and 1986, was to be a bodyguard to the mayor of Arayat. He claimed that, as a member of the police force, and as a bodyguard of the mayor, he was considered an enemy of the NPA.
On 27 August 1987, the Applicant was advised that his application for refugee status had been refused on the grounds that his claims did not provide sufficiently strong compassionate or humanitarian grounds to warrant the grant of permanent residence status pursuant to the then s.6A(1)(e) of the Migration Act 1958.
On 7 September 1987, the Applicant applied to the Immigration Review Panel (IRP) seeking review of the initial decision.
On 23 May 1988, the IRP affirmed the decision of the primary decision–maker.
The Applicant sought further review of the refusal to recognise him as a refugee from the Determination of Refugee Status committee (DORS committee). On 21 July 1989, the DORS committee unanimously recommended against the granting of refugee status to the Applicant.
On 21 September 1990, the Applicant submitted a request to the DORS Committee for reconsideration of its 1 November 1989 decision.
That request included submissions and other material directed to the points raised in the DORS committee’s first assessment.
On 9 November 1990, the DORS Committee again unanimously decided that the Applicant should not be recognised as a refugee.
By letter dated 20 December 1990, the Department advised the Applicant that a new system for determining refugee claims had commenced on 10 December 1990. The Applicant was advised that the system provided for review of decisions to refuse refugee status by a new body, the Determination of Refugee Status Review Committee (RSRC). That committee comprised representatives from the Department of Immigration and Ethnic Affairs, the Department of Foreign Affairs and Trade (DFAT), the Attorney-General’s Department, and a nominee of the Refugee Council of Australia. Additionally, a representative of the United Nations High Commissioner for Refugees acted as an adviser to the Committee. The Applicant was advised that he could seek review from the RSRC of the decision of the DORS committee, and he did so.
On 28 August 1991, the RSRC recommended to the delegate of the Respondent that the Applicant not be granted refugee status.
The Applicant was afforded, and took advantage of, an opportunity to comment on that recommendation.
On 26 November 1991, the delegate accepted the recommendation of the RSRC (the Decision). It is that Decision that is challenged in the present proceedings. The main reasons for the Decision were that:
(a)there were doubts about the Applicant’s claim that six of his former bodyguard colleagues had been killed by the NPA, but even if he was afforded the benefit of the doubt on that point, if the NPA had been interested in harming the Applicant it had had ample opportunity to do so before he left the Philippines;
(b)while the Applicant may have had a well–founded fear of returning to his home town of Arayat, given his rank it was unlikely that he would be a national target because the NPA works on a system of national cells and would only co-ordinate a nationwide effort for a target of national importance. The Applicant was not such a target;
(c)the source of the information provided by the Applicant purportedly from the Philippines Consul that the Applicant would be on a NPA hit list could not be verified and, as it conflicted with other evidence provided by DFAT (which the delegate preferred), little weight could be attached to it;
(d)any threat posed by the NPA would have diminished given the length of time the Applicant had been away from the Philippines (I note that this factor would, in my view, almost certainly be fatal to the Applicant’s desired outcome if this matter where to be remitted to a delegate for reconsideration were the Applicant to succeed in the present proceeding); and
(e)the Applicant could avail himself of the protection of the Philippines government and, if necessary, relocate to another area.
The Applicant took no steps to challenge the Decision. I take that as indicative of the Applicant’s acceptance of the Decision which is another important element to be considered when determining the exercise of my discretion (see M206 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 24 at [15]. Instead, the Second Applicant applied for permanent residence. That application was refused in September 1995, and an application by the Second Applicant to the Immigration Review Tribunal was dismissed in July 1996.
The Applicant subsequently went into hiding. He was not located until March 2004.
On 27 March 2004, the Applicant commenced proceedings in this Court in which he sought judicial review of a decision made on or around November 1989. An amended application was filed on
24 June 2004 which altered the Decision under challenge, as a result of which the proceeding now challenges the Decision. A further amended application was filed on 23 July 2004.
The question of delay
(a) Relevance of delay
The Respondent contended that a lengthy delay in commencing judicial review proceedings can result in the refusal of relief even if the decision that is challenged involved a jurisdictional error. If that were not so, then the existence of a discretion to refuse relief as a result of delay would be meaningless, because the only cases that would be affected by the discretion would be cases that would have failed in any event (because they did not involve error). It would mean that it would be possible to set aside a flawed decision years after the decision was made, irrespective of the fact that the person had sat on his or her rights without adequate explanation and irrespective of the damage that would cause to the public interest in certainty and finality in decision-making. I accept this contention by the Respondent as being correct in principle.
The authorities are clear that relief should be refused by the Court in the exercise of its discretion if there has been a lengthy delay in commencing proceedings, irrespective of the merits of the case, in the absence of exceptional circumstances that explain the delay (see Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
(Ex parte Marks); Re Refugee Review Tribunal; Ex parte Aala (2001) 204 CLR 82 at 106 – 107 [53], 108 [53] – [57]; S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 451 (S58) at [16] – [17]; VWBS v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCA 464 at [10] – [21]; Applicant A16 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 567 at [12] – [13].
In Ex parte Marks, 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…”
If, as McHugh J suggests, even a meritorious case will fail if a person consciously delays for 17 months in challenging an administrative decision, then it seems clear that a 12 year delay could never adequately be explained unless caused by the conduct of the Respondent. In this case there is no suggestion on the part of the Applicant that the Respondent is responsible for the delay.
The second important case is S58, in which Madgwick J considered a case in which there had been a delay of 5 years in commencing proceedings. The matter had been remitted from the High Court, so it was necessary to consider whether the time limits in the High Court Rules for applications for the writs of certiorari and mandamus should be extended. As there is no time limit for prohibition, however, it was also necessary for Madgwick J to consider whether prohibition should be refused in the exercise of his discretion. Importantly, Madgwick J regarded the factors that were relevant to the discretionary refusal of prohibition as being the same as those relevant to whether extensions of time should be granted under the High Court Rules (thereby demonstrating the relevance of Ex parte Marks, even though it was a case that involved an application for an extension of time).
In comments with obvious relevance to the present case, Madgwick J said at [21]:
“…in my opinion it would be quite wrong, even if the applicant has a good case on its merits for constitutional relief and notwithstanding the possible importance of the case to him, to sanction such a long and poorly explained delay. Where there is a format time limit, I would not extend time to permit him to claim the relief sought. Further, I would as a matter of discretion decline, on the ground of the applicant’s long and unsatisfactorily explained delay, to grant any relief to which he might otherwise be entitled.” (emphasis added)
(b) The explanation for the delay that has been advanced
In the course of resisting the Respondent’s motion for summary dismissal, the Applicant relied upon two affidavits in which he attempted to explain the lengthy delay in commencing proceedings. The explanations advanced in those affidavits, being the affidavits of the Applicant and his daughter, Ms Tienzo, both sworn on 18 August 2004, do not establish, in my view, the ‘exceptional circumstances’ that are required to justify any delay that exceeds 12 months, let alone
12 years.
Neither of the affidavits contains any explanation for the Applicant’s failure to challenge the Decision in the periods between 1991 and 1995. The affidavits note that the Applicant’s wife had applied for permanent residency in September 1991, and that she was not refused until September 1995. The fact that his wife had applied for a different type of permission to remain in Australia does not explain the Applicant’s failure to challenge the decision to refuse to recognise him as a refugee if he considered that decision to be wrong.
After 1995, while some explanation for the delay is attempted, the explanation advanced is not one to which this Court can properly give weight. In substance, what is said is that the Applicant did not think that he would succeed in any challenge to the Decision, so he chose instead to go into hiding. The affidavits reveal that the Applicant adopted a deliberate strategy to evade Australian migration law in the hope that at some future time there may be an amnesty. Extraordinarily, the Applicant now claims, as an excuse for his failure to challenge the Decision in a timely manner, that he could not have done so while remaining in hiding from immigration authorities.
In my view, it cannot be accepted that a person who has deliberately breached immigration laws can use that breach to provide an explanation for an exceptionally long delay. This Court does not, cannot, accept that proposition.
Further, the Applicant never departed from his strategy of hiding from the authorities. The present proceeding has been brought now only because the Applicant was apprehended.
Parts of the Applicant’s affidavits attempt to explain the delay in challenging the Decision by reference to his fear of persecution.
In effect, it is suggested that his behaviour was reasonable in light of the persecution that he will experience if he returns to the Philippines. The Court does not accept that argument. In my view, I am entitled to be cognisant of and rely upon, for the purpose of evaluating this contention, the fact that the administrative decision–makers entrusted with making decision on the merits of Applicant’s refugee claim have rejected that claim. The claim was in fact considered 5 times at the merits stage, and on every occasion the claim was rejected.
The Applicant now asks this Court to proceed upon an assumption as to the underlying facts that is contrary to the findings upon which the very decision that he now seeks to challenge was based. As the Full Federal Court explained in M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 290 at [73] - [76], [81] and [83] that is not permissible. It is not for this Court to reconsider the merits of the Applicant’s claim to fear persecution in a form of collateral attack on the fact finding of the relevant administrative decision–maker.
Nothing else in the affidavits advanced by the Applicant explains the 12 year delay in commencing the proceedings. Much of the affidavit material relates to the Applicant’s employment (which is plainly irrelevant) and to the health of his daughter (which is relevant to a compassionate claim, but does not explain the delay in litigating this claim). The affidavits also claim that the Applicant has been law abiding, which is a highly selective claim in light of his deliberate evasion of migration authorities, and the application of the law relating to migration and reviews of administrative decisions made there under.
Conclusion
In summary, there is no explanation at all for the Applicant’s failure to challenge the Decision for approximately three years after it was made. That delay, alone, may well have been sufficient to justify the discretionary refusal of relief even if the Decision did involve jurisdictional error. For almost ten years thereafter, however, the reason advanced for the delay is that the Applicant was evading migration authorities, and therefore could not pursue proceedings in the Courts. That circumstance does not properly explain the delay at all, and certainly does not constitute the ‘exceptional circumstances’ needed when the delay in commencing proceedings has exceeded a period of 12 months, let alone 12 years.
For the above reasons I exercised my discretion and dismissed the application for review filed on 22 March 2004, as amended on 28 June 2004 and further amended on 23 July 2004.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate:
Date: 14 July 2005
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