S146 of 2003 v Minister for Immigration

Case •

[2005] FMCA 1877

•

15 December 2005

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S146 of 2003 v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1877

MIGRATION – Immigration – application for review of a decision of the Refugee Review Tribunal – whether any reviewable error disclosed by decision of the RRT – where Applicant did not attend RRT hearing – delay.

PRACTICE & PROCEDURE – Delay – where Applicant notified of RRT decision on 30 January 2002 – where application for order nisi filed at High Court on 23 April 2003 – application remitted to Federal Court on 25 August 2003 and transferred to Federal Magistrates Court on 5 August 2005 – delay of nearly 15 months – relief refused on discretionary grounds for unwarranted delay.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.426A

SBBS v Minister for Immigration [2002] FCAFC 361
R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565
S58/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283
Re Commonwealth of Australia and Anor; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491
SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306
SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811

Applicant: APPLICANT S146 of 2003
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 2295 of 2005
Delivered on: 15 December 2005
Delivered at: Sydney
Hearing date: 15 December 2005
Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Ms Griffin
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,700.00.

  3. I allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2295 of 2005

APPLICANT S146 of 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal made its decision on 28th December 2001 after a hearing scheduled for 11th December 2001. The Applicant did not attend the Tribunal hearing. 

  2. The Refugee Review Tribunal handed its decision down on 30th January 2002. The Tribunal's decision was to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant the Applicant a protection visa. 

Background

  1. The Applicant is a citizen of Nepal. On 11th January 1999 he applied for a protection (class AZ) visa, claiming a fear of persecution on account of his political opinions. A delegate of the Minister refused his application on 19th February 1999. 

  2. On 18th March 1999 the Applicant applied to the Refugee Review Tribunal for a review of the delegate's decision.  The Tribunal wrote to the Applicant at both his residential address and his adviser's address on 8th November 2001, advising that it had considered all the papers relating to his application but was unable to make a favourable decision on that information alone. 

  3. The Tribunal invited the Applicant to attend a hearing to give oral evidence and present arguments on 11th December 2001. The Tribunal did not receive a reply. The Tribunal proceeded to make inquiries from the Applicant's adviser who informed the Tribunal on 7th December 2001 that the adviser would contact the Tribunal, presumably after ascertaining the Applicant's intentions. The Applicant's adviser did not contact the Tribunal. 

  4. The Applicant did not attend the Tribunal hearing on 11th December 2001.  The Tribunal noted at p.5 of the decision:

    The Applicant did not attend the hearing or attend at the Tribunal at any time during the day on 11 December 2001.

    The Applicant has not contacted the Tribunal to explain his failure to attend or to seek an adjournment.

    In these circumstances and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 

  5. The Tribunal proceeded to carry out the review. The Tribunal member noted that, in essence, the delegate had found that the Applicant did not face a real chance of persecution.  The Tribunal member continues at p.6 of the decision:

    On the application for review form and in response to the question, ‘Your reasons for making this application’, it was merely stated: ‘Will be sent later.’  The Tribunal has received nothing further from the Applicant and it is unclear on what basis the Applicant disagreed with the delegate's decision. 

  6. The Tribunal stated that the Applicant had provided only vague details in support of this claims. He provided no information about his specific activities, or when any of the events such as threats, harassment, attacks or abuse had occurred. No information was provided as to the nature and extent of the threats and attacks claimed by the Applicant or the details surrounding the attempts on his life. 

  7. The Tribunal made this finding at p.8 of the decision:

    In the circumstances, I am unable to satisfy myself as to the reliability or the significance of the applicant's claims in relation to his involvement in the Nepalese Congress Party or why he in particular would have been of interest to the Maoists.  Indeed I am unable to be satisfied on the evidence before me if there is anything to his assertions that he is of adverse interest to the Maoists or that he was targeted for mistreatment by them. 

  8. The Tribunal made these findings at p.9 of the decision:

    The Applicant has been put on notice by the delegate's decision that his fear of persecution was not well-founded. He has not sought to challenge the delegate's decision in a meaningful way.  He has not provided any information to the Tribunal which would enable me to be satisfied that his fear of Convention-related persecution is well-founded and that he is unable to avail himself of the protection of his country of nationality. 

  9. The Tribunal affirmed the decision of the delegate of the Minister not to grant a protection visa. 

Submissions

  1. I refer to an affidavit made by Angela Margaret Nanson, solicitor, on 21st November 2005 in which she sets out the history of this matter.  She notes that on 30th January 2002 a copy of the Tribunal's decision was sent by the Tribunal to the Applicant by registered post. The affidavit says that on 14th February 2002 those documents were returned to the Tribunal marked "left address". 

  2. On 23rd April 2003 an application for an order nisi was filed in the name of the Applicant in the Sydney office of the Registry of the High Court of Australia. On 25th August 2003 by order of Heydon J the matter was remitted to the Federal Court of Australia. On 5th August 2005 by order of Emmett J of the Federal Court the matter was transferred to the Federal Magistrates Court. 

  3. The Applicant has filed a Written Outline of his Submissions on 7th November 2005. In that Outline of Submissions he claims that the Refugee Review Tribunal did not act in good faith in his case. He complained that the Refugee Review Tribunal did not make a bona fide attempt to exercise its power to review the delegate's decision. The reason that he claimed that the Refugee Review Tribunal did not act in good faith was that he was not aware of the RRT hearing because he said his migration agent did not advise him. That hardly seems to be the fault of the RRT. 

  4. In any event, I note that the Tribunal wrote to the Applicant at what he agrees was his home address at the time. They wrote on 8th November 2001 inviting him to a hearing on 11th December 2001. The Applicant said he did not receive that letter. He said his migration agent did not get in touch with him. The Applicant told the Court that he had left that address in February 2001 but that does not accord with the information in the Court papers. It seems more likely that he left that address in February 2002. But, in any event, he told the Court that he had not advised the Tribunal of his change of residential address. He said that he was unaware of these things.  Again this hardly seems to be the fault of the RRT.

  5. The Applicant complains in paragraph 2 of his Outline of Submissions that the RRT erred in not having regard to the material procedures required by the Act. There is no evidence of that. Quite the reverse seems to be true in fact in that the RRT wrote to the Applicant at both the home address that he gave the Tribunal and also care of his migration agent. It appears to me that the Tribunal wrote in plenty of time. I note that the Applicant at the time was living within about half an hour's walking distance of the building in which the Tribunal was located. The Applicant repeats his contention that the Tribunal did not exercise good faith but provides no evidence of that. When asked to explain what he meant by that the Applicant told the Court about the fact that his migration agent had not informed him. 

  6. It is well-established that allegations of bias, bad faith or lack of bona fides should not be made lightly and should be specifically proved.  The Full Court of the Federal Court has made this very clear in SBBS v Minister for Immigration [2002] FCAFC 361. There is no evidence of bad faith, bias, either actual or apprehended, or a failure to make a bona fide attempt to exercise jurisdiction.

  7. In his Outline of Submissions the Applicant challenges the country information considered by the Tribunal. The challenge to country information is a challenge only to factual materials and amounts to no more than an attempt to undertake a merits review. A Court exercising power of judicial review does not undertake a merits review, it does not seek to challenge the factual findings made by the Tribunal. Merits review is conducted by the Tribunal, or at least it would be where an Applicant attends. 

  8. The Applicant at paragraph 5 claims that the use of evidence by the RRT is so illogical as to amount to error of law going to jurisdiction.  The Applicant says that there is a legal error on the part of the RRT when the decision was made in his case. I have read through the decision myself in great detail. I see nothing that would indicate any illogicality by the Refugee Review Tribunal. The basic reason why the Tribunal did not grant the Applicant's application was because he did not provide them with any real evidence. 

  9. In paragraph 6 the Applicant sets out the error of law which he claims the Refugee Review Tribunal permitted. He says the Tribunal erred in law by analysing only some of his claims based on provided information alone against the background of his family history rather than examining the totality of his claims against that background.  He says that it was necessary to examine the totality of his claims which cannot be examined without his oral evidence before the RRT. The RRT set a date for a hearing and invited the Applicant to attend and give oral evidence.  They gave him over a month's notice. They wrote letters to his home address which he gave them and to his migration agent's address which he gave them. They telephoned his migration agent four days before the hearing to ask if the Applicant was going to attend. I can see no reason why there is any fault on the part of the RRT because the Applicant did not attend to give oral evidence. 

  10. In paragraph 7 of his Outline of Submissions, the Applicant says that the member cannot be confident that he is of no interest to the authorities in terms of persecution for reason of his political opinion. The Applicant provided no evidence to show that he was of interest to the authorities. The Applicant told the Court that he had prepared a statement in the Nepalese language which he gave to his migration adviser. I do not know what use the migration adviser made of the statement, but I note that the application for review provides no further information than the words "will be sent later", which was most uninformative to the Tribunal member in attempting to ascertain why the Applicant believed that the delegate had made a wrong decision. 

  11. The Applicant claims at paragraph 8 that the Tribunal's error involved the failure to perform an imperative duty and amounted to a jurisdictional error.  There is no evidence of any failure to perform any duty by the Tribunal and there is no evidence of jurisdictional error.  The Applicant seeks an order that the Minister should not implement or enforce the decision and that the decision should be quashed or set aside. The Applicant also seeks an order that the Minister allocate a competent, unbiased and an acknowledged member of the Tribunal to rehear and redetermine his review application in accordance with the law.  I do not know who prepared this Outline of Submissions for the Applicant and I accept the fact that the Applicant does not have literacy skills in English.

  12. That part of the submission indicates a fundamental misunderstanding of the role of the Refugee Review Tribunal. The Tribunal is independent from the Minister and from the Minister's Department and it is no part of the Minister's function to allocate any member of the Refugee Review Tribunal to hear a case. There is no evidence that the Tribunal member was not competent. There is no evidence to show that the Tribunal member was biased. 

  13. The Applicant has also displayed a considerable amount of delay in commencing these proceedings for review of the decision. It is certainly none of his doing that nothing happened in his application between the time it was remitted from the High Court of Australia, but he did not commence these proceedings until 23rd April 2003. He says that he was found by officers of the Department in April 2001 and taken not immigration detention. I consider this to be highly unlikely.  It is more likely that that event happened in April 2003.  He said that as a result of advice from friends when he was in Immigration Detention he then commenced his proceedings in the High Court which quite clearly took place in April 2003. 

  14. The fact is that the Applicant's Tribunal decision was handed down in January 2002 and he did not commence proceedings until April 2003.  He only commenced those proceedings after he had been located by officers of the Department of Immigration and Multicultural and Indigenous Affairs and taken into detention. The Court can only surmise what would have happened had he not come to the attention of the immigration officers at that time. 

  15. It is well-established that unwarranted and improperly explained delay is a bar to granting relief by means of a Constitutional writ. The Court has a discretion to dismiss an application for a Constitutional writ in cases where there has been an unwarrantable delay. This discretion can be exercised against an applicant without determining whether there has been any jurisdictional error (See R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565; see also S58/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 283). In Re Commonwealth of Australia and Anor; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491, McHugh J pointed out that delay in excess of a year should almost always lead to the Court declining to exercise its discretion to grant relief. His Honour held at para.17 that an applicant's inability to obtain favourable legal advice is not a ground for extending the time, for seeking mandamus or the ancillary writ of certiorari.

  16. I am also of the view that the Applicant had a migration agent and chose to rely on the migration agent's advice. The advice of the migration agent, whose name was Bimal Bhattarai trading as NAOSAMS Migration Services, suite 406, level 4, 301 George Street, Sydney, seems on the evidence before me, or at least the Applicant's assertions, to have been grossly inadequate. The Applicant says that he paid Mr Bhattarai $3,000.00 for the benefit of his advice. I am of the view that the delay in commencing these proceedings is of itself sufficient to justify the Court declining to exercise its discretion to grant relief.

  17. In any event, however, the Applicant's non-attendance at the Tribunal hearing makes it virtually impossible to challenge the Tribunal's decision.  I refer to the decision of SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306; and SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1811, both of which are appeal decisions in respect of decisions of this Court and of course binding on this Court.

  18. I would comment also that the written material provided to the Refugee Review Tribunal was so inadequate that it was virtually impossible for the Tribunal to make a decision in the Applicant's favour. The grounds given by the Applicant in his Outline of Submissions do not come near establishing any ground for challenging the RRT's decision. The application will be dismissed with costs.

  19. There is an application for costs in the sum of $2,700.00. The figure sought by the Minister's solicitors is certainly within the scale envisaged by the Federal Magistrates Court Rules. The Applicant says that he is currently unemployed and does not have the funds to meet that costs order. I can understand that would be the case. That is not in this jurisdiction a ground for not making an order for costs. It is, however, a ground for considering time to pay. I will allow six months to pay. I require a transcript of my reasons for this decision. The application will be removed from the list of cases awaiting finalisation.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  19 December 2005

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