SZAHT v Minister for Immigration
[2005] FMCA 974
•29 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAHT v MINISTER FOR IMMIGRATION | [2005] FMCA 974 |
| MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa. PRACTICE & PROCEDURE – Notice of objection to competency – privative clause decision – where application filed more than 28 days after the applicant was notified of the decision – abuse of process – notice of motion – whether the application is an abuse of process. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.474, 477 Federal Magistrates Court Rules 2001 sch. 1 |
| Applicant: | SZAHT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 3570 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 23 June 2005 |
| Date of Last Submission: | 23 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2005 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Ms Pepper |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $4000.00 and I allow nine months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3570 of 2004
| SZAHT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The substantive application is an application for review of a decision of the Refugee Review Tribunal. The decision was made on
7th February 2003 and handed down on 27th February. The Refugee Review Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a Protection Visa.
The applicant sought a review of that decision in an application to this Court filed on 26th March 2003.
The application was listed for hearing before Federal Magistrate Raphael on 20th November 2003 but the applicant discontinued the application on 30th October. Federal Magistrate Raphael made an order for costs in favour of the respondent on 28th November 2003.
The applicant then commenced this application on 7th December 2004. It is this application that has brought about the filing of a notice of motion seeking dismissal of the application as an abuse of process and, in the alternative, a notice of objection to competency on the basis that this application is out of time.
The applicant has filed a document headed:
Amended application under the Judiciary Act 1903 and the Migration Act 1958.
It is in fact a written submission and it was accepted for filing by the Registry on that basis.
The applicant's submissions go mainly to the question of whether or not he is to be regarded as a vexatious litigant or the proceedings themselves are frivolous or vexatious. In his oral submissions the applicant said that he discontinued the earlier proceedings when he did because he was informed that as the law stood, he would not have been successful. He commenced these fresh proceedings because he had been told that the decision of the High Court of Australia in S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476 would now enable him to obtain the relief that he seeks.
Regrettably, the applicant has been misinformed. The decision in S157 was handed down in February 2003 at about the time he commenced the original proceedings. Thus, the grounds arguable in reliance on the decision in S157 were available to the applicant when he commenced his original proceedings, as well as when he discontinued them in October 2003. There was no other decision that would have affected his ability to seek relief, so far as I am aware, between October 2003 and the time he commenced these proceedings in December 2004.
The application, or at least the reason for filing it at that time, is misconceived. But I am not prepared to go so far as to say that it is an abuse of process. The difficulty that the applicant faces though is that he lodged this application on 7th December 2004 which is more than 28 days after he was informed of the Tribunal's decision, which was handed down on 27th February 2003.
This creates two difficulties for the applicant. First, under the provisions of s.477(1)(a) of the Migration Act, the Court has no power to hear an application to review a privative clause decision which is lodged after the 28 day time limit. The Court has no power to extend the time as set out in s.477 (2). The applicant, however, argues that the decision is tainted by jurisdictional error so that it is not a privative clause decision.
The second difficulty that the applicant faces relates to his delay in lodging the application in any event. Even if the Court is satisfied that there is a jurisdictional error so that the decision is not a privative clause decision, there still remains the delay in bringing this application in December 2004 in respect of a decision handed down in February 2003.
Delay of itself is a ground for a Court not to exercise its discretion in favour of an applicant to grant relief. Even if the Court were to accept that the applicant had been under a misapprehension as far as the state of the law was concerned, this does not assist him particularly well so far as an explanation of the delay between October 2003 and December 2004 is concerned.
The applicant said in his oral submissions to the Court that he became aware of the decision of S157 in about October 2003 but presumably after he sought to withdraw his original application. That does not explain a delay of 14 months in commencing these fresh proceedings. What the Court needs to do at this stage is to examine the decision of the Refugee Review Tribunal. This is necessary in order to ascertain whether it is in fact so tainted by jurisdictional error as not to be a privative clause decision.
As I mentioned earlier; the applicant's amended application is more a set of submissions than an application as such. As that document was accepted for filing as representing the applicant's submissions to the Court, the applicant's original application remains on foot.
The applicant sets out three grounds for relief in his application.
The first ground says as follows:
The Tribunal has not accepted that the applicant's fear of persecution is for any of the Convention grounds. The Tribunal reasoned that the applicant was attempting to expose criminal activity. Thus, the harm the applicant suffered as a result of the investigation is not for reasons of his imputed political opinion.
The second ground claims that the issue of exposing criminal activity of authorities and the connection with the Convention was discussed and resolved in a decision of the Full Federal Court in 1999.
The decision is correctly cited in the respondent's outline of submissions. The particular decision is V v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 366. In that case, as the applicant submits; the appellant was persecuted because of his attitude of resistance to systematic corruption of and criminal activity by government officials. The Full Court found that the appellant had an actual or imputed political profile on account of his investigative activities.
In the third ground the applicant says that his claims are identical to those in V v Minister for Immigration and Multicultural Affairs.
He says that he too was involved in investigating criminal activity by government officials and he too was subjected to harm by the authorities or by the agents of the authorities. He says that his case differs from a normal criminal extortion case in that his refusal to comply with corrupt or criminal practices and his attempts to bring them to light had him regarded as being anti-government. It is for these reasons that he believes that his case is on all fours with
V v Minister for Immigration and Multicultural Affairs.
Against this, counsel for the respondent submitted that the applicant's case can be distinguished from V's case. Her grounds for that submission were that the Tribunal had found, as a matter of fact, that first it was not satisfied that the single complaint by the applicant, without more, was sufficient to demonstrate that he held certain political views such that it could be said that the applicant held an imputed political opinion forming the basis of any persecution.
Second; the Tribunal was not satisfied that there was any evidence that the Russian authorities were corrupt insofar as the production of vodka was concerned or that they had colluded in the cover-up of the production of contaminated vodka. Counsel for the respondent submitted that either of those two findings precluded any harm feared by the applicant from being harm for a convention reason.
The Tribunal concluded that the harm that the applicant feared was as a result of his complaint about a criminal activity engaged in by private citizens and that the State did not collude in that criminal activity. Accordingly, that harm falls outside the Refugee's Convention.
The Tribunal noted that it was submitted by the applicant's adviser that vodka production is regulated by the government which is very happy about the high vodka production. The adviser commented that State policy is to keep people drunk. He also commented that the system is corrupt from top to bottom.
The Tribunal accepted many of the applicant's factual claims.
The Tribunal accepted that the applicant does have a subjective fear of persecution. What the Tribunal did not accept was that there was a Convention nexus to this fear.
The Tribunal noted at page 54 of the Court book that it was unable to be satisfied that the applicant's complaint to the Health Authority amounted to expression of a political opinion.
The Tribunal referred, correctly in my view, to the observations of the Full Court in V v Minister for Immigration and Multicultural Affairs. The Tribunal noted, in what is clearly a factual finding, that the applicant's complaint to the Health Authorities was a single action and not part of a continuing practice on his behalf.
The Tribunal did not accept the applicant's claims that the Russian Central Government was condoning or encouraging the trade in contaminated vodka because of the revenue that it brings.
The Tribunal referred to the country information which did not support that contention nor the contention that excise on vodka provided one third of the national budget. The Tribunal was not able to accept that corruption deriving from income from impure vodka permeated the Russian government.
At page 55 of the Court Book, the Tribunal summarised what it saw as the difference between the applicant's case and that in V v Minister for Immigration and Multicultural Affairs. The Tribunal said:
In sum, I do not accept that the applicant's single approach to the regional health authorities could be regarded as expression of a political opinion. But even if I had accepted that his action was tantamount to an expression of a political opinion, I do not accept that the harm with which he was threatened was for reason of any such political opinion. What needs to be considered is how the applicant's conduct was perceived by those from whom he feels harm.
The Tribunal went on to say, on that same page:
The people who threatened him were intent on silencing him so as to prevent any disturbance to their criminally acquired profits. This was the essential and significant reason for their actions. There is nothing in the evidence before me to suggest that they perceived the applicant to be acting on the basis of any sort of political opinion. To them he was merely a meddlesome scientist acting on the basis of his scientific findings.
In my view, the passages quoted sum up the approach taken by the Tribunal. In my view, the Tribunal's reasons adequately show why it distinguished the applicant's case from that in V v Minister for Immigration and Multicultural Affairs. Those findings are findings of fact and are not subject to judicial review.
There is, to my mind, no jurisdictional error in the decision. As a result, I am satisfied that the decision of the Refugee Review Tribunal is a privative clause decision and that the application to review that decision is out of time under the provisions of s.477 (1) A. Even if I had been satisfied otherwise, I could not have been satisfied that the delay by the applicant between discontinuing his application in October 2003 and commencing his fresh proceedings on
7th December 2004, has been adequately explained. Delay of itself is a ground for not acceding to an application for discretionary relief.
I accept the fact that the applicant's legal actions were misconceived, arising out of incorrect information that he may have received. It is not, however, a function of the Court to grant relief in situations where people misunderstand the law or bring misconceived applications.
In any event, as I have found, that the decision under review is a privative clause decision and the application to review it is out of time, I find that the application is not competent as the Court does not have the jurisdiction to hear it. The application will be dismissed.
I accept the fact that the applicant is not currently in employment and as such he does not have the funds to meet a costs order. He is an intelligent and educated man and no doubt if he were to be successful in obtaining a visa he would be an asset to this country or any other country where he can obtain residence.
I accept the fact that he would have the ability to obtain appropriate language skills to go with his educational qualifications. He would be able to obtain employment in the future even though he has no employment - no work at this stage.
I accept the fact that he has no funds at present to meet an order for costs. It is common for a successful party in this jurisdiction to receive a costs order in their favour and I see no reason why I should not make such an order in this case. The amount of $4,000.00 which is sought appears to me to be a reasonable figure and well within the scale provided by sch. 1 to the Federal Magistrate Court Rules 2001.
The applicant's present financial circumstances, however, make him unable to meet such a costs order in the near future. It is for this reason that I will allow nine months to pay.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 12 July 2005
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