SZAMO v Minister for Immigration
[2003] FMCA 515
•26 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAMO v MINISTER FOR IMMIGRATION | [2003] FMCA 515 |
| MIGRATION – Review of Refugee Review Tribunal decision – visa – protection visa – status – refugee status – refusal – where the respondent made submissions about the jurisdiction of the Federal Magistrates Court. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R; 91X; 474; 477; 483A
Rahman v Minister for Immigration & Multicultural Affairs [2002] FCAFC 5; FCA 38; (2002)
Plaintiff S 157 of 2002 v Minister for Immigration & Indigenous Affairs [2003] FMCA 449
NACV v Minister for Immigration & Multicultural Affairs [2002] FCA 411
| Applicant: | SZAMO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 721 of 2003 |
| Delivered on: | 26 November 2003 |
| Delivered at: | Sydney |
| Hearing date: | 28 October 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| The Applicant: | Appeared on his own behalf |
| Counsel for the Respondent: | Mr Lloyd |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs of and incidental to this Application in the sum of $4650.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 721 of 2003
| SZAMO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application seeking judicial review of a decision of the Refugee Review Tribunal handed down on 14th March 2002, affirming a decision by a delegate of the Respondent not to grant a Protection visa to the Applicant. The Applicant seeks the following orders:
a)To redirect the Applicant’s claim to the Refugee Review Tribunal (RRT) for further consideration;
b)That no action be taken to remove the Applicant from Australia while the decision is pending;
c)Costs
d)Any further order deemed appropriate; and
e)“Leave to the applicant to file the applicant as a plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
(4 February 2003).”The Application is brought under section 39B of the Judiciary Act 1903. The relief is sought under sections 483A and 475A of the Migration Act 1958.
The Application is opposed by the Respondent. In particular, the Respondent has filed a Notice of Objection to Competency, objecting to the jurisdiction to try the application for an Order of Review. The grounds for the objection are:
a)The Court has no jurisdiction to review the decision of the Refugee Review Tribunal as subsection 477(1A) of the Migration Act provides that an application under section 39B of the Judiciary Act must be made within 28 days of the notification of the decision.
b)The applicant has not identified any other decision that is sought to be reviewed.
The Applicant is not legally represented. He presented his case with the assistance of an interpreter. Whilst I would normally prefer to deal with the objection to the Court’s jurisdiction as a threshold issue, I made the decision to hear the Applicant’s entire case, including his substantive application. To do otherwise would have meant an adjournment, leading to delay and an increase in costs.
Background
The Applicant, known for the purposes of these proceedings as SZAMO, pursuant to the requirements of section 91X of the Migration Act, is a citizen of India. He is a member of the Sikh religion and he lived in the Punjab area prior to his arrival in Australia. His parents still reside in India.
The Applicant arrived in Australia on 20th July 1998, having been granted a student visa on 3rd July. He returned to India on
22nd December 1999 and came back to Australia on 29th January 2000. The Applicant says in his application that his family “forced” him to return to India, but that the police in India blamed him for supporting the Khalistan movement, so he was compelled to come back to Australia.
The Applicant’s student visa expired on 1st August 2000. He remained in Australia, and applied for a Protection visa on 29th September 2000. In his application, he claimed that he feared persecution if he were to return to India, because he said that the police blamed him for supporting the Khalistan movement and conspiring against the Government. Khalistan is the name given to a separate state that a number of Sikhs sought to be established. The Applicant referred to a civil war between Sikhs and Hindus in 1984, when many Sikhs were killed at Amritsar.
A delegate of the Respondent Minister refused the Applicant’s application for a Protection visa on 1st November 2000. The delegate found that there was no real chance that the Applicant would be persecuted for a Convention reason on return to India.
The Applicant lodged an application for Review by the Refugee Review Tribunal on 21st November 2000. The RRT heard the application on 15th February 2002. The Applicant attended the hearing and gave evidence. On 14th March 2002 the RRT handed down its decision, affirming the decision of the delegate not to grant a Protection Visa.
The Applicant did not apply to the Court for review until 1st May 2003. He tendered to the Court a copy of a letter dated 11th November 2002 from the Department of Immigration and Multicultural and Indigenous Affairs addressed to Mr D.L. Bitel, of Parish Patience Immigration Lawyers. It appears from the letter that the Applicant had requested that the Respondent Minister consider exercising his discretion under section 417 of the Migration Act to substitute for a decision of the Refugee Review Tribunal a decision more favourable to the Applicant. On 17th October 2002, the Respondent decided not to consider exercising that discretion.
On 1st May 2003, the Applicant lodged his Application.
The Applicant’s submissions
In his application, the Applicant provided the following details of his claim:
a)The Tribunal failed to take a relevant consideration into account;
b)The Tribunal member refused to accept that the Applicant has a well-founded fear of persecution on Convention reasons. As a member of a minority Sikh community in India (he) is subject to oppression by the mainstream Hindu community;
c)The decision involved a jurisdictional error being an error of law involving an incorrect interpretation of the applicable law to the facts;
d)The Tribunal’s decision was unjust and was made without taking into account the full gravity of the Applicant’s circumstances and the consequences of the claim; and
e)The Applicant was deprived of natural justice, in that the Tribunal relied on documents, including the country information, that were not shown to him. The decision involved an unreasonable exercise of power.
The Applicant appeared in person and was assisted by an interpreter. He was not legally represented. He had had, however, the opportunity to obtain pro bono legal advice, and he filed a written submission the day before the hearing day.
In that submission, the Applicant claimed that he had a genuine fear of persecution. He stated:
“If I go back to my country, I may be killed. The DIMIA did not give me a chance to present my case. When I applied to the Refugee Review Tribunal, the RRT did not believe me in my oral submission”.
The Applicant went on to claim he had been denied natural justice and was denied procedural fairness. He stated that, due to fear for his life, his parents arranged to send him to Australia to continue his study. When he went back to India in December 1999, he found that the situation had not changed, and because of the fear of persecution and fear for his personal safety he returned to Australia on
29th January 2000. He went on to complain that the Tribunal member did not believe that he had been elected as a President of the Sikh Student Federation or that he was harassed. He stated “The Tribunal member did not believe in any evidence claimed by me during the hearing time.” He asserted that he had no protection from the Indian Government, and that if he were to go back to his country “they” could find him and kill him.
As to the objection to jurisdiction raised by the Respondent’s counsel, he made no submissions but answered some questions directed to him from the Bench. When he was asked about the delay in bringing the Application, the Applicant said that he did lodge an application on
14th June, presumably 2000. He told the Court that he applied for a Ministerial Review through his Migration Agent. After he received his decision he went to the Migration Agent, who applied to the Minister. After six months he heard that he was unsuccessful. He said that he then applied to the Federal Court after that and got a hearing on
25th June 2003. The hearing on the 25th June was the mention before Registrar Hedge, who listed the matter for defended hearing on
28th October 2003.
The Applicant said that the RRT did not give him any chance to present his case. He could not get the proofs of his evidence. The RRT would not believe his oral submissions. He said that he was here in Australia and the documentary evidence, such as arrest warrants, was all in India. Whilst the Tribunal did not believe him, he felt that if he had proof then the Tribunal would make a decision in his favour.
I asked the Applicant some specific questions about the details of the claims that he had made in his Application. When asked to specify the relevant question that the RRT had failed to take into account, the Applicant said that the RRT did not believe that he was actually a refugee. He said that he did not want to apply for a Protection visa before. His parents had sent him to study. When he went back to India in 1999, the situation was the same, so he returned to Australia. His parents did not send money for his support whilst studying. If he went back to India he would be killed.
As to the second claim that the Tribunal member refused to accept that he had a well-founded fear of persecution, the Applicant said that he appealed to the Court for the Tribunal to hear his case; he wanted to present himself before the Tribunal again. If he had some time, he could get some evidence.
When the Applicant was asked to identify the error of law made by the Tribunal, he replied that up to now he did not know the laws. If he went back to India he would be persecuted, so according to law he should be given a Protection visa.
The Applicant’s claim that the Tribunal’s decision was unjust and made without taking the full circumstances into account was purely a question of fact. The Applicant merely reiterated his assertion that the Tribunal should have believed him.
In answer to a request to specify the documents that the Applicant said were not shown to him, the Applicant said that when he appeared before the RRT he was told that the RRT had country information that said that the situation was good in the Punjab, not bad. He said that he was asked if could live in some other part of India, he said that he told the Tribunal that he would be killed.
The Applicant reiterated that he had been denied natural justice, but he was unable to specify how.
The Respondent’s submissions
The respondent provided a written submission that dealt with both the Objection to competency and the Applicant’s substantive application. The Respondent submitted that the Federal Magistrates Court has jurisdiction equivalent to the jurisdiction of the Federal Court under section 39B of the Judiciary Act in respect of applications within the Jurisdictional constraints imposed by section 477(1A) of the Migration Act. The parallel jurisdiction is conferred by section 483A of the Migration Act, but it is only conferred in respect of applications made under section 477 after 2nd October 2001.
Section 477(1A) imposes these restrictions:
“an application to the Federal Magistrates Court under section 483A for:
(a) a writ of mandamus, prohibition or certiorari; or
(b) an injunction or declaration;
in respect of a privative clause decision in relation to which the jurisdiction of the Federal Magistrates Court is not excluded by section 476 must be made to the Federal Magistrates Court within 28 days of the notification of the decision.”
Section 477(2) makes it clear that:
“The Federal Court or the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application referred to in subsection (1) or subsection (1A) outside the period specified in that subsection.”
The Respondent relied on Rahman v Minister for Immigration and Multicultural Affairs [2002] FCAFC 5; [2002] FCA 83; (2002)
118 FCR 448 in support of the proposition that this kind of provision imposes jurisdictional limits on the Court.
The Respondent further submitted that the Court’s jurisdiction under the Migration Act is limited to privative clause decisions and not decisions that are affected by jurisdictional error, because these are not privative clause decisions. The Court does have jurisdiction in respect of those decisions under the Administrative Decisions (Judicial Review) Act 1977, but that jurisdiction has not been invoked.
The Respondent submitted that the Application was filed more than 28 days after the Applicant was notified of the tribunal’s decision, so it is out of time as a result of the provisions in section 477(1A). If the decision was not a privative clause decision, the Court would have jurisdiction under the Administrative Decisions (Judicial Review) Act, but the Applicant would still need to obtain an extension of time to make an application under section 11(1)(c) of that Act.
The Respondent further submitted that the Applicant has provided no evidence that would justify an extension of time for filing an application under the Administrative Decisions (Judicial Review) Act. The factors that the court should consider before exercising the discretion would be:
a)whether the respondent was made aware within the prescribed time of a claim;
b)whether the Applicant has reasonable prospects of success; and
c)whether the Applicant has an explanation for the delay.
The Respondent referred me to the decision of the High Court in Plaintiff S 157 of 2002 v Minister for Immigration [2003] HCA 2, and to the decision of Raphael FM in NAHC V Minister for Immigration [2003] FMCA 449. In Plaintiff S 157, it was held that where a jurisdictional error occurs the decision is no longer a privative clause decision. The Applicant would need to make an application under the Administrative Decisions (Judicial Review) Act. In NAHC (supra), Raphael found that the matter before him was not one where jurisdictional error had occurred.
Conclusions
In this case, the Applicant did not bring an application within the prescribed time because he had chosen to ask the Minister to consider exercising his discretion under section 417 of the Migration Act. To my mind, this does not constitute a reasonable explanation. If the Applicant chose to ask the Minister to exercise his discretion, this does not allow the Applicant to turn around months later and pursue his application through the Court if it is otherwise out of time.
There is no evidence that the Respondent was made aware within the prescribed time that a claim was to be made under the Administrative Decisions (Judicial Review) Act. I am also of the view that the Applicant does not have reasonable prospects of success if such an application were made, because I do not believe that any jurisdictional error has been shown to have occurred.
The Applicant claimed in his Application “that the decision involved a jurisdictional error being an error of law involving an incorrect interpretation of the applicable law to the facts of the case was found (sic) by the Refugee Review Tribunal”. The Respondent describes this, correctly in my view, as “assertion without substance”. When the Applicant was asked a question by the Bench about this assertion, he replied merely that up to now he did not know the laws. He said that if he went back to India he would be persecuted, so it followed, in the Applicant’s view, that according to law he should be given a Protection visa.
The assertions stated above do not, to my mind, establish any ground for finding that there has been a jurisdictional error. It follows that the Applicant cannot show any ground for an application under the Administrative Decisions (Judicial Review) Act.
The grounds that the Applicant argues go entirely to the merits of the Tribunal’s decision. The Tribunal did not accept the truth of his account. The hard fact of the matter is that the Tribunal did not accept his evidence:
“I do not accept that the applicant’s claims are true and I find that he has fabricated those claims in order to extend his stay in Australia.”[1]
[1] Court Book page 85
I refer to the decision of Conti J in NACV v Minister for Immigration and Multicultural Affairs [2002] FCA 411 at [2]:
“It is readily apparent that the applicant was unsuccessful because of the view the Tribunal took of the facts and circumstances which he had put forward and his credibility. So long as credibility findings are open to be found on the evidence placed before the Tribunal, there is no reviewable error committed by the Tribunal.”
It is clear that the decision the Applicant seeks to have reviewed is a privative clause decision, as defined by section 474 of the Migration Act. Because his Application was not lodged until 1st May 2003, his Application is out of time. The decision was handed down on
14th March 2002, so the Applicant should have lodged his application within 28 days of that date, as required by section 477(1A).
In Rahman (supra), the Full Court of the Federal Court dealt with an objection to competency on the basis that the Court had no jurisdiction, because the application was not lodged with a registry of the Federal Court in accordance with the then section 478(1)(b) of the Act. The application was not lodged within 28 days of the appellant being notified of the Tribunal’s decision. Section 478(1)(b), at that time, was in similar terms to section 477(1), which applies to the Federal Court, and section 477(1A), which applies to the Federal Magistrates Court. The objection to competency was dealt with as a threshold question, and, on 14th December 2000, a single judge of the Federal Court upheld the objection to competency and dismissed the application with costs.
On appeal, Hill, Tamberlin and Emmett JJ dismissed the Appeal, holding that section 478(2), which said:
“(2) The Federal court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph 1(b)”
must be construed as a whole. The present section 477(2) is almost identical to section 478(2), except that it refers to the Federal Magistrates Court as well as the Federal Court. In Rahman (supra), their Honours said that section 478(2) was “designed to make absolutely clear the intention of Parliament that there is to be no review by the Federal Court of a judicially reviewable decision unless an application for such a review was lodged within twenty-eight days of the applicant’s being notified of that decision. It is well recognised that a subject’s right of recourse to the court is not to be taken away except by clear words – see Hockey v Yelland (1984) 157 CLR 124 at 130. Nevertheless, it is patently clear that the Parliament intended that the Federal Court would not have any jurisdiction to entertain an application for an order of review if the application was lodged more than twenty-eight days after the applicant was notified of the decision sought to be reviewed” (at [16]).
It follows that this Court has no jurisdiction in this matter because the application was not lodged within the time specified by section 477(1A). There is no basis for allowing the Applicant to make an application under the Administrative Decisions (Judicial Review) Act because he has shown no jurisdictional error that would permit such a claim. The decision by the Tribunal is a privative clause decision as set out in section 474 of the Migration Act, and, even if the Applicant had lodged his application in time, he has not shown any reviewable error.
I am satisfied that the objection to competency must be upheld. The Application will be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 14 November 2003
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