SZAOA v Minister for Immigration

[2004] FMCA 101

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAOA & ANOR v MINISTER FOR IMMIGRATION [2004] FMCA 101

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming racial and religious persecution in Indonesia – whether the RRT erred in finding no Convention nexus with the principal applicant’s claim considered – no reviewable error disclosed – in any case relief should be refused in the exercise of discretion by reason of delay – further, the application was not filed within the time prescribed by s.477 of the Migration Act 1958 (Cth) – objection to competency upheld.

Migration Act 1958 (Cth), ss.474, 477

Abebe v Commonwealth (1999) 197 CLR 510
Applicant A v Minister for Immigration (1997) 190 CLR 225
JahazivMinister for Immigration (1995) 61 FCR 293
Hodgens v Gunn; Ex parte Hodgens (1990) 1 QLDR 1
Linnett v McIntyre (2002) 117 FCR 189 (FC)
Minister for Immigration v Abdi (1999) 87 FCR 280 (FC)
Minister for Immigration v Khawar (2002) 210 CLR 1
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476
R v Aston University Senate; Ex parte Roffey and Another [1969] 2 QB 538
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres Australia Limited (1949) 78 CLR 389
R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 AC 629

Ram v Minister for Immigration (1995) 57 FCR 565 (FC)
Re Commonwealth of Australia & Anor; ex parte Marks (2000) 177 ALR 491
Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16

Re Minister for Immigration; Ex parte Applicant S20 of 2002 (2003) 198 ALR 59
Re Minister for Immigration; Ex parte Lam (2003) 195 ALR 502
Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57
SZAJA v Minister for Immigration [2004] FMCA 73

First Applicant:

Second Applicant:

SZAOA

SZAOB

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDGENOUS AFFAIRS

File No: SZ780 of 2003

Delivered on: 3 March 2004

Delivered at: Sydney

Hearing date: 3 March 2004

Judgment of: Driver FM

REPRESENTATION

Solicitors for the Applicant: Mr M Jones
Michael Jones, Solicitor

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Minister’s objection to the competency of the application is upheld.

2. The application is dismissed.

3. The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

4. The applicants are to pay the setting down fee required for the hearing of this matter of $327 or obtain a waiver within 14 days of the date of these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ780 of 2003

SZAOA

First Applicant

SZAOB

Second Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 24 September 1996.  The RRT determined that the two applicants, a husband and wife and their two children, were not refugees and affirmed a decision of a delegate of the Minister not to grant protection visas to them.

2. The decision only dealt specifically with the adult applicants, although it appears that the two children, who are apparently now aged 14 and 17 were included in the mother's application.  It seems that the children made no claims of their own and their claims were dependent upon the claims made by their parents.  Accordingly, the determination of the claims of the parents by the RRT also determined the claims of the children.  The children were not applicants in the proceedings before me.  I also note that the applicant parents had been in Australia on several occasions, initially in the 1980s.  It appears that they have been in Australia continuously since 1994.

3. The relevant background facts and circumstances are otherwise set out in written submissions prepared on behalf of the Minister by Mr Reilly in paragraphs 1 through to 4.  I adopt those paragraphs for the purposes of this judgment:

   On 24 September 1996 the RRT affirmed a decision of a delegate of the respondent to refuse to grant the applicants protection visas.  As only the first applicant made substantive claims he will be referred to henceforth as “the applicant”.

   The applicant applied for the visa on 19 March 1996: court book, pages 1-52.  He was interviewed by the delegate on 2 May 1996: court book, page 53.  On 2 July 1996 the delegate refused the visa: court book, pages 69-83.  The applicant applied to the RRT for review on 12 July 1996: court book, pages 101-103.  The RRT held a hearing on 17 September 1996: court book, page 111.

   The applicant claimed to fear persecution in Indonesia for reason of his race and religion.  He claimed to be an ethnic Chinese Christian and to have been kidnapped in 1994 in Jakarta and only released after payment of a ransom.  He claimed that his race was a motivation for the kidnapping, and that he feared revenge from the kidnappers who had been convicted of it.  See generally court book, pages 139-146.

   The RRT had great difficulty believing that the applicant had been kidnapped as he claimed, noting a number of implausibilities and inconsistencies between the newspaper article that the applicant claimed reported his kidnapping, the police report of it, and the letter that the applicant claimed threatened him with revenge: court book, pages 146-148.  While the RRT concluded that it was most likely that the applicant had contrived this claim, it also considered whether the applicant could succeed on the assumption that his claims were true: court book, page 148.5.  On that assumption the RRT found that there was no racial motivation for the applicant’s kidnapping or his claims to fear revenge.  The RRT found that the kidnapping (if it occurred) was motivated by greed and a desire for the applicant’s money, and that any revenge would similarly not be motivated by the applicant’s race: court book, pages 149-150.  The RRT also found that the applicant could relocate within Indonesia: court book, page 152.3, and dismissed claims based on his membership of a particular social group or his religion: court book, pages 150-153.

4. The applicants proceed on the basis of an application filed on 7 May 2003.  The application advances one ground, namely, that the RRT’s finding that the applicants’ claims were not Convention based was wrong in law.  An issue arose as to whether an amended application should have been filed.  Order 2 of orders made by the Registrar on 29 May 2003 was that the applicant – it should have been "applicants" – file and serve an amended application, and any evidence upon which they proposed to rely, on or before 3 July 2003.

5. It is apparent to me that that order did not compel the applicants to file any evidence.  However, in its terms, it appeared to require an amended application.  It is not clear why an amended application may have been called for but I surmise that the registrar may have been looking for particulars of the ground of review.  If that were the case, although an amended application was not filed, particulars were, in effect, provided in written submissions prepared on behalf of the applicants by Mr Jones.  I accept that the order made by the registrar has, in substance, been complied with.

6. By notice filed on 17 June 2003 the Minister objects to the competency of the application pursuant to s.477(1A) of the Migration Act 1958 (Cth) (“the Migration Act”).

7. Mr Jones, in his written submissions filed on 26 February 2004, and augmented orally today, takes issue with the RRT finding that there was no Convention nexus to the harm said to be feared by the applicants.  The applicants had claimed a fear of revenge by criminals who the applicants had reported to the police; some of whom had been arrested and apparently imprisoned; others escaped.  The presiding member relevantly dealt with this claim on page 149 and 150 of the court book.  The presiding member prefaced his findings by expressing grave doubt about the credibility of the applicants' claims.  However, the presiding member was not sufficiently certain that the applicants' claims were fabricated to dispose of the applications solely on the basis of credibility.  The presiding member considered the circumstances as alleged by the applicants and said, at page 149:

   Even if racist insults were directed at him [the applicant husband] by his alleged captors, the husband was ultimately kidnapped for money and not to intimidate him over his ethnicity. 

   In any event, the relevance of this line of inquiry is limited, for whilst the alleged kidnap in 1994 and its motives form some historic basis for the husband's fear, the husband's fear of what might happen in future is quite different.  He fears criminal acts of revenge for having helped to convict several of his former kidnappers, and he claims it is well‑founded because, he attests, the police will not help him.  This is not a Convention-related fear: “race” is not an issue in what is feared.  It might have been a relevant issue in the planning of the alleged kidnap, but, as concluded on the basis of all evidence provided above, greed is clearly the driving motive.  The Applicants have a point in when they say that if they were not Chinese in the first place, they would not be in the situation at present where they are threatened with revenge.  However, it is another matter to say that there is a causal link between the Applicants' “race” and the harm they claim to fear.  The Tribunal has considered their claim to the effect that the kidnappers' racial hatred increases the chance that the threat will be carried out, but it does not see merit in the argument.  It turns on the spurious notion of the kidnappers being unlikely to carry out a threat towards indigenous Indonesians who had helped convict them.  It also pre-supposes that the kidnappers have racial hatred towards the Applicants.  The husband says that he was called names during the period of his capture, but that did not precede or precipitate any harm towards him.  As the Applicants have attested, it was the non-payment of a ransom and/or the alerting of the police that the kidnappers indicated would lead to the husband being injured or worse. 

   On the evidence given, the Tribunal does not accept that the kidnappers have a particular racial hatred towards the Applicants such as would mean that the threats against them are more real than they would be towards, say, indigenes in their situation.

   It comes down to the Tribunal concluding on the evidence that specific acts performed by the Applicants, however reasonable in the circumstances, have ignited the threats from the kidnappers.  There is no causal link between “race” and the harm with which the Applicants claim to be threatened.

8. Mr Jones submits that the decision of the RRT on this issue is wrong in law.  He draws an analogy of the situation of a Jew faced with persecution by Nazi criminals.  The motivation of the attackers may be criminal but race is an element and effective State protection would not be available.  Mr Jones has argued his case as effectively as he can in the interests of his clients but he has had rather little to work with.  The analogy with the situation of Jews in Nazi Germany is not particularly apt.

9. In this case, on the applicants' own account, effective State protection was available and, indeed, several of the kidnappers were apprehended and dealt with according to law.  The fear of harm based on revenge was, on the facts, something which flowed by the action taken by the applicants in putting the wheels of effective State protection in motion.

10. The argument over the RRT’s reasoning on the question of whether there was any nexus with the Convention does not really extend beyond an argument over the merits of the RRT decision.  Mr Reilly submits that it may have not been necessary for the RRT to enter upon this consideration at all given the strong views on credibility held by the presiding member.  That is arguable, but the presiding member, it appears, was not sufficiently certain upon the issue of credibility to base the decision on that ground alone.

11. The presiding member took into account the possibility that there was some racial element to the alleged criminal acts, although the presiding member appears to have taken the view that the essential reason for the attack on the applicant husband was a criminal motivation.  The possibility that there could be some racial connection to the fear of a revenge attack was considered by the presiding member and rejected.  The possibility was, on the evidence, remote.  I see no error of reasoning or of law in the approach taken by the presiding member. 

12. In any event, it appears to me that the presiding member found that it was open to the applicants to relocate.  On page 152 of the court book the presiding member states:

    Finally, the claim that the state will not protect the Applicants is negated by the demonstrated attention of the police and the courts in the past.  There is also the fact that the husband and wife have both said that they could live elsewhere in Indonesia.  The facts they introduced to mitigate this ability, if not willingness, do not negate the overwhelming indication that they would be able to relocate safely and reasonably within Indonesia without facing the real chance of harm from the alleged kidnappers.

    Although not expressed as clearly as it might be, I find that this was a finding by the presiding member that the applicants could relocate safely within Indonesia. 

13. For completeness I agree with, and adopt for the purposes of this judgment, paragraphs 5, 7, 8 and 9 of Mr Reilly's written submissions:

    It is apparent that the applicant was unsuccessful because of the view the RRT took of the facts, in particular its finding that the applicant’s claims, assuming (contrary to the RRT’s view) that they were true, did not involve any Convention motivation.  The RRT correctly looked to the motivation of the criminals the applicant claimed to have been kidnapped by and to fear revenge from in coming to this conclusion: Ram v Minister for Immigration (1995) 57 FCR 565 (FC) at 568 per Burchett J; Applicant A v Minister for Immigration (1997) 190 CLR 225 at 240-42 per Dawson J, 284 per Gummow J. Persecution aimed at a person as an individual rather than for a Convention reason is not within the Convention definition of refugee, no matter how terrible its impact on the person happens to be: ApplicantA at 257 per McHugh J. A fear of revenge by criminals is not usually within the Convention as no Convention motivation is present: Minister for Immigration v Abdi (1999) 87 FCR 280 (FC) at [44-46]. The RRT’s conclusion that the criminals were motivated by greed and revenge rather than the applicant’s race is a finding of fact. The Court cannot review the merits of the RRT’s decision: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let alone a jurisdictional error, in the RRT making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].

    The applicant’s submissions claim that the RRT erred in its finding that race was not a motivation for the kidnapping that the applicant had suffered.  As the RRT notes at court book, page 149.6 this issue is not relevant, as the Applicant’s claim is to fear revenge in future.  In any event the RRT unequivocally finds that the kidnapping and any revenge as a result were not, and would not be motivated by the applicant’s race: court book, page 149.  It is not a fair reading of the RRT’s reasons to claim that in fact it found to the contrary by taking isolated sentences in the RRT’s reasons out of context: Wu at 271-272, 291. The RRT was simply assessing the degree to which a Convention motivation was present, as it was obliged to do: Jahazi v Minister for Immigration (1995) 61 FCR 293 (French J) at 299-300.

    The applicant’s submissions also cite R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 AC 629, and presumably would also wish to rely upon Minister for Immigration v Khawar (2002) 210 CLR 1. However these cases are not relevant as the RRT did not find that there was a failure of state protection motivated by the applicant’s race. To the contrary, clearly there was no failure of state protection at all: on the applicant’s own account the criminals were apprehended and convicted, as the RRT notes: court book, page 152.3.

    As there is no arguable jurisdictional error in the RRT’s decision, it is strictly unnecessary to discuss the effect of Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 or s 474 of the Migration Act. However the distinction between jurisdictional and non-jurisdictional errors remains: Linett v McIntyre (2002) 117 FCR 189 (FC) at [5], [30-35], [86-87]; Re Minister for Immigration; Ex parte Lam (2003) 195 ALR 502 at [77]; Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [59]. The RRT was plainly addressing the right question, and the applicant’s complaints can at most concern the weight given to evidence before it, which cannot be a jurisdictional error: Linett. As there is no jurisdictional error in the RRT’s decision it follows that it is a “privative clause decision” within s.474 of the Act, and the application is out of time pursuant to s.477 of the Act, so the respondent’s notice of objection to competency should be upheld.

14. The other issue is one of delay.  The decision of the RRT was made in 1996.  The application for judicial review was not made until May 2003.  At the time Mr Reilly's written submissions were prepared there was no apparent explanation for the delay.  However, an explanation was provided in further submissions filed by Mr Jones on behalf of the applicants on 2 March 2004.

15. In paragraph 4 of those further submissions Mr Jones states that following the decision of the RRT in February 1997 the applicants applied for a family visa.  The application was refused and an appeal was made to the Migration Review Tribunal (“the MRT”) in May 1999.  In August 2000 the MRT affirmed the refusal and a request to the Minister to intervene in 2002 was also refused.  It appears that some form of application was also made to the High Court in relation to one or other of those decisions but was subsequently withdrawn.  Mr Jones submits that while there may have been periods since 1996 during which the applicants did not have an active case under consideration, the claim that the delay in bringing this application to the court is unexplained is not consistent with the history of their dealings with the authorities.

16. I agree with Mr Jones that an explanation has been offered but I do not accept that the explanation justifies the delay.  Even if I were wrong in my decision on whether the decision of the RRT is infected by jurisdictional error I would refuse relief in the exercise of my discretion for the reasons I set out in SZAJA v Minister for Immigration [2004] FMCA 73 at paragraphs 15 through to 20:

    If I am wrong in that conclusion, I would nevertheless have declined to provide relief in the exercise of my discretion.  The provision of relief in the form of constitutional writs is discretionary.  The discretionary nature of the jurisdiction of this Court and, indeed, the Federal Court to issue a constitutional writ is comparable to the jurisdiction of a superior court to grant or refuse prerogative relief.  It is well established that the mere establishment of a ground of review does not entitle an applicant of necessity to a remedy.  There is a useful discussion on the issue in Professor Flick's Administrative Law Service published by the Law Book Company at page 1584/11.

    For certiorari to issue it must be possible to identify a decision which has a discernible or apparent legal effect upon rights.  In addition, prerogative relief may be refused where, for example, the applicant's claim is of a trivial nature or where the applicant has unreasonably delayed in approaching the Court for relief or where the applicant knew of the irregularity during the course of an administrative proceeding and thus, in effect, waived his or her right to object to an irregularity, or where the applicant's conduct is unmeritorious. 

    The discretionary nature of the prerogative writ of mandamus was referred to by the High Court of Australia in R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres Australia Limited (1949) 78 CLR 389 at 400.

    In R v Aston University Senate; ex parte Roffey and Another [1969] 2 QB 538 the English High Court was dealing with the issue of delay in relation to prerogative writs. The Court held that there had been a breach of procedural fairness but declined to provide relief. The Court held that in as much as prerogative orders were discretionary remedies and should not be available to those who slept upon their rights, the applicants by their inaction between December 1967 and July 1968 had forfeited any claim to relief.

    In the case of Hodgens v Gunn; ex parte Hodgens (1990) 1 QLDR 1 the Queensland Supreme Court, constituted by a Full Court, also refused prerogative relief for the reason of the failure of the applicant diligently or candidly to pursue his remedy in the Court.  That was also a case of the review of procedural unfairness. 

    I note that the High Court has also considered the discretionary nature of constitutional writs in Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57. That decision confirms that the constitutional writs of prohibition and mandamus are discretionary and that the discretion may be exercised against an applicant in cases of delay. In that case, the High Court found that a delay of several months did not disentitle the applicant to relief. I also note that in Re McBain; ex parte Australian Catholic Bishops Conference [2002] HCA 16 the High Court confirmed the discretionary nature of relief in the form of certiorari.

1. Mr Reilly took me to two other decisions of some relevance.  One was the decision of the High Court in Re Commonwealth of Australia & Anor; ex parte Marks (2000) 177 ALR 491. In that decision at paragraph 16 the High Court stated that in all but exceptional cases the periods for applying of certiorari and mandamus should be rigidly applied when more than one year has elapsed between the decision and the commencement of proceedings in the High Court.

2. The Court was there referring to rules of court which provided time limits for applications for constitutional writs. There are no relevant rules of court in respect of this application and s.477 of the Migration Act appears to have no application to cases where the decision of the tribunal is not a privative clause decision. Nevertheless, the discretion of the Court remains.

3. As I have noted, I would exercise that discretion against the applicants in this case.  It is in my view no sufficient explanation of delay to say that other visa options were being pursued.  There is no reason why a judicial review application could not have been pursued concurrently with attempts to obtain some other form of visa.  The delay in this case is, in my view, extreme and the Court should not require a re-hearing by the RRT, even if jurisdictional error were apparent.

4. Mr Reilly pressed the Minister’s objection to the competency of the application, pursuant to s.477 of the Migration Act. The Court has no jurisdiction to consider the application. That necessarily follows from my finding that there is no jurisdictional error in the RRT decision. In those circumstances the decision is a privative clause decision. Apart from the jurisdictional limitation imposed by s.474 of the Migration Act, s.477 of the Migration Act requires that any application for review be lodged within 28 days of notification of the RRT decision. Obviously, this application was not made within that time period and in the circumstances there is a jurisdictional objection to the application.

5. I will uphold the objection to competency and dismiss the application.

6. There are in this case humanitarian considerations.  The applicants have lived in Australia off and on since the 1980s.  They have lived here continuously for 10 years.  They have two children who it appears have spent most of their lives in Australia and one of whom has been born here.  Sympathetic consideration to their circumstances might be appropriate if the applicants can make a productive contribution to the Australian community.  That is a matter outside the scope of these proceedings, but it is a matter that the Minister could consider should she be so minded.

7. On the question of costs, Mr Reilly submits that an order for costs should be made fixed in the sum of $4,000.  Mr Jones had no instructions to oppose that order.  I agree that $4,000 would be an appropriate sum in the context of this matter.  I will therefore order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.  I will also order that the applicants pay the setting down fee required for the hearing of this matter of $327 within 14 days of the date of the orders, or obtain a waiver.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  15 March 2004