SZAQL v Minister for Immigration - [2005] FMCA 240

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAQL & ANOR v MINISTER FOR IMMIGRATION

[2005] FMCA 240

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant citizens of Indonesia.

Migration Act 1958 (Cth), ss.422B, 424A, 474, 475A, 477
Judiciary Act 1903 (Cth), s.39B

S157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24
Minister for Immigration and Multicultural and Indigenous Affairs v Anthony Pillai (2001) FCA 274
Re Minister for Immigration and Multicultural and Indigenous Affairs ex parte Applicants S134 (2003) 195 ALR 1
R v Hickman ex parte Fox and Clinton (1945) 70 VLR 598
Ngu v Minister for Immigration and Multicultural and Indigenous Affairs(2003) FCAFC 54
Re Minister for Immigration and Multicultural and Indigenous Affairs ex parte Miah (2001) 206 CLR 57
Stead and SGIO(1986) 161 CLR 141
Re Minister for Immigration and Multicultural and Indigenous Affairs ex parte Lam(2003) 195 ALR 502
Re Minister for Immigration and Multicultural and Indigenous Affairs ex parte A (2001) 185 ALR 489
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
Abebe v Commonwealth of Australia (1999) 197 CLR 510
SZAWW & Others v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FMCA 479

First Applicant:

SZAQL

Second Applicant:

SZAQM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG887 of 2003

Judgment of:

Scarlett FM

Hearing date:

29 April 2004

Date of Last Submission:

25 May 2004

Delivered at:

Sydney

Delivered on:

23 February 2005

REPRESENTATION

Solicitors for the Applicant:

In Person

Counsel for the Respondent:

Mr Potts

Solicitors for the Respondent:

Clayton Utz

ORDERS

The Application is dismissed.
The Application is incompetent.
Time to lodge an appeal is not to run until production of written reasons for decision.
All other applications save as to costs are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG887 of 2003

SZAQL

First Applicant

And

SZAQM

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal made on 21 January 2000 and handed down on 10 February 2000. The decision affirmed a decision by a delegate of the Minister not to grant a Protection Visa to the applicants who are husband and wife and their two children.
This application was filed on 21 May 2003. The respondent has filed a notice of objection to competency, pointing out that the application has been filed outside of the time prescribed by s.477(1) A Migration Act 1958.
In their application the applicants say these things. They set out six claims.
i)They are Chinese Christians and have a well-founded fear for themselves and their children if they were to return to Indonesia.
ii)There is a breach of the rules of natural justice in the making of this decision.
iii)The submission (evidence) has not been looked at properly.
iv)There is no evidence or material to justify the making of the decision.
v)The decision maker has not stated human rights violations and its consequence in Indonesia.
vi)The decision was not made in good faith.
vii)The decision was not made in reference to subject matter, scope and object of the Migration Act.

Background

The applicants are husband and wife. They are both Indonesian nationals from the City of Bundong in Java. They are ethnic Chinese and of the Christian religion. Together with their two children, a son and a daughter, they were the applicants for a protection visa in an application dated 21 August 1998.
The first applicant was the primary applicant. The second applicant, with two children applying as members of the first applicant's family unit.
They arrived in Australia on 8 August 1998 travelling on a Visitor Class TR Visa. They claim that they are people to whom Australia had protection obligations under the Refugee Convention because they feared persecution on racial grounds and by virtue of their membership of a particular social group, namely non-Muslim ethnic Chinese.
A delegate of the Minister refused their application for a Protection Visa on 24 September 1998.
On 9 October that year the applicants and their son and daughter applied to the Tribunal for review of the decision of the delegate.
On 18 January 2000 both applicants appeared at a hearing of the Refugee Review Tribunal and gave evidence. They had the assistance of an Indonesian interpreter.
On 21 January 2000 the Refugee Review Tribunal made its decision. That decision was handed down on 10 February. In the decision the Tribunal affirmed the decision of the delegate of the Minister to refuse the grant of a Protection Visa to the applicants and their children.
The applicants then filed their application for judicial review on

21 May 2003, time in excess of three years and three months after the Tribunal's decision was handed down.

The applicant’s submission

Applicant SZAQL, the husband, made an oral submission. The applicants both attended Court but they were not legally represented. They had the assistance of an interpreter in the Bahasa Indonesia language. For convenience I will refer to SZAQL as the applicant for the purpose of this judgment.
The applicant said that at the time the Refugee Review Tribunal made its decision he did not know there was a time limit of 28 days. He said that he did not know what to do after he had received the decision. The applicant said that he applied to the Minister thinking that that was the right thing to do. When the Minister rejected the application, the applicants were afraid to return to Indonesia.
The applicants then went to see a solicitor, Mr Adrian Joel, who advised them to join in a class action that he was launching. He said that they were originally unaware of the costs to them of the class action. When they did find out the costs, early in 2003, they withdrew from the class action and decided to proceed on their own.
Turning to the substantive matters; the applicant said that there had been a breach of the rules of natural justice because, in his opinion, the Refugee Review Tribunal did not consider the reasons he gave about the situation in Indonesia.
The applicant said that the Tribunal did not look at the evidence properly because in the decision the Tribunal said that the situation in Indonesia could become better but did not consider what had gone on beforehand.
The applicant submitted that there was no evidence to justify the Tribunal making the decision as it did, because the Tribunal member said things like:
Now, that there is a new President there would not be any more riots.
He said that it was not possible to make a finding like this. The applicant told the Court that the Tribunal member had not studied Human Rights violations in Indonesia and their consequences. He said he told the Tribunal about these matters.
The applicant submitted that the decision was not made in good faith. He admitted that he did not know what that meant. He did say that their case was not individually considered and he thought that the Tribunal had pre-judged their case. He provided no evidence of that.
The applicant said that the tribunal listened to them at the hearing but the decision was not based on what the applicant's told the Tribunal. He said that he told the Tribunal about a lot of things did not appear in the news but the Tribunal's decision was not based on that information.
The applicant SZAQW, the wife, said that she wanted to add that her mother is an Australian citizen who had experienced the same sort of violence in Indonesia in 1973. This type of unrest, riots, etcetera, happened repeatedly. A lot of news about what happened did not appear in the news media. In particular, churches were burned and people were killed. Even so, it would not necessarily appear in the media. She said that Indonesians of ethnic Chinese descent, as they are, were often regarded as scape goats by other Indonesians. She used the phrase "kaming litam".
For the respondent, Mr Potts of counsel submitted that privative clause in s 474, as it now is in force, applies to the Tribunal's decision in this case, notwithstanding that it was enacted after the decision of the Tribunal was made on 21 January 2000 and handed down on 10 February 2000. This is because the application for review in this Court was filed on 21 May 2003.
The result is, he said, that the applicants must demonstrate jurisdictional error to evade the operation of s 474. See Plaintiff S157 of 2002 and Commonwealth of Australia (2003) 195 ALR 24 and Re Minister for Immigration and Multicultural and Indigenous Affairs ex parte Applicants S134 (2003) 195 ALR 1.
The High Court has held that a decision by the Refugee Review Tribunal that involves a jurisdictional error, either a failure to exercise jurisdiction or an exercise in the jurisdiction conferred by the Act is not a decision made under the Migration Act and is thus not a privative clause decision as defined in sections 474 paragraphs 2 and 3 of the Act. See Plaintiff S157 of 2002 and Commonwealth of Australia (2003) 195 ALR 24 at paragraph 77 and Re Minister for Immigration and Multicultural and Indigenous Affairs ex parte Applicants S134 (2003) 195 ALR 1 at paragraph 15 and 61. Such a decision is therefore reviewable notwithstanding the operation of s 474.
Further, the protection that s 474 purports to afford will be inapplicable unless the three Hickman provisos are met. See again the decision in Plaintiff S157 of 2002 and Commonwealth of Australia (2003) 195 ALR 24 at paragraph 64. The reference of course to R v Hickman ex parte Fox & Clinton (1945) 70 CLR, pp 598. Those three provisos are that the decision is a bona fide attempt by the Refugee Review Tribunal to exercise its power, that it relates to the subject matter of the legislation and that it is reasonably capable of reference to the power given to the body.
Section 477, as it is currently in force, describes an absolute time limit of 28 days for the making of an application under s 39B of the Judiciary Act. It applies to this case on the same basis as s 474. If the applicants established jurisdictional error, obviously the time limits in s 477 would not apply as a decision would not be a privative clause decision. Section 91R of the Act does not apply.
As I said, a notice of objection to competency had been filed because the respondent objected to the competency of the application. The application was filed beyond the 28th day time limit, well beyond it in fact, that stipulated by s.477A (1) of the Migration Act. Unless the Court was to find that the Tribunal's decision was infected with jurisdictional error, the time limit in s.477 is an absolute bar to the bringing of the proceedings. See Ngu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 54 at paragraph 8.
Turning to the grounds of the application itself, Mr Potts submitted that a decision by a Tribunal made unfairly and in serious breach of the rules of natural justice may well constitute jurisdictional error and therefore not fall within the scope of the protection offered by s 474. He referred again to the decision in S157, paragraphs 37 and 38 and paragraph 83.
The applicant, he said, had not put forward any evidence in the form of a transcript to show exactly what happened at the hearing before the Tribunal and the Court therefore could not be satisfied that there was a denial of natural justice. He also pointed out that s.422B of the Migration Act does not apply in this particular case.
Notwithstanding the provisions of s.424A he conceded that some common law rules of procedural fairness would continue to apply to the decision of the Tribunal. He referred to Re Minister for Immigration and Multicultural and Indigenous Affairs ex parte Miah (2001) 206 CLR, pp 57. A fair hearing rule under which an applicant is entitled to have an opportunity to respond to adverse material is subject to an important qualification. See Stead and SGIO (1986) 161 CLR at paragraph 141.
He submitted that the further question that must be asked is whether, if the applicants had had an opportunity to comment on adverse material, it would have made any difference. This qualification was confirmed by the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs ex parte Lam (2003) 195 ALR at paragraph 502. In that case the High Court said that the rules of procedural fairness were not mechanical. There would not be a denial of procedural fairness in the legal sense unless there was unfairness in fact. It is the applicants who bear the onus of establishing that they could have used the opportunity to make a difference to the outcome.
The applicants do not have to satisfy the Court if they had had the opportunity but they could have produced material or made submissions that would necessarily have produced a different outcome. They only have to satisfy the Court of the possibility of a different outcome. See in Stead's case at 146 and 147. In Re Minister for Immigration and Multicultural Affairs ex parte A (2001) 185 ALR 489, Kirby J said that there was the need to establish an arguable case. Mr Potts submitted that the test was really no different.
In short, Mr Potts submitted that the applicants had not placed any material before the Court and had not made out their claim that they were denied procedural fairness.
Turning to the ground that the evidence had not been looked at properly; Mr Potts pointed out that the ground was devoid of any factual foundation. It was quite clear, he said, that the Tribunal had looked at all of the evidence with care and in detail. The majority of the applicant's evidence was in fact accepted by the Tribunal. But the Tribunal found that, looking at all of the evidence, applying the proper legal principles, that the applicants were not refugees.
Turning to the third ground that there was no evidence, he submitted that that ground was also without substance because there was clearly evidence upon which the Tribunal based its findings and the Tribunal referred to that evidence at length. Looking at the ground that the decision maker had studied human rights violations and its consequences, he said that the Tribunal was obliged to consider the material before it but was not obliged to obtain any further material. See Abebe v Commonwealth (1999) 197 CLR 510. The Tribunal had considered the material before it and therefore had considered human rights violations in Indonesia.
Turning to the fifth ground that the decision had not been made in good faith; Mr Potts referred the Court to the decision of SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749. At paragraphs 43 to 48 the Full Court looked at the matters that had to be proven where bad faith has been alleged by a party. The Full Court said that an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. The allegations should not be lightly made. There are many ways in which bad faith could occur. And the presence or absence of honesty will often be crucial. The circumstances in which a Court will find an administrative decision maker has not acted in good faith are usually rare and extreme. That is especially so where all the applicant can rely on is the written reasons for the decision under review as is the case here.
Mere error or irrationality does not, of itself, demonstrate a lack of good faith. Bad faith is not to be found simply because of poor decision making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its task in a way that involved personal criticism. Errors of fact or law or illogicality will not demonstrate bad faith in the absence of any other circumstances with show capriciousness. The Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task.
It is not necessary to demonstrate that the decision-maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power. In this case he has submitted, and in my view rightly, that there was nothing in the circumstances of the case that justified the finding of bad faith. There is no evidence on which I can make that finding.
Turning to the sixth ground, Mr Potts submitted that this ground, being not made in reference to subject matter, scope and object of the Migration Act, submitted that that seemed to suggest that one or more of the Hickman provisions hadn't been satisfied but he submitted that as a matter of fact they are clearly satisfied. In other words, Mr Potts submitted that there was no reviewable error.
I was also referred to the decision of Driver FM in SZAWW & Others v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 479. Mr Potts submitted that the applicants, in deciding to withdraw from the class action, could have elected to continue in the High Court. Unlike the situation in SZAWW, I understand that the applicant's claim did not proceed very far in the High Court at all. There was no reason why they could not have withdrawn when they did, except that the time limit under s.477A (1) had expired. Whilst the application is not, in my view, an abuse of process, it is not competent. Section 477A (1) does not give the Federal Magistrates Court any power to extend the time limit in the privative clause matter.

Conclusions

The application before me is a privative clause matter. There is no breach of natural justice shown to have occurred. The applicants attended the hearing and gave evidence. There is no evidence of any lack of good faith. The other grounds, being two, three, four and six in effect seek a merits review of the Refugee Review Tribunal decision. It is not the function of a Court conducting a judicial review to undertake a re-hearing on the merits of the applicant's case.
Turning to the ground where the applicants say that:
The submission (evidence) has not been looked at properly.
I note that in Minister of Immigration and Multicultural Affairs and Anthony Pillai (2001) FCA 274, handed down on 21 March 2001, the Full Federal Court said at paragraph 66:
In our view, to say that the Tribunal failed to give proper genuine and realistic consideration to an application does not make out any available ground for review under part 8.
I am satisfied that in this case there is no reviewable error. The application will be dismissed.
Apart from dismissing the application I do intend to order that the application is not competent since I have made that finding.
On the question of costs, I am satisfied costs follow the event. I will make an order for costs in the sum of $4750 that is a fixed sum.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 7 March 2005