SZBCI v Minister for Immigration
[2005] FMCA 64
•1 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBCI v MINISTER FOR IMMIGRATION | [2005] FMCA 64 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming racial persecution in Fiji – no reviewable error found – application dismissed. PRACTICE AND PROCEDURE – An objection to competency that is upheld following a final hearing directed to the question of whether any jurisdictional error can be found does not render the decision of the Court interlocutory. |
| Migration Act 1958 (Cth), ss.430, 430A, 430B, 441A, 474, 477 |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | SZBCI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG1514 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 1 February 2005 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2005 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Miss R Henderson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1514 of 2003
| SZBCI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 27 May 2003 and handed down on 20 June 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the application a protection visa. The applicant is from Fiji and of Indian ethnicity. In her protection visa application she claimed to fear harm from indigenous Fijians. The relevant background facts are summarised in Miss Henderson's written submissions. I adopt by way of background paragraphs 2-8 of those written submissions:
The applicant is a 36 year old citizen of Fiji who was born in Suva on 16 February 1969 (court book, pages 12, 25). She entered Australia on 7 December 2001 on a one-month visitor’s visa (court book, pages 14, 27).
When her visitor’s visa expired, the applicant attempted on 7 January 2002 to obtain an extension to the visa (court book, page 41). On 8 January 2002 she sought and was granted a bridging visa (court book, pages 2, 28). On 5 February 2002, with the assistance of a migration agent, the applicant lodged an application for a protection visa (court book, page 2).
The applicant indicated in her protection visa application form (see court book, pages 16-19) that as an Indian Fijian, she had experienced harassment by Fijians after the coup which was led by George Speight. She said that she feared further harassment and possible sexual assault if she returned to Fiji. The applicant claimed that Fijian political leaders encourage and incite people to harass Indian Fijians and that Indian women are too scared to venture out by themselves. She said that Police officers had told her that they “couldn’t do much about these things” and that she therefore could not obtain protection from the authorities.
A delegate of the respondent wrote to the applicant on 19 February 2002 inviting her to attend an interview on 5 March 2002 (court book, page 31). In the letter, the delegate indicated that the matters to be discussed at the interview would include information provided by the Department of Foreign Affairs about the treatment of Indo-Fijians. The delegate also identified the applicant’s failure to lodge an application for a protection visa promptly after her arrival in Australia as an additional topic which would be addressed in the interview.
On 27 March 2002 the delegate decided not to grant a protection visa to the applicant (court book, page 35).
The applicant applied to the RRT for review of the delegate’s decision on 22 April 2002 (court book, page 45). When she was invited to attend a hearing before the RRT, the applicant indicated that she did not want to do so and that she consented to the RRT making a decision on the review without taking further action to allow her to appear before it (court book, page 58).
On June 2003 the RRT handed down a decision dated 29 may 2003 in which it affirmed the decision not to grant a protection visa to the applicant (court book, page 63).
The applicant relies upon an amended application filed on 16 December 2003. It appears that that application was not served on the Minister and Miss Henderson was not aware of it before today's hearing. The original application for judicial review filed on 4 August 2003 was obviously defective in that it identifies no grounds in support of it. Miss Henderson's submissions were prepared on the basis of that application. The amended application does contain four grounds of review and annexed to it are numerous documents, apparently downloaded from the internet, relating to the situation in Fiji at various times.
The first ground of review is that the applicant is aggrieved by the decision of the RRT because when making a decision the RRT failed to take into consideration all the relevant facts presented and in doing so erred in law. No particulars are provided and the applicant was not able to tell me, when I asked her, what facts the RRT failed to take into account. It appears to me from the book of relevant documents which I accept in evidence that all elements or integers of the applicant's claims were considered by the RRT. I find that there is no substance to the first ground of review.
The second ground of review is that the RRT decision is contradictory to a principle quoted from Professor Hathaway in his 1991 book, The Law of Refugee Status, published by Butterworths Canada, at pages 85 to 86. Professor Hathaway is quoted as stating:
Claimants should not be impugned simply because of vagueness or inconsistencies in recounting peripheral details.
One would not quibble with that view. However, it has no relevance to the case before the Court. The RRT did not reject the applicant's claims and did not assert any vagueness or inconsistencies in them. The RRT found the applicant's claims to be genuine but found that the applicant did not have a well-founded fear of persecution in Fiji for any Convention reason. I reject the second ground advanced.
The third ground is that the applicant submits that the RRT failed to consider the fact that she had been having problems with communication. I invited the applicant to tell me what problems she had been having but she was not able to do so. The amended application asserts that the applicant had many problems flowing from stress and trauma prior to her arrival in Australia and that she was experiencing this due to the fact that she had to leave her child behind and that this was not taken into account by the RRT. This ground fails for the reason that the applicant did not alert the RRT to any of those asserted problems.
The applicant was invited to a hearing before the RRT. The invitation was given by letter dated 20 February 2003 which appears on pages 55 and 56 of the court book. The hearing invitation was declined and the document completed by the applicant appears on page 58 of the court book. If indeed the applicant was having problems of communication she should have alerted the RRT to those problems at that time. She did not do so. In the circumstances, there was no reason for the RRT to take account of any problems as the RRT did not know of any problems.
The fourth ground refers to a series of Amnesty International reports on Fiji from 1999 to 2003 which are annexed to the amended application. The applicant asserts that these reports show continuing violence because of tension between indigenous and Indo-Fijians. There is nothing in those reports which is inconsistent with the decision of the RRT. The RRT recognised in its decision that the situation in Fiji remained far from perfect at the time of the decision but placed emphasis on its finding that the situation was much improved from the situation that existed in 2000. The country information submitted by the applicant might be relevant to a dispute over the merits of the RRT decision but it does not point to any jurisdictional error. In those circumstances, I reject the fourth ground of review.
Because the applicant is self-represented I have myself considered whether any jurisdictional error on any other basis is apparent from the record of the RRT proceedings. I have formed the view that there is no jurisdictional error. It follows that the decision of the RRT is a privative clause decision and the application must therefore be dismissed.
I note that the Minister filed a notice of objection to competency on 20 December 2004 and Miss Henderson, for the Minister, pressed that objection. Miss Henderson deals with the competency of the application in paragraphs 9 to 16 of her written submissions. I accept those submissions and adopt them for the purposes of this judgment:
The RRT is required to prepare a written statement of its reasons for making a decision – s.430, Migration Act 1958 (Cth) (“the Migration Act”). The parties to the decision must be notified that the decision is to be handed down – s.430A.
Section 430B sets out, inter alia, the procedures for notifying an applicant of the decision if the applicant does not attend the Tribunal when the decision is handed down. Notification must be given within 14 days, using a method specified in s.441A – see s.430(6).
The methods specified in s.441A relevantly include sending a document within 3 working days by post to the last address for service provided to the RRT by the recipient – see s.441A(4). A document sent in that manner to a place in Australia is deemed to have been received seven working days after the date of the document – see s.441C(4).
An application to the Court for review of a privative clause decision (defined in s.474(2)) under the Judiciary Act 1903 (Cth) must be made within 28 days of the notification of the decision – s.477(1A). The Court must not make an order which has the effect of allowing an application to be lodged out of time – s.477(2).
The RRT decision in respect of the applicant was handed down on 20 June 2003 (court book, page 63). The RRT sent a copy of the decision to the applicant’s migration agent and to the applicant under cover of a letter dated 20 June 2003 (court book, page 62). The address to which the letter to the applicant was sent corresponds with the address set out in the applicant’s RRT application for review (court book, page 46) and in several documents subsequently forwarded to the RRT by or on behalf of the applicant (court book, pages 53, 54 ,58). A sticker affixed to the file copy of the RRT’s letter to the applicant indicates that the letter was sent by registered mail (court book, page 62).
The letter addressed to the applicant and the copy of the reasons for decision enclosed with it are deemed to have been received by the applicant seven working days after Friday 20 June 2003, that is to say, on Tuesday 1 July 2003. The period of 28 days prescribed by s.474(2) expired on 29 July 2003.
The application to the Court was lodged on 4 August 2003, after the 28 day period had expired. The [original] application contains no indication that the applicant relies upon an alleged jurisdictional error in the RRT decision and thus contends that, notwithstanding s.474(2), she is entitled to bring an application before the Court[1].
[1] Plaintiff S157/2002 v Commonwealth of Austalia (2003) 211 CLR 476 – but note that the amended application does assert jurisdictional error.
Miss Henderson submits that, in the light of the legislative provisions and facts set out above, the application must be dismissed because it was lodged out of time. I have found that there was no jurisdictional error in the decision of the RRT. It follows that the application is incompetent. It does not follow that the decision made by the Court today is interlocutory. The incompetency of the application for judicial review could have been dealt with at an interlocutory stage in the proceedings but it has only been dealt with after a final hearing. In the light of the amended application, it was not possible to resolve the question of the competency of the application without considering whether there was any jurisdictional error in the decision of the RRT. The Minister has chosen to leave that resolution to a final hearing and in the circumstances, in my view, the decision of the Court is final and not interlocutory.
I will order that the application be dismissed.
On the question of costs, I am satisfied that costs should follow the event. Miss Henderson sought an order for costs fixed in the sum $4,000. That would in my view be at the top of the range for a matter of this complexity. I am, however, satisfied that not less than $3,500 would have been properly and reasonably incurred on behalf of the Minister on a party/party basis in these proceedings.
The applicant referred to her impecuniosity but that is not a reason for the Court to refrain from making a costs order. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 3 February 2005
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