SZCQO v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1188

FEDERAL COURT OF AUSTRALIA

SZCQO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1188

MIGRATION – no point of principle

Migration Act 1958 (Cth)
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

SZCQO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 981 OF 2004

MOORE J
14 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 981 OF 2004

BETWEEN:	SZCQO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	14 SEPTEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed as incompetent.

2.The applicant pay the respondent's costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 981 OF 2004

BETWEEN:	SZCQO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	14 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Turkey of the Muslim faith.  He arrived in Australia as a visitor on 3 May 1988 aged 24.  On 4 May 1998 he was placed in detention.  He applied for a protection visa on 27 May 1998.  A delegate of the Minister of Immigration and Multicultural Affairs ("the Minister") refused the application on 29 June 1998.  The applicant sought review of that decision on 1 July 1998. On 20 August 1998 the Refugee Review Tribunal ("the Tribunal") affirmed the decision of the delegate of the Minister.

   Procedural History

2. On 15 September 1998, the applicant filed an "application for an order to review" in the Victorian Registry of this Court ("the Victorian proceedings"). That application was made under Part 8 of the Migration Act 1958 (Cth) ("the Act") as then in force. That application sought to have reviewed the Tribunal's decision of 20 August 1998. On 16 March 1999, North J struck out the Victorian proceedings because the applicant had escaped from immigration detention and had failed to attend Court on a return date. On 6 February 2004 the applicant commenced proceedings in the Federal Magistrates Court to review the Tribunal's decision. This purported to be an application under s 39B the Judiciary Act 1903 (Cth). On 21 June 2004 Federal Magistrate Driver transferred the proceeding, by consent, to the Federal Court pursuant to s 39 of the Federal Magistrates Act 1999 (Cth) and rule 8.02 of the Federal Magistrates Court Rules.

   Background Facts

3. The gravamen of the applicant's claims was that if he returned to Turkey he feared that he would be harmed by Islamic fundamentalists because he was from a fundamentalist Muslim background and had transgressed Islamic law by drinking and gambling in Australia, abandoning his wife and children in Turkey and having relationships with other women in Australia.  The applicant said that when he left Turkey he left behind a daughter aged 3 and his wife who later gave birth to a son and that his wife and her family swore revenge on him for leaving them.  He claimed the authorities could not and would not protect him as they followed the dictates of fundamentalists. 

4. In addition to the evidence of the applicant, the Tribunal heard evidence from a friend.  The friend had visited Turkey in 1996 and asked the applicant's wife and mother if there was anything they wanted to say to the applicant.  His wife said she was finished with the applicant, he had not obeyed the rules and she was waiting for him to return so that he could be punished.  The applicant's mother told his friend that "they" were going to kill him, by which his friend thought she meant Islamic groups.  His friend had not told the applicant of this information until the applicant was in detention because the applicant had been too ashamed to see him before and his friend had not wanted to worry him.

   The Tribunal's Decision

5. The Tribunal referred to the applicant's unsuccessful attempts to apply for permanent residence after being detected for overstaying in 1993.  The Tribunal recounted his escape from an interview room following a decision to detain him in April 1998, his subsequent reapprehension in May 1998, the rejection of his application for a bridging visa, the appeal against that decision and the rejection of his application for a bridging visa pending the appeal.

6. The Tribunal did not accept the applicant's explanation for the delay in applying for a protection visa.  It concluded that had the applicant had a genuine fear he would have applied when he first learnt of the threats or at least told the Minister's delegate in April 1998 that it was unsafe for him to return to Turkey.  The Tribunal concluded his fears were not well founded. 

7. The Tribunal indicated that it gave no weight to the evidence of the applicant's friend in relation to the messages sent from the applicant's wife and mother in 1996 because it did not accept that the friend would have spoken to the applicant's wife with the sole intention of passing a message on to him and then not have told him the message for 2 years.

8. The Tribunal found that even if the applicant feared persecution, it was from a group of private individuals whose actions were not sanctioned by the State.  It noted that persecution by private individuals or groups did not fall within the Convention definition unless the State either encouraged or was or appeared to be powerless to prevent that private persecution.  The Tribunal concluded that was not the position in Turkey.  It was satisfied that effective protection was available in Turkey.  In addition, the Tribunal concluded that it would not be unreasonable for the applicant to relocate to a different part of Turkey where fundamentalism was not so prevalent.

   Disposition of the application

9. There is a threshold question of what law should apply.  As noted earlier, the decision of the Tribunal was made on 20 August 1998 and an application was made to this Court on 15 September 1998.  Since then, the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) ("the Amending Act") has been enacted. It came into force on 2 October 2001. On one view of the transitional provisions, this application falls to be determined under Part 8 of the Act without regard to the statutory regime introduced by the Amending Act. It is, in my opinion, unlikely that Part 2 of the Amending Act has this effect. It is more probable that the legislature intended that an application such as this falls to be determined under the Act as amended by the Amending Act. That is, the Tribunal's decision is a privative clause decision unless it is a decision attended by jurisdictional error.

10. Section 477 of the Act in its amended form has created a time limit precluding in these proceedings, any order being made allowing, or having the effect of allowing, the applicant to make this application. The only qualification to this observation is that if the Tribunal's decision was attended by jurisdictional error it would not be a privative clause decision upon which s 477 would operate.

11. However this issue is, in a sense, academic. It is not apparent that the Tribunal fell into jurisdictional error or that any of the grounds of review under Part 8 could be made out (I put it in these terms because the applicant was not legally represented and, understandably, no attempt was made to argue any point of substance or relevance). The Tribunal's approach to the question of whether the applicant feared harm appeared to me curious and perhaps it failed to distinguish between whether the applicant feared harm (which on his account, was credibly asserted) and whether the harm could ever found a claim for asylum under the Convention having regard to the reasons why the applicant might be at risk (on his account, for abandoning his wife and family).

12. Nonetheless, the Tribunal also concluded that the applicant would have effective state protection: see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 and, in any event, could avoid any threat of harm by relocating. Its consideration of these issues was, in my opinion, unexceptionable.

13. If, as I have concluded, there was no jurisdictional error, then the decision of the Tribunal is a privative clause decision and, because of s 477, the application is out of time and should be dismissed as incompetent.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:            14 September 2004

The Applicant appeared in person.

Counsel for the Respondent:	J A C Potts
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	9 September 2004
Date of Judgment:	14 September 2004