SZCVI v Minister for Immigration

Case •

[2006] FMCA 572

•

4 April 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCVI v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 572
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of Fiji claiming fear of persecution because of Indian ethnicity – denial of procedural fairness alleged.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424, 424A
NAYU v Minister for Immigration & Multicultural Affairs [2004] FCA 528
Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Refugee Review Tribunal; ex parte Aala (2002) 204 CLR 82
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 448
VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82
Applicant: SZCVI
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 528 of 2004
Judgment of: Scarlett FM
Hearing date: 4 April 2006
Date of Last Submission: 4 April 2006
Delivered at: Sydney
Delivered on: 4 April 2006

REPRESENTATION

The Applicant: Appeared in person
Counsel for the Respondent: Ms Mason
Solicitors for the Respondent: Sparke Helmore

ORDERS

  1. The Refugee Review Tribunal is joined as Second Respondent to the application.

  2. The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.

  3. The application is not competent.

  4. The application is dismissed.

  5. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00 and I allow twelve (12) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 528 of 2004

SZCVI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal.  The Tribunal made its decision on 26th April 2001. 


    The Refugee Review Tribunal handed down its decision on


    11th May 2001.  The decision of the Tribunal was to affirm a decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa to the applicant.  The applicant is a citizen of Fiji who arrived in Australia with his wife on 3rd December 1999.  On 28th July 2000 they applied for protection (class XA) visas which were refused on 28th August.  On 12th September 2000 the applicant and his wife applied for review by the Refugee Review Tribunal.

  2. The applicants were invited to attend a hearing of the Tribunal that took place on 2nd April 2001.  The applicant in these proceedings gave evidence at that hearing.  The applicant is of Fijian Indian ethnicity.  He and his wife are of the Muslim faith and have three children. 


    They came to Australia to visit the wife's brother and after they arrived in Australia the coup of the year 2000 occurred.  That coup led to property damage, looting and harassment directed against Fijian Indians.  The applicant and his family had lived on land owned by native Fijians and a 30 year lease over that land expired in 1998. 


    They then appeared to be on a weekly tenancy.  They were given a week's notice to leave. 

  3. The members of the applicant's family gave evidence at the Tribunal hearing about the attitude of native Fijians and confirmed that life had been very hard for the applicant and his family after they vacated the farm.  The applicants were active supporters of the Fijian Labor Party and feared that they would be targeted by supporters of the man, George Speight, who had been an instigator of the coup.  Whilst the applicants confirmed that they were of Muslim faith they said that they had not received any adverse treatment because of their faith whilst they were in Fiji.  They expressed concerns to the Tribunal about the inability of the authorities in Fiji to provide them with protection. 

  4. The Tribunal considered independent country information relating to Fiji.  In the Tribunal's findings and reasons the Tribunal accepted that the applicants were Muslims and of Indian ethnicity in Fiji. 


    The Tribunal accepted that they had been required to vacate their home and had experienced some harassment from native Fijians. 


    The Tribunal accepted that the applicants supported the Labor Party in Fiji and were concerned about their future in that country given the country's political instability.  The Tribunal said at page 98 of the Court book that:

    The independent information confirms that Indian Fijians could experience harassment from native Fijians.

  5. Against that the independent information indicated that the authorities would act in response to such activity and that they would arrest perpetrators.  The Tribunal noted that a central question in the case was whether what the applicants experienced in 1998 when they were required to leave their property at short notice, constitutes persecution under the provisions of the Refugees' Convention.  The Tribunal conceded that it was very distressing to have to move from the farm which had been farmed by family members for 30 years and to have to vacate a house in which a family had lived for a long time.  Nevertheless the Tribunal made a finding that it was open to the family members to pay the sum of money required of them to remain on the farm, although the Tribunal conceded that $30,000.00 was a significant sum of money.

  6. The Tribunal noted that the applicants made no claims of fearing harm because of their Muslim faith and noted that that was supported by independent information.  The Tribunal noted that the applicants supported the Fijian Labor Party but considered on the basis of advice from the Department of Foreign Affairs and Trade that there was not a real chance that the applicants would face harm because they supported that party.  There was no evidence that people who voted for the party would face adverse treatment as a consequence.  The Tribunal conceded that the applicants were very concerned about their future in Fiji but noted that the Tribunal had found that the loss of the farm did not constitute persecution within the meaning of the Refugees' Convention.

  7. The Tribunal noted the fear by the applicant husband and wife that the husband would have difficulty in obtaining employment and they would have difficulty being able to rent a house if they were to return to Fiji.  The Tribunal conceded that the economy in Fiji had suffered as a consequence of political instability and that the husband may have difficulties with employment but came to the rather regretful conclusion that this was not a reason covered by the Refugees' Convention. 

  8. The upshot was that the Tribunal concluded that there was not a real chance the applicants would face harm of a kind which could be regarded as persecutory for a convention reason if they were to return to Fiji and affirmed the decision not to grant protection visas. 

  9. The applicants have sought judicial review of that decision.  At some stage this applicant in the proceedings before me joined a celebrated class action in the High Court of Australia.  He was not able to provide any details of it and there is no evidence of it before me.  I can take judicial notice of the fact that proceedings were remitted to the Federal Court of Australia and that those proceedings were largely completed by orders made by Emmett J in February 2004.  It is perhaps significant that the applicant commenced these proceedings on


    2nd March 2004. 

  10. Nevertheless I have no evidence before me as to the extent of the applicant's participation in those earlier proceedings, or what the outcome of those proceedings was.  It certainly appears to me that those proceedings were not successful as far as the applicant was concerned. 

  11. The applicant obtained advice from a barrister under the arrangements for the Refugee Advice Scheme.  The barrister assisted the applicants to prepare an amended application which was filed on


    30th December 2004.  It contained one ground:

    The Tribunal denied the applicant procedural fairness and thereby committed a jurisdictional error.

  12. The amended application provides particulars from (a) through to (h).  The particulars (a) to (d) inclusive set out the grounds of the applicant's application to the Tribunal and recite some findings made by the Tribunal.  Ground (d) refers to the attendance by the applicant at the Tribunal hearing and giving evidence.  It is particulars (e) through to (f) that set out the basis of the applicant's claim.  I will quote them:

    (e)  At that hearing or at any other time the Tribunal did not disclose that it had in its possession or that it intended to use against the applicant the abovementioned information from DFAT.

  13. I would interpose that that information related to information from the Department of Foreign Affairs and Trade upon which the Tribunal concluded there was not a real chance the applicant would face harm because he was a supporter of the Fijian Labor Party. 

    (f)  As a consequence the applicant lost his opportunity to present evidence or make argument about that information.  In the absence of any evidence or submissions by the applicant on that subject the Tribunal treated the information from DFAT as credible and cogent.

    (g)  The loss of the opportunity to address adverse information that was considered by the Tribunal to be credible and cogent constituted a denial of procedural fairness.

    (h)  Given the weight generally attached to DFAT reports by the Tribunal the fact that the Tribunal held a report from that source as compared to, say, mere newspaper articles, was part of the substance and gravamen of the information and needed to be disclosed by the Tribunal.

  14. The grounds of review in the amended application have been met by an outline of submissions prepared by counsel for the respondent Minister, Ms Mason. She submits that the decision being reviewed is a privative clause decision for the purposes of s.474 of the Migration Act. Accordingly it can only be set aside where there has been a failure to discharge imperative duties or to observe inviolable limitations or restraints and she refers me to Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76]. Quite properly the respondent notes that the Tribunal decision was made prior to the commencement of s.422B of the Migration Act which came into operation on 4th July 2002, but notwithstanding that, the respondent submits that there is no jurisdictional error.

  15. There are, in effect, four grounds upon which the respondent relies as to why the applicants' claim of a denial of procedural fairness should fail.  First, there is nothing on the face of the Tribunal's decision to suggest that the information from the Department of Foreign Affairs and Trade was or was not put to the applicant.  There is no evidence in the way of a transcript of the hearing to indicate what was said at the hearing other than what is set out in the Tribunal's reasons for decision. 

  16. Second, the information from the Department of Foreign Affairs and Trade is of a kind which falls within the purview of sub-s.424A (3)(a) of the Migration Act. The respondent relies on the decision of the Full Court of the Federal Court in VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82. In that case the Full Court upheld the decision of Finkelstein J at first instance where his Honour said, in VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 448 at [18]:

    In this case I am satisfied that even if the applicant had been provided with all of the documents upon which the Tribunal relies, she would not have conducted her case before the Tribunal any differently, nor would it have affected the outcome of her application.  Most of the information contained in the documents relied on was uncontroversial, in many respects in the public domain, and much of it was likely to be known to the applicant.

  17. The respondent submits that in this case, as in VHAP (supra), the advice from the Department of Foreign Affairs and Trade was uncontroversial.  It is not information of a kind that would be unlikely for the applicant to have known if it went to the fact that supporters of the Fijian Labor Party were unlikely to face serious harm amounting to persecution at the hands of supporters of George Speight and his


    co-conspirators.  Finally, counsel for the respondent submits that even if the information did not fall within the exception contained in


    sub-s.424A(3)(a) there was no disadvantage to the applicant caused by any failure to give him particulars of that information.  I am referred to Re Refugee Review Tribunal; ex parte Aala (2002) 204 CLR 82.


    Again the substance of the information from the Department of Foreign Affairs and Trade had already been made clear to the applicant by the decision of the delegate.  I am referred to NAYU v Minister for Immigration & Multicultural Affairs [2004] FCA 528.

  18. The submissions for the respondent Minister refer to the applicant's original application for review and in my view need not be considered as the amended application to my mind supersedes the original application.  The submission from counsel for the respondent Minister is that the application has not demonstrated any error that would lead to the conclusion that the Tribunal failed to exercise or exceeded its jurisdiction or any entitlement to relief. 

  19. There is another point to be considered and that is the significance of the delay.  I note that the decision was handed down on 11th May 2001.  At some stage the applicant joined in a class action in the High Court which came to an end.  These proceedings were not commenced until


    2nd March 2004. There appears to be a delay in excess of the time set out in s.477 of the Migration Act of anything up to two years and ten months which would raise a concern about the competency of the application. In other words it would appear that application is out of time.

  20. There is also the question of the delay on the part of the applicant in bringing these proceedings.  Delay can be a ground for refusal of relief on discretionary grounds, even if a jurisdictional error can be established, if the delay is unconscionably lengthy and is unexplained.  There is some explanation of joining in a class action but there is no evidence before me as to what period of time the applicant was involved in that class action.  I accept the fact that involvement in the class action during that period of time would be an explanation for a period of delay, but I have no evidence before me to show that it accounts for all of the delay.  Involvement in the class action is no defence at all to a claim of being out of time under the provisions of


    s.477 of the Migration Act.

  21. I have read through the Tribunal's decision myself.  I am mindful of the fact that although the applicant received very good advice from a member of the Bar in preparing his amended application, he has not been legally represented today.  He was not in the position where he could make any cogent oral submissions to add to what was set out in his amended application for judicial review.  On my reading of the Tribunal decision I am unable to discern any other jurisdictional error which the application has not been able to make clear to the Court. 


    As such I am of the view that there is no jurisdictional error and the decision of the Tribunal is a privative clause decision as defined by


    s.474 of the Migration Act and it therefore attracts the protection of


    s.474 of the Act.

  22. That being the case s.477, notably sub-s.(1)A applies and the application is not competent. Even if that were not the case I am of the view that the unexplained delay and the length of it would be sufficient to satisfy a Court in its discretion to refuse relief because of the amount of time that is not subject to any satisfactory explanation for delay.


    For all of those reasons then it follows that the application will not succeed. 

  23. This is an application that was commenced prior to the decision of the High Court of Australia in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24. The Refugee Review Tribunal has not been added as a party and in my view to comply with the findings of the High Court in SAAP (supra) I should make an order joining the Refugee Review Tribunal. 

  24. I note also that the title of the first respondent Minister has changed and the Minister is now the Minister for Immigration and Multicultural Affairs.  I propose to make a formal order changing the title of the first respondent.  There is an application for costs in the sum of $5,000.00.  The applicant indicates that he is not working and has not, in fact, been in employment since he arrived in Australia.  Quite clearly he would not have the funds to meet a costs order.  Whilst that is not a ground not to make an order, to my mind it is a matter to be taken into account as far as time to pay is concerned.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  20 April 2006

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