SZCWH v Minister for Immigration
[2006] FMCA 810
•22 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCWH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 810 |
| MIGRATION – Review of decision by Refugee Review Tribunal – use of country information – applicant alleges Refugee Review Tribunal findings coloured by erroneous factual finding – unexplained delay of 4 years. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.483 |
| NAHI v Minister for Immigration Multicultural and Indigenous Affairs (2004) FCAFC 10 SZANK v Minister for Immigration Multicultural and Indigenous Affairs (2004) FCA 1478 SZGPZ v Minister for Immigration Multicultural and Indigenous Affairs u/r 26 May 2006 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd (1949) 78 CLR 389 Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 O’Reilly v Mackman [1983] 2 AC 237 |
| Applicant: | SZCWH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 584 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 22 May 2006 |
| Date of last submission: | 22 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 May 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Mr C. Jayawardena |
| Counsel for the Respondent: | Mr A. J. McInerney |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
Application is dismissed.
I order that the applicant pay the respondent’s costs in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 584 of 2004
| SZCWH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) decided on 29 May 1995 to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the applicants.
The applicant is a 41 year old male who claims to be a citizen of India and of ethnicity and faith (“the Applicant”). The Applicant’s wife is also included in the applications.
The Applicant and his wife arrived in Australia on 21 October 1992.
On 15 January 1993, the Applicant lodged an application with the Department of Immigration and Ethnic Affairs (“the Department”) under the Act.
The Applicant claimed that he feared persecution by the police, the Indian Army and extremists by reason of his political opinion, race, religion and membership of a social group. The Applicant was a member of the All India Sikh Student Federation (“the AISSF) as a result the Applicant was involved in the Khalistan Liberation Force.
On 18 May 1993, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 29 May 1995, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
The tribunal proceeding
The Applicant and his wife attended a Tribunal hearing on 24 May 1995. They were accompanied by an adviser and had the assistance of an interpreter.
The Tribunal gave the Applicant the benefit of the doubt that he was a Sikh.
The Tribunal found that Sikhs were not adversely treated except on the basis of perceived or actual political opinion. Accordingly, the Tribunal found no persecution by reason of race or religion.
In support of his claim of persecution by reason of his political opinion or imputed political opinion the Applicant relied on two incidents of arrest, one in 1984 and another in 1991. The Tribunal was not persuaded that either arrest was unlawful and found that the periods of detention were very brief and bribes were paid on both occasions. The Tribunal noted that neither the Applicant nor his wife had any real difficulty obtaining travel documents and leaving the country.
The Tribunal found that the Indian authorities “would be extremely unlikely to have any Convention-related interest in the Applicant now or in the future.”
The Tribunal made adverse findings in respect of the Applicant’s credibility noting that there was a pattern of claims made in writing by the Applicant and denied when questioned. The Tribunal found the Applicant’s evidence unreliable.
The Tribunal found that, in the context of India as a whole, the Applicant and his wife do not have a real chance of persecution and that their fear of persecution was not well founded.
Ultimately, the Tribunal concluded that the Applicant and his wife are not persons to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The proceeding before this court
On 5 March 2004, the Applicant filed an application and affidavit in this Court seeking judicial review of the Tribunal’s decision.
Pursuant to Orders made on 2 July 2004, the Applicant filed an amended application on 15 September 2004 (“Amended Application”) seeking review on 4 particularised grounds.
The Applicant is represented by Mr Jayawardena this morning before me, and relies on grounds 1 and 3 only of the Amended Application. Grounds 2 and 4 were abandoned by the Applicant. Grounds 1 and 3, being the grounds relied upon are set out as follows:
“1. The Tribunal made Jurisdictional Error by drawing the following conclusions where there is no evidence and thus questioning the credibility of the Applicant:
Particulars: page 20 – para 3
“On the matter of religion I must mention at the outset that I am not convinced that the Applicant is a Sikh. Neither in his passport photo nor in his appearance before me, did he wear the turban traditionally worn by the adult male Sikhs.”
“If the applicant was a member of the All India Sikh Students Federation (AISSF) as he claimed, it would be reasonable to expect that he would display in India and in Australia visible evidence of his commitment to and pride in being a Sikh.”
“3. The Tribunal was ‘procedurally unfair’ in making wrong conclusions to the effect:
Particulars – page 27 para 2
“I attaché (sic) no significance to the applicant’s claim that Sikhs are discriminated against.”
“I am aware of no treatment of the Sikhs which could be regarded as systematic nation-wide discrimination or persecution.”
First ground
In respect of the first ground, the Applicant submits that the Tribunal’s finding in respect of the Applicant’s claim of persecution by reason of his religion is coloured by the Tribunal’s finding that it was not convinced the Applicant was Sikh, and that it proceeded with its deliberations upon that basis. The First Respondent submits that such a complaint is misconceived in that the Tribunal clearly stated that it gave the Applicant the benefit of the doubt and proceeded to consider his case as though he was a Sikh.
Certainly the words used by the Tribunal in its decision would appear to support that submission. The Tribunal said:
“Nevertheless, for the purpose of this decision, I give the applicant the benefit of the doubt and I treat his case as though he is a Sikh.”
In those circumstances, the ground relied upon by the Applicant in which he claims that the Tribunal erred in drawing the conclusion that the Applicant was not a Sikh, in the absence of any evidence, that being is misconceived. After identifying its concerns about that claim the Tribunal proceeded on the basis that indeed the Applicant was a Sikh.
Accordingly, the first ground is not made out.
Second ground
The second ground is referred to as ground 3 of the Amended Application, set out above
The Applicant contends that the words used by the Tribunal indicate that the Tribunal had no regard to material before it that disclosed that in fact Sikhs are discriminated against.
The material referred to by the Applicant is material identified by the Tribunal in its decision. That material formed part of the material to which the Tribunal had regard, and which it listed in detail in its decision. The Tribunal in its decision made the following findings in respect of that material:
“Apart from the exceptional events of 1984 and the aftermath of the assassination of Prime Minister Gandhi by the Sikh bodyguards, I am aware of no treatment of the Sikhs which could be regarded as systematic nationwide discrimination or persecution. Material quoted elsewhere in the present document indicates that the Sikhs suffer no particular discrimination and that they continue to play a prominent role in the Indian economy and society. If their recruitment to the Indian Armed Forces has reduced in recent years to a level more commensurate with their percentage in the Indian population, I see no discrimination or persecution in that.”
The particular words in respect of which the Applicant complains are those where the Tribunal says:
“I am aware of no treatment of the Sikhs which could be regarded as systematic nationwide discrimination or persecution.”
The Applicant contends that the material to which the Tribunal had regard is contained in the document headed “India An Unnatural Fate” and is inconsistent with such a finding. The Applicant particularly relied on a chapter in that document entitled “Disappearances in Punjab” as supporting his claim of discrimination as a Sikh in India during the relevant time.
The principles are well established in respect of the Tribunal’s entitlement to have regard to independent country information that it considers relevant, and to place such weight as it chooses on such information and material (NAHI v Minister for Immigration Multicultural and Indigenous Affairs (2004) FCAFC 10 at 11; SZANK v Minister for Immigration Multicultural and Indigenous Affairs (2004) FCA 1478 Hely J at [16]; SZGPZ v Minister for Immigration Multicultural and Indigenous Affairs u/r 26 May 2006, Collier J at [31]).
Accordingly, this ground is not made out.
Moreover, the Tribunal made a finding that, having considered the Applicant’s particular circumstances, it would be reasonable for the Applicant to relocate within India. In those circumstances, even if the Tribunal had erred in failing to find persecution for a Convention reason, the Tribunal has made an independent finding that, in the circumstances, it was reasonable for the Applicant to relocate.
Accordingly, the decision is not affected by jurisdictional error.
Delay
However, even if I am wrong and the Tribunal’s decision is affected by error, the granting of discretionary constitutional writ relief is opposed by the First Respondent, having regard to the delay by the Applicant in filing for relief in this Court on 5 March 2004 in respect of a Tribunal decision of which he received notification on 29 May 1995. The Applicant joined the Lie class action before the High Court of Australia on 16 July 1999. In the circumstances, the relevant period of delay is the 4 years between 29 May 1995 and 16 July 1999.
It was made very clear to Mr Jayawardena, both at the commencement of his submissions and at the conclusion of his submissions, that there was no evidence from the Applicant at all on file to address that particular four year period of delay, and that it is a significant period in respect of which the Court would have regard to the conduct of the Applicant in the prosecution of his right of review of the Tribunal’s decision.
Delay is certainly a ground upon which constitutional writ relief may be refused. (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”) at [84] and [211]; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd (1949) 78 CLR 389). McHugh J in SAAP at [80] observed:
“The issuing of writs s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands.”
In considering the delay by the Applicant of four years in taking any steps to seek review of the Tribunal’s decision and the importance of finality of administrative decisions, I have regard to the comments of McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 (“Ex parte Marks”) at 495 in which he said the following:
“Where an applicant seeks the issue of constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases.”
Similarly, Lord Diplock stated in O’Reilly v Mackman [1983] 2 AC 237 at 280-281:
“The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in the purported exercise in decision making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.”
In balancing the interests of justice to the community in having such administrative decision making finalised and the interests of the Applicant in having an opportunity to have his claims heard and considered according to law, it is my view that the delay of four years in taking any steps to prosecute any appeal arising out of the Tribunal’s decision, or proffering any explanation for failing to take any such steps, is conduct amounting to undue, unreasonable, unwarrantable and unjustified delay and the relief sought should not be granted.
Accordingly, the application is dismissed.
RECORDED : NOT TRANSCRIBED
The First Respondent seeks costs fixed in an amount of $5,000. That order is not opposed by Mr Jayawardena on behalf of the Applicant, on the basis that it is reasonable and consistent with costs orders made by this Court in similar matters.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Emmett FM.
Associate: S. Kwong
Date: 6 June 2006
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