SZCYK v Minister for Immigration
[2005] FMCA 613
•27 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCYK v MINISTER FOR IMMIGRATION | [2005] FMCA 613 |
| MIGRATION – Visa – protection visa – Refuge 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 a citizen of Sri Lanka – where Applicant did not attend the RRT hearing – where application for protection visa not lodged until 4 years and 8 months after Applicant arrived in Australia – no reviewable error. PRACTICE & PROCEDURE – Notice of Objection to Competency – where decision handed down on 27 June 2002 but application not filed at Court until 11 March 2004 – application not competent – court has no jurisdiction. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474, 475A, 477
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed
| Applicant: | SZCYK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 663 of 2004 |
| Delivered on: | 27 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 27 April 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Knight |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the Notice of Objection to Competency is upheld. The Application is not competent as the Court has no jurisdiction.
The Application is dismissed.
The Applicant is to pay the Respondent's costs fixed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 663 of 2004
| SZCYK |
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 5 June 2002 and handed down on 27 June 2002. The Tribunal affirmed the decision of a delegate of the Minister not to grant a Protection Visa to the Applicant.
The Applicant is a citizen of Sri Lanka. He arrived in Australia on
26 January 1996. It was not until the 29 September 2000 that he lodged an application for a Protection Class XA Visa.
In his application lodged on his behalf by Allan Rigas & Associates, Visa and Migration Consultants, the Applicant claimed that he had been advised to depart his homeland due to his active membership of an organisation called the JVP. He claimed that he had been attacked and injured by the authorities and by the JVP’s political opponents. One attack resulted in his being hospitalised for six days.
The Applicant claimed that he and his family were advised of a strong campaign to be mounted by the authorities against known JVP members so he decided to leave the country. He claimed that he did so because of pleas by his family and his fear of persecution due to his significant role in the JVP. He claims to fear for his life and did not feel that the JVP could protect him from rogue members of the security forces who continually perpetrated human rights abuses.
The Applicant left Sri Lanka and entered Australia on a Visitor's Visa on 26 January 1996. He said in his statutory declaration, dated
25 September 2000, that once his temporary visa had expired he remained in Australia unlawfully until he was granted a Bridging E Visa due to his membership of a class action organised by First City Solicitors. He also stated that the class action had recently been dismissed. He decided to apply for a Protection Visa.
The application was duly lodged on 29 September 2000. On
28 November of that year a delegate of the Minister refused to grant a Protection Visa and on the 21 December 2000 the Applicant applied for a review of that decision to the Refugee Review Tribunal.
On 4 April 2002 the Tribunal wrote to the Applicant advising that it had considered all the papers relating to the application but was unable to make a favourable decision on that information alone. The Tribunal invited him to attend a hearing to give oral evidence and present arguments in support of his claims.
The hearing was listed for 1.00 pm on Wednesday 5 June 2002. The letter was forwarded by registered post and no response was received. The letter was returned to the Tribunal marked "Left Address Seven Months Ago". The Applicant's adviser was contacted on 10 April,
21 May and 4 June 2002. The adviser said that he had attempted to contact the Applicant but without success.
I note that the copy of the application of 4 April 2002 has three registered post stickers, the copies of the letter being forwarded to the Applicant's Migration Adviser, the Applicant's home address and the Applicant's postal address. The Applicant did not appear before the Tribunal on the hearing date. The Tribunal decided to make a decision exercising its powers under s.426A of the Migration Act without taking any further action to invite the Applicant to appear.
The Tribunal made its decision on 5 June 2002 and handed that decision down on 27 June 2002.
In the Tribunal's decision, the Tribunal referred to the Applicant's claim to have been a member of the JVP which he said to have joined in 1989. The Tribunal was sceptical about the Applicant's claims.
At page 104 of the Court Book in the first full paragraph, the Tribunal expressed serious concerns about the four and a half year delay in the lodgement of an application for a Protection Visa. The Tribunal member said:
I have difficulty in accepting as reasonable that this was because he had obtained s 435 Visas. It is obvious from the history given by him that he had obtained legal advice immediately after arrival in Australia and if this was so, it is difficult to accept as reasonable that he would not have applied for a Protection Visa earlier if indeed his claims of fearing persecution were true.
The Tribunal said that it had difficulty in accepting that the responsibilities and activities that the Applicant claimed as a member of the JVP would have been given to him when he was 15 or 16 years old. The Applicant takes issue with that.
The Tribunal did point out that the Applicant had not attended the hearing despite being given an opportunity to do so, saying:
If the Applicant had attended to give oral evidence these matters and others would have been discussed with him. As it is, they remain unanswered.
The Applicant filed an application for review of the Tribunal decision on 11 March 2004. That application was accompanied by an affidavit. The application makes three claims about the Tribunal decision.
i)
That the Tribunal exceeded its jurisdiction by affirming the decision made by the delegate of the Respondent on
28 October 2000.
ii)That the Tribunal made an error in law by affirming the decision in contravention of the 1951 United Nations Convention on Refugees.
iii)That the Tribunal made a serious jurisdictional error by concluding that the JVP was a university – intellectual-led organisation and it was difficult for the Tribunal to understand or accept that someone of the Applicant's age at the time would have been given any responsibility at all, let alone at the level claimed by the Applicant.
In the supporting affidavit, the Applicant set out the claim of being an active JVP member and having been in the front line fighting an insurrection against the government of Sri Lanka. He said that after residing in Australia for some time he decided to apply for a Protection Visa. When the Refugee Review Tribunal affirmed the decision not to grant him a visa he was not happy with the refusal so he then made an appeal to the Minister for Immigration.
He said that on 14 February 2003, the Minister's Intervention Unit wrote to him stating that the Minister had decided not to consider exercising his powers under s.417 of the Migration Act. He said that after that decision he tried to join one of the class actions that were ongoing before the High Court but as he had fallen ill he could not join any of those.
He said in his affidavit that he now hears that in Sri Lanka the government has again started attacking JVP members and killing them and burning their houses and property, therefore he wished to appeal to the Federal Magistrates Court.
The Applicant did not file an outline of his submissions, although I note the Respondent has. The Respondent has also filed, on 14 July 2004, a Notice of Objection to Competency. The Respondent objects to the jurisdiction of the Court to try the application on the grounds that:
b)The decision is a privative clause decision.
c)That contrary to s.477 (1) (a) of the Migration Act, the application was not lodged within 28 days of the applicant being notified of the decision of the Tribunal.
d)That by virtue of sub-section (2) of s.477, the Court must not make an order allowing or which has the effect of allowing an Applicant to lodge an application outside the period specified in s.477(1)(a).
The Applicant has attended Court on the hearing. He claimed that the Tribunal had exceeded its jurisdiction in that he had a date for a hearing at the Refugee Review Tribunal but was given a result without any hearing. He reiterated that he was certainly under age when he joined the JVP but the JVP took any age from 15 to about 25.
When asked why he did not attend the hearing; he said that when he went to see his lawyer, the lawyer said that he was trying to contact him so that he could attend the hearing.
The Applicant was not able to indicate why, if his lawyer could not contact him, that it was the fault of the Refugee Review Tribunal that he did not attend when he his lawyer had been notified.
I asked the Applicant about having joined a class action and asked him to indicate which class action he had joined. On his evidence and his submissions to the Court it appears that he joined or attempted to join two separate class actions. One, before he applied for a Protection Visa and the second in 2003 after he had heard from the Minister that the Minister was not prepared to intervene under s.417. The Applicant replied that the lawyer, who was in Melbourne, told him that he could not continue the class action further.
I note the written submissions of the Respondent's solicitors and note that the Tribunal had serious doubts about the credibility of the Applicant's claims and that most importantly the Tribunal found the four and a half year delay in lodging a Protection Visa Application was inconsistent with a real fear of persecution for a convention reason. In fact, the primary element of the Applicant's claim about his responsibilities in the JVP as a 15 or 16 year old boy was found by the Tribunal to be inherently implausible. In my view, there is evidence which would allow the Tribunal to form that view.
The Minister submits, and I believe correctly, that the Applicant does not identify any ground of review in the application. The Applicant said that someone else had helped him in preparing the application.
The explanation given by the Applicant as to why the Tribunal exceeded its jurisdiction in that the Tribunal had made a decision in his absence, does not appear to me to be an excess of jurisdiction as I am satisfied, on the evidence, that the applicant had been given notification through his lawyer and that the Tribunal had made several attempts, including contacting his Migration Adviser on three separate occasions, to try to invite him to attend the hearing. The fact that the Applicant's lawyer could not contact him to attend the hearing is not, to my mind, any reason why the Tribunal was at fault. After all, if the Applicant's adviser had instructions to act, the adviser could still have appeared at the hearing and sought an adjournment. This did not happen.
The Applicant was not able to explain why the Tribunal had erred in law by affirming the decision of a delegate of the Minister in contravention of the United Nations Convention on Refugees. The convention does not provide that any person who claims to be refugee should automatically be accepted as one.
The jurisdictional error claimed by the Applicant is no more than a request to obtain a merits review or a re-hearing on the facts. It is not open to the Court to review of the merits of the decision of the Refugee Review Tribunal and I am referred to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR, 259 at 272.
The Tribunal was, to my mind, acting well within its jurisdiction when it considered the Applicant's application for a Protection Visa on the basis of the material which was before it. The reality is that the Tribunal did not accept the Applicant's account. If the Applicant had attended the hearing of the Tribunal well then maybe the Applicant might have been able to persuade the Tribunal that there were reasons that the Tribunal should consider. The fact that the Applicant did not attend the Tribunal hearing is a matter that the Applicant may need to take up with his Migration Adviser but according to the Tribunal; the Migration Adviser was not able to contact the Applicant. There is no error by the Tribunal in that regard.
To my mind there is no reviewable error and the provisions of s.474 of the Migration Act apply. The decision is a privative clause decision and accordingly the provisions of s.477 apply. The application was lodged well outside the 28 days provided and the Court has no power to extend the time to lodge an application.
I am satisfied that the application is not competent, meaning that the Court has no jurisdiction to try the application.
In any event, as there is no reviewable error, the application should be dismissed in any event.
This is a matter that is appropriate for an order for costs. The application has been unsuccessful and costs usually follow the event in this jurisdiction. In other words, the party who is unsuccessful will often receive an order that that party be responsible for the other party's reasonable legal costs. The Respondent seeks the sum of $4,000 which includes not only today's proceedings but also the earlier mention and there's also an earlier appearance before the Registrar. To my mind, the sum of $4,000 that is claimed is well within the range provided by the Federal Magistrates Court Rules. I note that counsel was not briefed on this occasion but the time of a senior solicitor has been involved throughout and the amount sought is certainly a reasonable one and in my view appropriate.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V Lee
Date: 10 May 2005
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