SZDHZ v Minister for Immigration

Case •

[2006] FMCA 867

•

29 May 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDHZ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 867
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 – where applicant did not attend the Tribunal hearing – whether Migration Act 1975 (Cth) ss.474,475 and 476 are unconstitutional.
Judiciary Act 1903 (Cth), ss.39B, 78B
Migration Act 1958 (Cth), ss.424A, 426A, 474, 475, 476
Human Rights and Equal Opportunity Act 1986 (Cth) s.47
Bradley v Commonwealth (1973) 128 CLR 557
Dietrich v The Queen (1992) 177 CLR 292
Kioa v West (1985) 159 CLR 550
Koowarta v Bjelke-Petersen (1982) 153 CLR 168
Minister for Immigration & Multicultural & Indigenous Affairs v B [2004] HCA 20
Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273
S157 of 2002 v Commonwealth of Australia 920030 211 CLR 476
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Simsek v Macphee (1985) 148 CLR 636
SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 181
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306
Applicant: SZDHZ
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1106 of 2004
Judgment of: Scarlett FM
Hearing date: 29 May 2006
Date of Last Submission: 29 May 2006
Delivered at: Sydney
Delivered on: 29 May 2006

REPRESENTATION

The Applicant: Appeared in person
Counsel for the Respondents: Mr Godwin
Solicitors for the Respondents: Clayton Utz

ORDERS

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

  2. I note that the title of the First Respondent has changed to Minister for Immigration & Multicultural Affairs.

  3. The application is dismissed.

  4. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1106 of 2004

SZDHZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 3rd March 2004 and handed down on the 25th of that month. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the applicant.

  2. The applicant is a citizen of Tonga. He arrived in Australia on 3rd July 2003 and on the 24th of that month he applied for a Protection (Class XA) visa.  A delegate of the minister refused that application the following day.  On 4th August 2003 the applicant applied for a review of that decision by the Refugee Review Tribunal.  The applicant in his application for review, a copy of which is set out on pages 43 through to 46 of the court book, said at page 45:

    I consider myself to be a refugee according to law, a statement of argument to follow later.

  3. No documents were submitted in connection with the application for review. The Tribunal wrote to the applicant on 12th November 2003 stating that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The Tribunal invited the applicant to attend a hearing scheduled to take place at 10:00am on 2nd March 2004. A copy of that letter appears at pages 49 and 50 of the court book.
    The applicant advised the Tribunal of his changed address on
    17th November 2003 and advised that he wished to attend a hearing and would need an interpreter in the Tongan language. He indicated that he wished to bring another person with him to the hearing and wanted the Tribunal to take oral evidence from that person. A copy of the response to hearing invitation appears on pages 53 and 54 of the court book.

  4. The Tribunal wrote to the applicant on 16th December 2003. In that letter, the Tribunal asked the applicant to provide additional information on seven points relating to his claim for a protection visa. A copy of that letter appears on page 59 of the court book and on page 60 there appears a copy of the applicant’s reply. It is a typed document and it occupies the entirety of a page. Unfortunately the applicant did not appear at the hearing of the Tribunal on 2nd March. The hearing information form, which appears on page 61 of the court book, showed that a Tongan language interpreter arrived and was present from 9:48am until 10:30am on that day.

  5. The Tribunal wrote to the applicant on 8th March 2004 inviting him to attend in handing down of the decision on 25th March. In the Tribunal’s decision, the Tribunal noted that the applicant did not attend the hearing or contact the Tribunal to explain his failure to attend and said:

    In these circumstances in pursuant to s. 426A of the Act the tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

  6. I refer to page 72 of the court book. The Tribunal set out a summary of the applicant’s claim and referred in the third paragraph of page 73 of the court book to the applicant’s submission provided in answer to the Tribunal’s letter. The Tribunal’s findings and reasons are set out at pages 73 through to 75 of the court book. The Tribunal noted that it was unable to be satisfied that the applicant’s claims were authentic. This was because the Tribunal found his claims to be vague and found the applicant had failed to provide supporting information or documentary evidence. The Tribunal then went on to say at page 74:

    In the absence of such details it is impossible for the Tribunal to undertake an analysis which might identify independent corroboration of events in which he, by inference, may have claimed involvement. Lack of such details also renders it impossible for the Tribunal to make a finding as to whether the applicant’s claims are convention related. The Tribunal was not satisfied that in the absence of any detail provided that the applicant was at risk of serious harm amounting to persecution for a convention reason if he were to return to Tonga.


    Accordingly the Tribunal affirmed the decision not to grant a protection visa.

  7. The applicant sought a review of that decision and on
    28th September 2004 filed an amended application and a notice of a constitutional matter under s.78B of the Judiciary Act. The matters contained in the notice of constitutional matter are identical to those set in the amended application. I note that the lawyers for the minister filed an application in court from Laura Gazi, solicitor, affirmed on
    26th May 2006, setting out correspondence with the Attorneys-General of the States and Territories and annexed to that affidavit are replies from the Attorneys-General of all the States and Territories except South Australia and the Northern Territory.

  8. The applicant has filed a handwritten document entitled Further Submission in which he provides copies of letters written first by the Victorian Government’s solicitor on behalf of the Attorney-General for the State of Victoria on 13th October 2004 and from the Crown solicitor of the State of South Australia on behalf of the Attorney-General dated 11th October 2004. Neither of the Attorneys-General propose to intervene in the proceedings at this stage. And that appears to be the consensus amongst the Attorneys-General of the other States and Territories.

  9. In the applicant’s submission, which is handwritten, the applicant refers to the fact that the applicants and respondents in another matter, signed consent orders dated 26th May 2006 directing that the Refugee Review Tribunal should hear and re-determine that application according to law. I am unable to identify the relevance of the fact that another proceeding has been resolved by means of consent orders with the applicant’s application. The applicant seeks an order in the nature of Mandamus returning his application to the Refugee Review Tribunal. He submits that the decision of the Refugee Review Tribunal was wrong according to law. The applicant was given the opportunity to make an oral submission to the court but exercised his right not to do so. I have had the opportunity to read the written submissions prepared by Mr David Godwin of counsel on behalf of the respondent minister and I understand those submissions and they do not require clarification. Mr Godwin indicated that he did not intend to make any further oral submission.

  10. The applicant’s amended application contains seven grounds, six of which refer to constitutional matters and one of which states clearly and uncontroversially that the proceedings involve s.39B of the Judiciary Act. I accept that in ground 7 of the application the applicant is seeking relief under s.39B of the Judiciary Act. As to the other six grounds, I will deal with them in order.

  11. Ground 1 says:

    It is unconstitutional for the Commonwealth to enact legislation under the Migration Act pursuant to ss. 474, 475 and 476 having an unjust effect on individuals and citizens of Australia.

  12. Insofar as that is relevant to the applicant, who is not an Australian citizen, although he is an individual, the short answer to that ground is that it has been held by the High Court of Australia that s.474 of the Migration Act is a valid enactment within the constitutional powers. “
    I refer the Plaintiff S 157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476. Section 475 of the Migration Act, which is similarly challenged by the application, is correctly described by counsel for the respondent as ancillary to s. 474. It says in full:

    This decision is not to be taken to limit the scope or operation of s. 474 as it has been held by the High Court that s. 474 is not unconstitutional so too can this finding be made in respect of


    s. 475.

  13. Section 476 of the Migration Act was different in its form at the time the decision of the Refugee Review Tribunal was made than it is today. It is submitted however, and correctly, that it is patently within the power of the Commonwealth Parliament under the provision of s.77(i) of the Constitution, which provides that with respect to any of the matters mentioned in the last two sections the Parliament may make laws defining the jurisdiction of any federal court other than the High Court. In my view, s.476, as it stood then, was not unconstitutional. Ground 1 must fail.

  14. Ground 2 says:

    It is unconstitutional for the Commonwealth to enact legislation under the Migration Act under ss. 474, 475 and 476 that prevents courts from reviewing administrative decisions which has [sic] positive effect of removing the review rights for all Australian citizens, permanent residents, companies and businesses and immigration matters.

  15. In my view, insofar as the ground is relevant to the applicant who is not an Australian citizen, a permanent resident, a company or a business, that ground must also fail for the same reasons as I have held that ground one must fail, namely that ss.474, 475 and 476 are not unconstitutional.

  16. Ground 3 provides that:

    It is unconstitutional for the Commonwealth to enact legislation under the Migration Act, to abolish the rights to have a poor decision checked by an independent umpire according to law.

  17. No particulars are provided of that ground but it has been held quite clearly in Minister for Immigration & Multicultural & Indigenous Affairs v B [2004] HCA 20 in the decision of Kirby J that the Parliament of Australia is the supreme legislative body in Australia. There is no ground provided to the court as to why it is unconstitutional for the Commonwealth to enact the legislation that it has under the Migration Act and ground 3 must fail.

  18. Ground 4 says:

    It is unconstitutional for the Commonwealth to enact legislation under the Migration Act which authorises the making of law inconsistent with the provision of s. 47 of the Human Rights and Equal Opportunity Act 1986.

  19. The respondent submits, and I believe correctly, that the constitutional validity of ss.474, 475 and 476 cannot be affected by other Commonwealth enactments even if they are inconsistent. Inconsistency does not bring about unconstitutionality. Ground 4 must fail.

  20. The applicant submits in ground 5:

    It is unconstitutional for the Commonwealth to enact legislation under the Migration Act inconsistent with UN treaties ratified by the Commonwealth under Racial Discrimination Act 1975 Commonwealth.

  21. Obligations under international instruments become enforceable under domestic law only when the parliament adopts them in legislation. See Bradley v Commonwealth (1973) 128 CLR 557, Simsek v McPhee (1985) 148 CLR 636, Koowarta v Bjelke-Petersen (1982) 153 CLR 168, Kioa v West (1985) 159 CLR 550, Dietrich v The Queen (1992) 177 CLR 292, Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 and also Minister for Immigration & Multicultural & Indigenous Affairs v B, which I have previously referred. In that latter decision Callinan J held at 220:

    Australia’s treaty obligations do not form part of Australian domestic law unless incorporated by statute.

  22. Consequently ground 5 must fail.

  23. Ground 6 says:

    The change to migration law raises issues of deep constitutional sensitivity involving two principles. Firstly the rule of law requires that any decision of government should be capable of being tested in the court of law, secondly both democratic theory and parliamentary severity require the final arbiter of any issue in Australia must be the elected parliament.

  24. As far as the second principle is concerned, his Honour Kirby J made that same comment in Minister for Immigration & Multicultural and Indigenous Affairs v B, to which I have previously referred, and as far as decisions of government being tested in a court of law is concerned, legislation under the Migration Act is constantly being tested in this court. That ground does not establish any jurisdictional error and must therefore be dismissed.

  25. I have read through the decision myself in great detail in order to ascertain whether there are any jurisdictional error appears to which the applicant may not have had his attention drawn. I am particularly mindful of the effect of s.424A of the Migration Act. It appears to me that there is no breach of s.424A of the Migration Act. True it is that the Tribunal referred to certain material provided by the applicant but the Tribunal largely referred to the submission made by the applicant in reply to the Tribunal’s letter to him to which I have previously referred. In my view the material is clearly provided to the Tribunal by the applicant for the purpose of this application for review and is covered by the exception in sub-s. 3 of s.424A of the Migration Act.

  26. In any event, the application for review was not successful because the Tribunal was not satisfied that the applicant had provided sufficient information. It will be recalled that the applicant did not attend the Tribunal hearing. There was just not enough information to enable the Tribunal to be satisfied that the applicant had established his entitlement to a visa. And the s. 65 makes it quite clear if the criteria for a visa are satisfied, the decision maker must grant the visa but if not, there is no option but to refuse the visa.

  27. As so often happens when applicants do not attend Tribunal hearing, the almost inevitable result of non-attendance is a failure for the application. This has been made clear in many cases including SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 181 at [1] and in SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306. I am unable to identify any ground of jurisdictional error.

  28. As there is no review of the letter, the decision is a privative clause under the provisions of s.474 of the Migration Act. As such, it attracts the protection of s.474 and there will be no order in the nature of certiorari or Mandamus. I note that when the proceedings were commenced only the Minister was joined as a respondent and not the Refugee Review Tribunal. In line with the decision of the High Court of Australia and SAAP v Minister for Immigration & Multicultural & Indigenous Affairs, I will make an order adding the Tribunal as second respondent. I note that the title of the first respondent Minister has now changed and that the Minister has now reverted to the title of Minister for Immigration and Multicultural Affairs. I will make an order changing that title.

  29. There is an application for costs on behalf of the first respondent for the Minister; the applicant has been wholly unsuccessful. There is no reason, in my mind, why I should depart from the principle that costs follow the event. The amount of $5,000.00, which is sought inclusive of counsel’s fees, is to my mind an appropriate figure.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  9 June 2006

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