SZDPD v Minister for Immigration
[2005] FMCA 1272
•15 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDPD v MINISTER FOR IMMIGRATION | [2005] FMCA 1272 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – Applicant a citizen of China – delay. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.477(1A) |
| SZDPD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 756 |
| Applicant: | SZDPD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1485 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 August 2005 |
| Date of Last Submission: | 15 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 15 August 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Ms Kaur-Bains |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $1,000.00 and I allow three (3) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1485 of 2004
| SZDPD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
The application before the Court today is an application to set aside a decision made by this Court on 2 November 2004. The decision made by this Court on 2 November 2004 was to dismiss an application to review a decision of the Refugee Review Tribunal. That decision was made on 12 March 2001 and handed down on 5 April 2001.
The decision of the tribunal was a decision not to grant a protection visa to the applicant. The application for review was dismissed on
2 November 2004 because the applicant did not attend the hearing. The applicant did not advise the Court that she was not able to attend. I refer to the decision which I made on 2 November 2004 where I note that the matter was listed for final hearing at 10.15 am. I see from that decision that the applicant was called at 10.17 am and 10.48 am.
The applicant did not appear, nor did anyone appear on her behalf.
I noted that the solicitors for the respondent had not received any message from the applicant indicating that anyone was going to appear for her and no message was received to indicate that the applicant had been delayed through illness or injury or some other emergency.
I dismissed the application according to rule 13.03A. The reasons for that decision are cited as SZDPD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 756.
The applicant now seeks an order that that decision dismissing her substantive application should be set aside. She says that she was not able to attend Court because she was ill. She asks that her application should be reinstated and heard by the Court. She asks the Court to make an order by way of a writ of mandamus directing the Refugee Review Tribunal to rehear and redetermine her application for a protection visa. She says that the Refugee Review Tribunal failed to grant her procedural fairness. She says that procedural fairness was denied to her:
Because RRT decision just rely on part of Indonesia authorities and news, but not for the reality compare with the evidence before the news and what happened after that and the risk to go back still high, not safe, as Indonesian authority said.
The respondent minister opposes the application to set aside the decision of 2 November 2004 dismissing the application. Ms Kaur-Bains, counsel for the respondent, submits to the Court that there are three reasons why the Court should refuse the application: first, the inordinate amount of delay in bringing this application; second, the fact that the applicant did not attend the hearing and did not produce any medical evidence as to her claimed inability to attend; third, that the applicant's case in respect of the substantive application is hopeless.
I look first of all at the question of delay. There is no doubt that inordinate and unexplained delay in seeking relief is a ground for the Court declining to exercise its discretion to grant that relief. The applicant's entire case in these proceedings has been characterised by significant delay. In the original proceedings before the Court the respondent's solicitors filed a notice of objection to competency.
They noted that the applicant was notified of the decision of the Refugee Review Tribunal on or before 16 April 2001, but the applicant did not apply to the Federal Magistrates Court for review of that decision until 19 May 2004; more than three years later. I asked the applicant to explain that delay and she told the Court that she had instructed a solicitor, an Adrian Joel, to act for her.
She eventually withdrew Mr Joel's instructions and asked for her file back. She said that she had not received that file back. In any event, she lodged her original application and arranged for a Mr Edmond Teng, solicitor, to appear for her. He filed a notice of appearance on
26 August 2004 and he filed a notice of ceasing to act on 27 October 2004. The applicant said that she believed her former solicitor, Mr Joel, had commenced some proceedings on her behalf, but she was unaware of what they were or in what court those proceedings, if any, had been commenced. There is no evidence before me of any prior proceedings.
What is left is an application lodged on 19 May 2004 to review a decision handed down on 5 April 2001. It would appear that if I were to allow the application before me today the applicant would face difficulties in dealing with the notice of objection to competency filed by the respondent. Section 477(1A) of the Migration Act provides that an application to the Federal Magistrates Court for review of a privative clause decision must be made within 28 days of the notification of that decision. The applicant of course did not make an application within the required 28 days.
The respondent submits that the application was made approximately 1130 days after notification. That objection to competency would not be upheld of course if I were to find that the decision of the Refugee Review Tribunal was not a privative clause decision as set out in section 474(2) of the Migration Act. Even if I were to make that finding, however, the applicant would still face the difficulty of overcoming a delay of more than three years in seeking relief.
As I said, inordinate delay is a ground for the Court not to exercise its discretion to grant relief by way of an order in the nature of a prerogative writ such as mandamus.
The question of delay appears in the current application as well.
The application for review was dismissed on 2 November 2004.
A copy of the orders was forwarded by the Court to the respondent within a short period of time after that. The applicant should have received a copy of those orders within a week at the very latest.
The applicant did not, however, apply to set aside that order dismissing the application until 17 May 2005, which is a delay of more than six months. Again she appears to have had some assistance from Mr Edmond Teng, solicitor, although he is not on the record as appearing for the applicant.
The applicant has produced a copy of a medical certificate from Dr Peter W. Grant, a consultant cardiothoracic surgeon, in an effort to explain the delay in bringing this current application. That letter is dated 15 June 2005. In the letter Dr Grant confirmed that the applicant was to undergo cardiac surgery on 27 June 2005. Dr Grant advised that she would be admitted the day before the operation, she would stay two nights in the intensive care unit and then would spend a further five or six days in a hospital ward before being discharged. At home she would have needed a further six weeks to recover before seeing Dr Grant for a final post-operative review.
At first glance it appears difficult to see how Dr Grant's letter can assist the applicant in explaining her delay in bringing this current application. I accept everything that Dr Grant says in his letter.
I note that the applicant said that Dr Grant was not in fact able to perform the operation until 4 July. Quite clearly that would have put back the amount of time that the applicant required to recover from that surgery, both in hospital and at home. The surgery, however, took place after the applicant had lodged her application for review.
That application was filed on 17 May 2005, well before the operation. Dr Grant's letter does not refer to any illness that the applicant may have sustained on 2 November 2004. She told the Court that she had a severe migraine and could not wake up. She said she had such a bad headache that she could not even ring up. She said that she in fact had to remain in bed for two days before she was even able to go to a doctor. There is no evidence that she saw Dr Grant in respect of her migraine headache on 2 November and Dr Grant does not mention it or any symptoms resembling it in his letter of 15 June 2005.
I am not satisfied that the applicant has given a satisfactory explanation for a delay of more than six months in bringing an application to set aside the orders of 2 November 2004. I say this even though it is quite clear from Dr Grant's letter that the surgery which the applicant did undertake was quite significant and it is highly likely that the applicant would have suffered symptoms for a considerable amount of time prior to that surgery taking place. There is no evidence, however, as to what those symptoms were or when the applicant required any treatment for them.
I am mindful of the fact that the applicant is not legally represented. To my mind, it is necessary in the interest of justice to examine the nature of her substantive application which she wishes the Court to bring. The applicant is a citizen of Indonesia. She is ethnic Chinese and speaks Bahasa Indonesia. She arrived in Australia on 31 December 1999 and applied for a protection visa on 13 January 2000. A delegate of the minister refused that application on 28 January 2000 and the applicant applied for review on 18 February of that year.
The applicant's case is that she is an ethnic Chinese Indonesian and suffered from menacing and intimidating behaviour during riots in May 1998. The basis of her case is that Chinese Indonesians suffer persecution from other Indonesians, those who are known as, I believe, pribumi. The applicant fears that the situation of inter-ethnic conflict that has occurred in parts of Indonesia could deteriorate. I have read the decision by the Refugee Review Tribunal. The applicant says that she was denied procedural fairness because the tribunal, whilst accepting that she had a strong subjective fear, found that the government of the then President Wahid was committed to removing discrimination and was taking active steps to do so.
The Tribunal gave a lengthy and detailed decision. The Tribunal accepted that Chinese Indonesians have faced discrimination in daily life and that the applicant may feel constantly aware of being part of the Chinese majority and may feel conscious of a general feeling of ill‑will towards her. On that same page of the court book the Tribunal accepted that ethnic unrest and riots in Indonesia, especially in 1998, involved the threat of serious harm. The Tribunal even accepted that Chinese Indonesians caught up in sporadic rioting in Indonesia could face death, significant personal injury or significant detriment.
The Tribunal accepted that the applicant had faced at least significant detriment when she was mentioned by looters and extortionists during the riots in May 1998.
At page 35 of the decision the tribunal made these findings:
In the light of this evidence, the Tribunal finds that the sociopolitical situation in Indonesia is not deteriorating.
The Tribunal further finds no evidence that in the reasonably foreseeable future the situation in Indonesia will deteriorate in such a manner such that there would be a real chance that the applicant might be harmed.
The Tribunal finds that the independent evidence, which the tribunal accepts, indicates that the Indonesian authorities since the election of President Wahid have acted promptly to restore order in situations of civil disturbance and act against those who have committed criminal offences and in so doing are providing an adequate level of protection.
The independent evidence to which the Tribunal referred included transcripts of various news programs including the ABC radio program of The World Today. It may be that the decision by the Tribunal in accepting that the applicant and people in her position have suffered detriment from inter-ethnic rioting in the recent past but that the Indonesian authorities were acting to maintain order and prevent such rioting would be seen by the applicant as a hard decision. Unfortunately for the applicant, decisions on the merits of an applicant's case remain the province of the fact-finding Tribunal and not the Court conducting a judicial review.
I have considered whether the Tribunal's decision discloses any jurisdictional error, but I am unable to identify such an error.
The decision of the Tribunal indicates that the Tribunal considered the applicant's case and the independent evidence very thoroughly, but unfortunately for the applicant, was not persuaded that the applicant had a well-founded fear of persecution within the meaning of the Refugees Convention.
There is no reviewable error disclosed. It appears to me that there is no jurisdictional error in the Tribunal's decision and as such the decision is a privative clause decision within the meaning of section 474(2) of the Migration Act. Having considered all these matters, I am satisfied that the grounds advanced on behalf of the respondent minister for opposing this application have been made out. First, the delay in bringing this application to set aside the decision of 2 November 2004 is inordinate and not properly explained. It is appropriate that the Court should decline to exercise its discretion to grant relief. Second, the applicant did not attend the hearing on 2 November 2004 and her explanation as to her failure either to attend or to notify the Court of her inability to attend has not been satisfactorily explained either by medical evidence or any other evidence.
Third, on a substantive basis the applicant's application for review of the decision of the Refugee Review Tribunal would not be successful. She has not established any ground for review by way of jurisdictional error and her claim of a denial of procedural fairness is no more than application to reargue the merits of the decision. I could not discern any evidence of a denial of procedural fairness in that the applicant attended the hearing of the Refugee Review Tribunal and was able to give evidence in support of her case. The Tribunal member appears to have considered all of the available evidence. The decision therefore appears to be a privative clause decision as set out in section 474(2) of the Migration Act. In any event, the substantive application is not competent in that it was made outside the time limit set out in section 477(1A) of the Migration Act.
The delay between the decision being notified to the applicant and the commencement of the original proceedings on 19 May 2004 is an inordinate delay that has not been satisfactorily explained and that reason alone would be sufficient to persuade a Court not to exercise its discretion to grant relief. The application is dismissed and I require a transcript of my reasons for this decision.
There is an application for costs in the sum of $1,000.00. The amount sought on behalf of the respondent is certainly not unreasonable and it is well within the scale provided by the Federal Magistrates Court Rules. The applicant says that she does not have any income and would not be able to pay such an order. I accept the fact that she has no income, but that of itself is not a ground for the Court not to make a costs order. It would be a ground for the Court to make an order for time to pay because if an applicant has no funds the applicant would not be in any position to pay the sum of $1,000.00 within 28 days. As I said, it is not a reason not to make a costs order at all. The respondent has been successful and the respondent is entitled to an order for costs.
The applicant is to pay the respondent's costs fixed in the sum of $1,000.00. I allow three months to pay.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 30 August 2005
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