SZDPZ v Minister for Immigration - [2004] FMCA 1016

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDPZ v MINISTER FOR IMMIGRATION

[2004] FMCA 1016

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant – Applicant a citizen of Pakistan – application made more than six years after decision of Refugee Review Tribunal – no reviewable error – where objection as to competency made by Respondent – no jurisdictional error – application dismissed as incompetent.

PRACTICE & PROCEDURE – Comments on the desirability of applications that fail to assert any legal error as opposed to any factual error being dealt with promptly.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.475A; 477 (1A)

SZAMO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 943 – followed
SZAXV v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 757 - followed

Applicant:

SZDPZ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1527 of 2004

Delivered on:

8 December 2004

Delivered at:

Sydney

Hearing Date:

8 December 2004

Judgment of:

Scarlett FM

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Ms Morgan

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed as incompetent.
The applicant is to pay the Respondent’s costs of and incidental to this application in the sum of $4,000.00.
The application is removed from the list of cases awaiting finalisation.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1527 of 2004

SZDPZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The application before the Court is an application for review of a decision by the Refugee Review Tribunal. The decision was handed down on 19^th December 1997. That decision affirmed a decision of a delegate of the Minister not to grant a protection visa for the applicant.
The applicant filed his application in this Court on 21^st May 2004. The application was made more than six years after the decision was handed down. The reason for the lapse of time is due to the fact that the applicant was a party to a class action before the High Court of Australia. It is my view that the class action has created difficulties for the Courts and for the parties to that ill-fated action.
The respondent has filed a notice of objection to competency. The respondent says that the application is out of time. The respondent says that the Court has no jurisdiction to review the decision made by the Refugee Review Tribunal because subs 477(1A) provides that an application to the Federal Magistrates Court must be made within
28 days of the notification of the Tribunal decision. For the reasons which I have mentioned, this application is well over six years late. Indeed, at the time that the decision was made by the Refugee Review Tribunal, the Federal Magistrates Court had not come into existence.
In order for me to decide whether that objection is valid, I must first determine whether or not the decision by the Refugee Review Tribunal was a privative clause decision. The reason for this is that the time limits imposed by s.477(1A) only apply to decisions of that nature.
As Healy J has pointed out in the decision of SZAMO and Minister for Immigration and Multicultural and Indigenous Affairs (2004)
FCA 943, which is a decision on an appeal from the Federal Magistrates Court, if the decision by the Refugee Review Tribunal was infected by a denial of natural justice, it would not be a privative clause decision because it would not satisfy the description of a decision made under the Migration Act. Therefore, it is necessary for me to consider the substance of the applicant’s claims, and I must make a decision on those claims notwithstanding the fact that an objection has been made as to competency.
The applicant has filed only one document. His original application was filed on 21 May 2004. He sets out four grounds for relief. The grounds that he gives are as follows:
1.The Court erred in making a decision -
By “the Court,” he means the Refugee Review Tribunal.
2.The respondent was not advised of and did not take into account the applicant’s good conduct since entering Australia.
3.I want to have a review of my case by the Federal Magistrates.
4.I do not agree with the decision made by the respondent.
In my view, the application on its face does not disclose a ground for relief. The application for judicial review fails to engage the jurisdiction of the Court. The nearest that it comes to doing so is in the first ground - the allegation of an error in making the decision. The application is silent as to whether that is jurisdictional error or an error on the facts. The other matters alleged are purely factual matters.
I might comment at this stage that I should perhaps echo the words of Federal Magistrate Driver in a recent decision of SZAXV and Minister for Immigration and Multicultural and Indigenous Affairs. That decision was delivered on 3 November this year and the Court’s media neutral citation is [2004] FMCA 757. His Honour said in that case about that application:
In the circumstances, it is surprising that the Minister has permitted the matter to go to a final hearing. The Court makes time available for applications that are, on their face, defective to be dealt with on an interlocutory basis. In my view, this application ought to have been dealt with on an interlocutory basis. However, the Minister has elected to allow the matter to go to a final hearing.
It appears to me, with respect, that this case is in a similar position to the matter referred to by Federal Magistrate Driver.
The facts of the case before me is that the applicant is a citizen of Pakistan. He arrived in Australia in September 1996. He lodged an application for a protection visa that same month. He claims persecution on the ground of political activity. He claimed in his application that he was a member of the Zia Foundation, which was aligned to the Pakistan Muslim League. He says that in 1995 he was present in a violent clash between the Pakistan Muslim League and the Pakistan People’s Party. Ten people died. The Zia Foundation ceased to support him and charges were brought against him. He said that if he returns to Pakistan he will be arrested and killed. He said that he will be at risk from local members of the Pakistan People’s Party.
His claim was considered by the Refugee Review Tribunal in December 1997. The applicant attended the hearing and gave evidence. He told the Court today that the Tribunal gave him an opportunity to put his case; the Tribunal asked him a number of questions and he answered those questions. He presented some documents to the Tribunal and he said that the Tribunal did not give proper consideration to those documents.
There does not appear to be anything in the applicant’s case which would suggest the Tribunal hearing was marred by unfairness of a procedural nature or denial of natural justice. On his own account, he had the opportunity to present his case fairly. The difficulty for him is that the Tribunal did not accept his case. The Tribunal accepted a number of parts of his case. Unfortunately, the Tribunal did not accept that some of the documents which he tendered, including the arrest warrant, were genuine. This of course is purely a matter for the Tribunal to decide. The Tribunal was not satisfied that the applicant’s evidence on a number of points was credible.
At page 90 of the Court book in the first paragraph, the Tribunal did not accept the applicant’s explanation of certain events and described his explanation as implausible. In the third paragraph the Tribunal said:
Further, I consider that the applicant’s evidence in relation to his activities following the incident was confused and unpersuasive.
Whilst the Tribunal considered and accepted the fact that the applicant was present at a violent confrontation which resulted in the deaths of 10 people, the Tribunal was not satisfied that there was a real chance that the applicant faces treatment amounting to persecution at the hands of the Pakistani authorities. The Tribunal did go on to consider whether, even if the applicant’s contentions were true, whether it would be possible for him to relocate within Pakistan. At page 91 of the Court book in the final paragraph, the Tribunal member said:
He stated that he would not be able to live elsewhere in Pakistan because someone might tell PPP members in his local area where he was.
The applicant did not provide any other reason for not being able to relocate. The Tribunal did not accept this evidence because the size of Pakistan and the existence of large cities a considerable distance from the applicant’s village meant that the chance that anyone would find out where the applicant was and report this to PPP members in his local area was remote. The Tribunal was not satisfied that there was a real chance that the applicant faced persecution at the hands of local PPP members.
That being the case, my own review of the decision by the Refugee Review Tribunal does not show any jurisdictional error. The Tribunal’s decision was against the applicant on the basis that the Tribunal just did not accept the credibility of his evidence. The Tribunal was not satisfied that he had made out his case.
The evaluation of the facts and the merits of the case is a decision for the Tribunal, not for the Court conducting a judicial review. It follows, then, that the matter before the Court is a privative clause decision. As such, it is caught by s.477(1A) in that the application was not made within 28 days of the applicant being notified of that decision.
Accordingly, the Court has no jurisdiction to entertain the application and it must be dismissed.
I make the orders set out in the schedule.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 20 December 2004