SZDXZ v Minister for Immigration
[2006] FMCA 971
•7 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDXZ & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 971 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – information provided to Department prior to application to Tribunal – part of reason for decision – no invitation to comment under s.424A – jurisdictional error – discretion to refuse relief for unwarrantable delay – decision set aside. |
| Migration Act 1958 (Cth), ss. 417, 424A, 429 |
| Applicants M160/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 195 Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 SZHFW v Minister for Immigration & Anor [2006] FMCA 86 |
| Applicants: | SZDXZ & ORS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1963 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing dates: | 15 & 16 June 2005 |
| Heard at: | Sydney |
| Delivered at: | Canberra |
| Delivered on: | 7 July 2006 |
REPRESENTATION
| Counsel for the Applicants: | Mr N Dobbie |
| Solicitors for the Applicants: | Parish Patience Immigration Lawyers |
| Counsel for the First Respondent: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The decision of the second respondent of 14 March 2004 and handed down on 30 March 2004 be set aside.
The applications for protection visas be remitted to the second respondent for determination according to law.
The first respondent pay the applicants’ costs.
The first and second applicants pay the first respondent’s costs thrown away due to the late filing of an amended application fixed in the sum of $2,700
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1963 of 2004
| SZDXZ & ORS |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The four applicants who are citizens of Fiji have sought protection visas. They are husband and wife and their two sons. They claim that as Indo-Fijians they would suffer persecution from indigenous Fijians if they returned to Fiji. Only the husband has made substantive claims. The wife and two sons seek protection as members of his family.
Their applications for protection visas were refused by the Refugee Review Tribunal in March 2000. They now seek judicial review of that decision.
As the husband is the only person to have made substantive claims, I will refer to him in these reasons as the applicant.
Background
The husband and wife arrived in Australia on 9 May 1999. The husband then departed Australia and returned on 19 June 1999 accompanied by the two sons.
On 15 July 1999 they applied for protection visas. They were refused on 20 October 1999 by a delegate of the Minister. This refusal was affirmed by the Tribunal on review in a decision handed down on
30 March 2000. Both the husband and wife gave evidence at a hearing on 8 March 2000. The family applied for judicial review in this Court on 25 June 2004.
Claims before the Department and the Tribunal
The applicant’s evidence in summary is:
·there had been no incidents prior to the death of the applicant’s father in September 1998
·following the death the applicant owned land with his brother which indigenous Fijians wanted to take. The brother lived in a separate house on the same land
·from December 1998 the applicant received threatening telephone calls from indigenous Fijians who knew his father had died telling him to leave his house and get off the land
·the applicant’s wife was threatened with rape while he was at work
·indigenous Fijians became upset and began harassing Indo-Fijians during the May 1999 elections
·the applicant worked at night. He took his family to work with him to protect them
·the police took no action when the threatening telephone calls were reported
·five indigenous Fijians broke into his brother’s house in February 1999, threatened him with death and stole property to the value of $5,000. There has been no result from a police investigation
·the same indigenous Fijians made further phone threats when the applicant returned to Fiji in May 1999 for 12 days
·the applicant had a falling out with his brother after his father’s death. The brother wanted him off the land so he could renegotiate a lease with the indigenous owners
·the brother took all of the applicant’s property from his house and sold it after the applicant came to Australia
·the applicant could not live elsewhere in Fiji as the price of land was very high and the people who had threatened his family would locate them and continue their threats.
Tribunal consideration
A Tribunal hearing was held on 8 March 2000. Both the husband and wife attended and gave evidence.
The Tribunal found:
·the brother was assaulted but the incident was no more than a “random criminal act”
·he was not targeted for any Convention reason but because he was perceived to be suitably wealthy
·the robbery was not connected with any campaign of harassment to drive the family off the land
·any phone threats and harassment from indigenous Fijians were motivated by “opportunism” to persuade the applicant to leave the land and not for any Convention reason
·effective state protection was available from the police
·the Tribunal was not satisfied that protection from the police would not have been available to the applicant and his family had there been a real chance that they would suffer serious harm
·the applicant and his brother had a family dispute over the land unrelated to the Refugees Convention
·although the applicant genuinely held fears, especially for the safety of his wife, he was not subject to persecution under the Convention
·there was no real chance he will suffer Convention persecution in the future.
Issues
The applicant’s amended application of 6 June 2005 sets out seven grounds of which two are not pressed. The remaining issues raised by the applicant and the Minister are:
·did the Tribunal fail to consider a claim by the applicant of his actual or imputed membership of certain particular social groups
·did the Tribunal misinterpret or misapply the law on (i) effective state protection and (ii) particular social groups
·did the Tribunal fail to accord procedural fairness by misstating the effect of independent country information to the applicants at the hearing and thereby misleading them
·did the Tribunal fail to give the applicants a private hearing as required under s.429 of the Migration Act 1958
·did the Tribunal breach its obligation under s.424A of the Act to provide certain information in writing to the applicants
·if there has been jurisdictional error, should the Court exercise its discretion to refuse relief because of the unwarrantable delay by the applicants in applying for judicial review.
Consideration
Section 424A: invitation to comment on information given to Department
All the grounds were fully argued at the hearing. However, I propose to deal this ground first.
Although the hearing was after the High Court decision in SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, it was prior to the important Full Federal Court decision in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 on section 424A.
Section 424A is in the following terms:
(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies – by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information.
Allsop J relevantly considered SAAP in SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200 at [14] - [15]:
14 In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 a majority of the High Court said that any failure whatever to comply with s 424A of the Migration Act 1958 (Cth) (irrespective of any conclusion one could reach from the surrounding circumstances that the applicant had been accorded substantive procedural fairness) amounted to jurisdictional error vitiating the decision.
15 SAAP must be read together with Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 in which it was held that the reference in s 424A(3)(b) to the information "that the applicant gave for the purposes of the application" was a reference to the information given by the "applicant" for the purpose of the "application" for review: that is, to the Tribunal. Thus, s 424A(3)(b) does not encompass information provided to the Department or the delegate by the person who subsequently becomes the applicant to the Tribunal for review.
SZEEU affirmed Al Shamry. Thus a duty can arise under section 424A(1) where particular information is provided by the applicant prior to his application to the Tribunal.
As a result of SAAP, Al Shamry and SZEEU it is necessary to consider whether the Tribunal breached s.424A in respect of information it received by way of the Department’s file.
The applicant contended that the Tribunal breached s.424A by failing to give the applicants in writing particulars of the press report entitled “Rampaging thugs leave family in terror”. This report was given to the Department as an attachment to the original protection visa application. It can be found at Court Book 27. The departmental file was forwarded to the Tribunal.
The information contained in this press report includes:
·five men attacked the applicant’s brother armed with cane knives and a pinch bar
·they broke into the house and threatened the family
·they made off with close to $5,000 worth of assorted items
·the applicant’s brother suffered multiple injuries
·the robbers threatened to kill the family
·the applicant feared similar future attacks if police did not step up future patrols
·police were investigating.
The Minister says that the information that formed part of the Tribunal’s reasons “was information that the persons who assaulted the brother in February 1999 stole items of financial value (including jewellery and money).” This information was adduced at the hearing in oral evidence given by the applicant. It therefore falls within the exception in s.424A(3)(b).
The relevant part of the Tribunal’s reasons is found at Court Book 92 -93:
The Tribunal accepts that the applicant husband’s brother was robbed and assaulted in his home in February 1999. It is not satisfied, however, that this incident represents anything more than a random criminal act, for which the applicant husband’s brother was not targeted for any of the Convention reasons, but because he was perceived to be suitably wealthy. According to the press report, the robbers netted goods worth $5000. This would seem to be sufficient reason to motivate a robbery. This fact, taken together with the applicant husband’s evidence that his brother was negotiating with the landowners, the Tribunal is not persuaded that this robbery was connected with any campaign of harassment directed at driving the family off the land. (emphasis added)
In my view the Minister’s submission is only partly correct. That the stolen goods were of considerable value and their worth of $5,000 was central to the Tribunal’s finding that the robbery was a random criminal act and not for Convention reasons. This the Tribunal said was the motivation for the robbery.
I can find nothing in the transcript of the Tribunal hearing which suggests the items stolen were of significant financial value. There is certainly no mention of $5,000. The applicant did tell the Tribunal they “took all the jewellery and the money”.
In my view the source of this information for the Tribunal is clearly the press report – as the Tribunal itself says – and to a lesser extent the applicant’s written statement to the Department.
At [18] in SZECF Allsop J said three considerations arise in a case such as this:
| (a) | whether there is "any information" for the purposes of s 424A(1)(a); |
| (b) | if so, whether it can be said to be information that the Tribunal considered would be the reason or a part of the reason for affirming the decision under review; and |
| (c) | whether in the light of any questioning about the earlier statement the information can be said to have been given for the purpose of the Tribunal review application. |
In my view:
·the information is that the goods were of significant value and worth $5,000
·the Tribunal did consider this to be part of the reason for affirming the decision under review
·the information was not given for the purpose of the Tribunal review application.
This information was not put to the applicant in writing following the mandatory procedure under s.424A. The Tribunal therefore fell into jurisdictional error.
In view of my findings on this issue I do not propose to consider the other two s.424A grounds nor the further grounds advanced by the applicant. Suffice it to say that, arguably apart from the particular social group ground, I do not think they have any merit. However, it is not necessary to make findings on them.
Unwarrantable delay
The question arises whether there is any reason to withhold discretionary relief. One such reason would be unwarrantable delay (see SAAP at [84], [174] and [211]).
The Tribunal decision was made in March 2000. The application to this Court was not filed until four years later in June 2004.
The applicant sought to explain his delay by an affidavit of 7 June 2005:
·he joined a class action run by Coelho and Coelho, but was advised in March 2001 that this was unsuccessful
·he then again saw his lawyers and joined a second class action run by Adrian Joel
·he was notified in October 2002 that this was successful for the “leaders”
·his lawyers did not pursue a specific case for him based on the class action win for the “leaders”
·he made an application to the Minister under section 417 in June 2003
·this was rejected in May 2004.
The Minister submits that the Court should exercise its discretion to refuse relief:
·the applicant has not adequately explained the delay
·being a member of a prior class action which did not assert the s.424A ground is not a satisfactory explanation
·while the applicant’s evidence in a sense explains the delay, it does not explain why this issue could not have been raised in the earlier proceedings
·an application under s.417 gives rise to the inference that the applicants accepted the validity, if not the correctness on the merits, of the Tribunal decision.
Smith FM sets out the relevant principles governing refusal of relief on grounds of delay in SZHFW v Minister for Immigration & Anor [2006] FMCA 86 at [49]ff. In my view the applicant has not been unacceptably slow in asserting his rights and does not seek relief in trivial circumstances or for collateral motives. I am also conscious of the public interest in finality of litigation, but also the public interest in “vindicating the public law of the Commonwealth” (Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [53], [148-149]).
Has he waived his rights by making a section 417 application? This does not automatically follow (Applicants M160/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 195). In this case the applicant has never accepted the decision on its merits. It is less clear whether he accepted the validity of the Tribunal decision.
On balance, I find that the applicant has put forward an acceptable explanation for his delay. I am persuaded that this is not an appropriate case in which to refuse relief on discretionary grounds.
Conclusions
Following the reasoning in SAAP, Al Shamry and SZEEU I am satisfied that the Tribunal committed jurisdictional error by breaching s.424A in relation to the newspaper information provided by the applicant to the Department with his protection visa application.
For the reasons given above I decline to refuse relief because of the applicant’s delay in commencing these proceedings.
The decision must be set aside and the first respondent pay the applicant’s costs. As agreed at the hearing the first and second applicants must pay the first respondent’s costs thrown away due to the late filing of an amended application in the sum of $2,700.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Natasha Werner
Date: 7 July 2006
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