SZELK v Minister for Immigration
[2005] FMCA 674
•5 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZELK v MINISTER FOR IMMIGRATION | [2005] FMCA 674 |
| MIGRATION – Visa – protection (class XA) visa – Refugee 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 India – claim of well-founded fear of persecution on the grounds of religion, race and politics – applicant is a Hindu. PRACTICE & PROCEDURE – Notice of Objection to competency – privative clause decision – where application filed more than 28 days after the applicant was notified of the decision. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.474, 477 |
| Plaintiff S157 of 2002 v Commonwealth (2003) 211 CLR 476 Randhawa v Minister for Immigration & Multicultural & Indigenous Affairs (1994) 52 FCR 437 Re McBain ex parte Australian Catholic Bishops Conference [2002] HCA 16 Re Refugee Review Tribunal ex parteAala [2000] HCA 57 R v Aston University senate ex parte Roffey & Anor (1969) 2 QB 538 SZAJA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 73 |
| Applicant: | SZELK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2908 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 May 2005 |
| Date of Last Submission: | 5 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 5 May 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr Wigney |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That an order in the form of Certiorari issue bringing into court to quash the decision of a delegate of the Respondent Minister made
23 October 2003.
That an order in the form of Mandamus issue requiring the delegate of the Respondent to redetermine the Applicant’s application according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2908 of 2004
| SZELK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of a delegate of the Minister. The respondent has filed a notice of objection to competency and it is without doubt that the application has been filed more than
28 days after notification as set out in section 477(1)(a) of the Migration Act.
It is of course the situation that the Federal Magistrates Court does not have jurisdiction in relation to a primary decision which is one which is one defined by subsection 476(6) of the Migration Act as meaning a privative clause decision as set out under section 474.
As Mr Wigney of counsel points out in his submission, the only basis upon which the Court could exercise jurisdiction in this matter is if the applicant were to establish that the decision of the delegate of the Minister involved a jurisdictional error. If the delegate did make a jurisdictional error then the decision would not be a privative clause decision for the purposes of either sections 476 or 477(1)(a) of the Migration Act and the authority for this is Plaintiff S157 of 2002 v Commonwealth (2003) 211 CLR 476.
The applicant has filed an amended application and some final submissions. The situation in this case is different from many applications in that review is sought of the decision of the delegate of the Minister to refuse the applicant a protection visa. The reason for this is that the applicant sought a review from the Refugee Review Tribunal but the application was out of time.
I will deal with the issue of the application of review being out of time in due course but I note, as counsel for the respondent correctly pointed out, that a review of the decision of the tribunal that it did not have jurisdiction or that there is not a valid application for review is not challenged.
What the applicant did do was erroneously seek to make a submission to the Minister under the provisions of section 417 of the Migration Act. Regrettably, as was pointed out to the applicant by a letter from the Department dated 17 August, the Minister's power under section 417 is only available if the Refugee Review Tribunal has made a decision under section 415 of the Act.
The Refugee Review Tribunal did not make that decision concerning his case because the application for review was lodged outside the period allowed for lawful lodgement and was not accepted by the RRT. There is no capacity to waive the statutory time limit. Thus as there has been no decision of the tribunal under section 415, the power under section 417 is not available.
Mr Wigney of counsel for the respondent points out that even if the Court were disposed to find that there had been a jurisdictional error, that the Court should not exercise its discretion to grant relief on the basis of delay in seeking that relief and he referred me to a decision by my colleague Federal Magistrate Driver in SZAJA v The Minister for Immigration [2004] FMCA 73.
The discretionary nature of the writ of mandamus is covered by His Honour in paragraphs 17 to 21 of the decision in SZAJA and, with great respect to His Honour, I found the exposition of the law there extremely helpful.
The circumstances of this matter insofar as they are relevant is that the applicant is a citizen of India. He is a follower of the Hindu religion. He hails from the Hyderabad area in India. He first arrived in Australia in 1997. He did not however apply for a protection visa as opposed to any other visa until 29 September 2003. He set out in his application that he had originally left India to study a diploma in business management but he had acquired a fear of persecution and did not wish to return to Hyderabad.
As set out on page 18 of the Court book, he said that he had been informed by friends and relatives that there is a risk in India for him if he were to return. There has always been a bitter rift between major races in India, the Muslims and Hindus have always fought a religious battle. He went on to say:
I am told that my parents have gone away from Hyderabad to Bombay and are still settled there in a new place. I have a girlfriend in India and in my district who I would marry if I returned to Hyderabad. She is a Muslim and I think the religious aspect of the relationship will not eventuate in a legal marriage with my fiancée. I will give the letters and photographs of my girlfriend later.
He then goes on to refer to a radical party, being the Shiv Sena Party. He sets out his fear that if he returned he might be harmed. Page 19 of the Court book he refers to the radical political group associated with Shiv Sena. He says:
Radical Muslims who even are in a minority in Hyderabad are very dangerous and are terrorists. Due to my acquaintance with this Muslim girl I think some Muslims will injure me.
He sets out in question 43 that he has acquired information from relatives and friends to whom he has spoken on the telephone that there would be a danger to him on his return.
The delegate of the Minister refused the application on
23 October 2003. The delegate pointed out that the applicant had first arrived in Australia on a student visa, left Australia in October 2000 and re‑entered in February 2001, applied for the protection visa on
29 September 2003. The delegate said that the applicant seems to fear persecution on return to India for reasons of his religion.
Paragraph 5.1.3 the delegate said:
He states that his friends and relatives in India have advised him not to return as he faces a risk of harm from Muslims and also from radical Hindu parties such as the Shiv Sena party. He claims that the police are corrupt and will not protect him."
The delegate said that he was unable to accept the applicant faced a real chance of persecution if he were to return to India. On page 42 of the Court book at paragraph 5.2.4 the delegate says:
The applicant claims that he faces harm from Muslims and from Hindu radical parties. His claims are very vague, generalised and lacking in detail. There is no evidence to indicate that he has faced such harm in the past and no evidence to explain why he would be particularly and specifically targeted upon return. The applicant has also returned to India for a visit in the recent past without any adverse consequences. I have concerns in relation to the credibility of the applicant's claims as they lack detail and therefore find them to be unsubstantiated assertions.
At paragraph 5.2.6 the delegate says:
Furthermore I also find that if the applicant felt unsafe returning to his home area he could reasonably be expected to relocate to another part of the vast country and live in safety.
The applicant in his amended application filed on 25 November 2004 seeks orders for certiorari prohibition and mandamus. He sets out the grounds of his application as the following:
1. The respondent's delegate made the jurisdictional error in not taking relevant considerations into account.
The particulars of this applicant's intention to marry his Muslim girlfriend which he said was not considered by the delegate and he sets out matters which support that. The second ground:
The delegate made a jurisdictional error in failing to consider whether myself and my future wife could safely relocate in India.
The applicant refers to parts of the delegate's decision. The third claim is:
3. The delegate made jurisdictional error by failing to consider further critical issues.
He sets out (a) whether the harm or mistreatment feared by the applicant is of a nature that represents persecution; (b) whether the persecution is a prevention ground and whether that ground is an essential and significant reason for the persecution. The applicant makes no claim of fraud or bad faith.
I would indicate at this stage that I am not satisfied that the applicant in respect of ground number 3 about jurisdictional error by failing to consider further critical issues has established his case. To my mind the thrust of the applicant's application relates to his grounds one and two. He has made final submissions which were filed in the Court on
2 May.
In that he suggested that the ground of jurisdictional error in not taking relevant considerations into account needed to be refined to "not dealing with relevant claims of the applicant" rather than "not taking relevant considerations into account". In my view that is a distinction without a difference.
He refers to parts of the delegate's decision which is of course his claim. He also in his submission refers to jurisdictional error in failing to consider whether he and his future wife could safely relocate in India. He says that the delegate failed to consider the issue of a mixed marriage and whether a mixed couple consisting of a Hindu and a Muslim can safely be able to relocate in India where all throughout the country the Muslim and Hindu race conflict issue is significant during a time of the delegate's decision and the rule in India.
He refers to the decision of Black CJ in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] 52 FCR 437 at page 442 where His Honour said:
Given the humanitarian aims of the convention this question was not to be approached in a narrow way and in her further analysis the delegate correctly went on to ask not merely whether the appellant could relocate to another area in India or whether he could reasonably be expected to do so.
The further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person's fear of persecution in relation to that country will remain well founded with respect to the country as a whole if, as a practical matter, the part of the country in which the protection is available is not reasonably accessible for that person.
In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered. Moreover the range of the realities that may need to be considered on the issue of the reasonableness of relocation extends beyond physical or financial barriers preventing an applicant with refugee status from reaching safety within the country of nationality.
If it is not reasonable in the circumstances to expect a person who has a well founded fear of persecution in relation to the part of the country from which he or she has fled to relocate to another part of the country of nationality, it may be said that in the relevant sense the person's fear of persecution in relation to that country as a whole is well founded.
For the respondent, Mr Wigney of counsel has pointed out the Court should not read a delegate's decision as if it were a judgment, in other words in the same detail and with the same attention to the wording as so often is the case in a decision of the decision maker in felicitous wording is not to be regarded with a narrow view.
As I said, he went on to refer to the question of exercising a discretion.
He conceded that the delegate had dealt with the issue of the applicant's religion and religious differences in India although he had not specifically referred to the question of the applicant's wish to marry a Muslim girl. He pointed out that it was relevant that the applicant had first entered Australia on a student visa in 1997 and had not applied for a protection visa until 2003.
In my view the applicant's desire to marry his Muslim girlfriend is a significant factor. It is such a factor, a factor of such significance that it takes a fear of violence or intimidation between Muslims and Hindus to a completely different level. It is not just every day racial or religious violence. It is violence which would be directed at the applicant, presumably his future wife, specifically because of their step in marrying each other.
The reality would appear to be that there is no evidence of the desire or the will to get married in 1997 when the applicant arrived here legitimately on a student visa. There is however the fact that his girlfriend is in Hyderabad. The applicant is now saying, as in his application that he wishes to marry the girlfriend who is a Muslim and he fears specific persecution because of that fact.
It is that fact that has not been considered by the delegate.
The delegate refers to paragraph 5.2.4 to the fact that:
The applicant claims that he faces harm from Muslims and from Hindu radical parties. His claims are very vague, generalised and lacking in detail.
One could say about that that this ignores the fact that he is making a specific claim about a desire to marry a Muslim woman. This is not vague, it is not generalised and it is not lacking in detail. The delegate goes on to say:
There is no evidence to indicate that he has faced such harm in the past and no evidence to explain why he would be particularly and specifically targeted upon return. The applicant has also returned to India in the recent past without any adverse consequences.
The answer to that appears to me to indicate that the delegate has given no consideration to the specific fact of the applicant wishing to marry the girlfriend who is a Muslim. There is no evidence that the applicant has faced this harm in the past because quite clearly he has not married a Muslim woman in the past. It is incorrect to say there is no evidence to explain why he would be particularly and specifically targeted upon return.
The applicant did provide that evidence. He said he would be particularly and specifically targeted upon return if he were to marry a Muslim woman, which is what he and the girlfriend wish to do.
In my view, the delegate has completely ignored a relevant consideration. It has just not been taken into consideration at all.
There is an ocean of difference between fearing generalised harm from Muslims because one is a Hindu on the one hand and fearing specifically targeted harm from either Muslims or radical Hindus such as the Shiv Sena Party because one is a Hindu who has married a Muslim.
The applicant also, as I said, takes issue with the finding at paragraph 5.2.6 of the delegate's decision:
Furthermore I also find that if the applicant felt unsafe to return to his home area he could reasonably be expected to relocate to another part of the vast country and live in safety."
There appears to be no evidence in support of the delegate's conclusion that the applicant could reasonably be expected to relocate to another part of India. Again on page 18 of the Court book the applicant refers at about point 2 to the fact that his parents had gone away from Hyderabad to Bombay and are still settled down in the new place. Whilst it may well be argued that it would be possible for the applicant to relocate to Bombay, the fundamental point of his intention to marry a Muslim woman differentiates his situation from that of his parents.
There is no evidence that his parents form a mixed marriage, they are married to each other. It is only the applicant who intends to marry a Muslim woman. It does not follow that a Hindu married to a Muslim woman in Hyderabad could expect reasonably to move to another part of India. There is just no evidence at all upon which the delegate could make a finding that the applicant would reasonably be expected to relocate to another part of India, whether that country is vast or not.
I must then turn to the issue of whether the Court should exercise its discretion to grant relief, as Mr Wigney of counsel quite correctly pointed out in his submission. As I said, I have been referred to the decision of Driver FM in SZAJA v Minister for Immigration & Multicultural & Indigenous Affairs (supra). The discretionary nature of the prerogative writ of mandamus is referred to by His Honour at paragraph 17 of his decision. In paragraph 18 His Honour says:
In R v Aston University senate ex parte Roffey & Anor (1969) 2 QB 538 the English High Court is dealing with the issue of delay in relation to prerogative writs. The Court held that there had been a breach of procedural fairness but declined to provide relief. The Court held that inasmuch as prerogative orders were discretionary remedies and should not be available to those who slept upon their rights by the inaction between December 1967 and July 1968 had forfeited any claim to relief.
At paragraph 20 His Honour refers to Australian cases:
I note that the High Court has also considered the discretionary nature of constitutional writs in re Refugee Review Tribunal ex parte Aala [2000] HCA 57. That decision confirms that the constitutional writs of prohibition and mandamus are discretionary and that the discretion may be exercised against an applicant in cases of delay. In that case the High Court found that delay of several months did not disentitle the applicant to relief. I also note that in re McBain ex parte Australian Catholic Bishops Conference [2002] HCA 16 the High Court confirmed the discretionary nature of relief in the form of certiorari."
In the case to which I am referred, SZAJA v Minister for Immigration & Multicultural & Indigenous Affairs (supra), His Honour at paragraph 21 refers to the applicant as having "Sat upon his rights unreasonably for a period of approximately 18 months", and His Honour held that the Court should not then exercise its discretion to grant relief even if jurisdictional error could have been made out.
I am satisfied that the decision of the delegate failing to take into account a relevant consideration, namely the specific fact of the applicant as a Hindu intending to marry a Muslim woman is of such a nature as to constitute a jurisdictional error.
Guided by the decision so helpfully set out in SZAJA I must now decide whether it is appropriate to exercise the Court's discretion to grant relief. The applicant as part of his case filed an affidavit on
23 September 2004. In that affidavit he set out the fact that he received a letter from the Department of Immigration, Multicultural and Indigenous Affairs with a copy of the decision refusing his protection visa.
He said he took this to his migration agent and he said that he would lodge the RRT application for review in early November 2003 within the time limit. The applicant went on to say that he was shocked to hear from the RRT that the review application with the RRT was only lodged on 12 December 2003 but a fully completed application was only received by the RRT on 18 December 2003.
That explains why it was that around 7 July 2004 the applicant received a copy of a decision by the RRT saying that it had no jurisdiction to review the matter as the application was lodged outside the 28 day time limit.
The Refugee Review Tribunal, at page 93 of the Court book said:
The tribunal finds the decision notice was sent within three working days to the applicant's authorised recipient in accordance with sections 494B(4) and 494D of the Act. Therefore the applicant is taken to have received the notice on
3 November 2003. This is so even though the letter sent to the applicant's authorised recipient was returned unclaimed. Therefore the 28 day period within which the review application must be lodged ended on 1 December 2003. The application for review was not received by the tribunal until 12 December 2003 after the prescribed period had expired. The application received on 12 December 2003 was sent by regular post with only the cover page and first page of the application for review completed. The remaining 12 pages were blank. The tribunal contacted the authorised recipient on 15 December 2003 advising of this fact and requested a complete application for review be sent to the tribunal. A complete application for review sent by registered post was received by the tribunal on 18 December 2003."
The tribunal's decision makes it clear that the application for review was received out of time. It does not contradict the applicant's claim that he instructed his migration agents to lodge a review, an application for review in early November 2003.
There is no explanation given as to why the letter sent by the Refugee Review Tribunal to the authorised recipient, being the migration agent, was originally returned unclaimed. There does not appear to me to be evidence of an unreasonable delay by the applicant in seeking a review of the decision of the RRT.
The next point of course is whether there has been unreasonable delay in bringing this application before the Court. Certainly it was not until 26 July 2004 that the applicant sought assistance from the Minister under section 417 of the Migration Act. It was in the Minister's letter of 17 August that it was made clear to the applicant that this avenue was not open to him as there had been no decision under section 415. What then happened is that the applicant commenced proceedings in this Court by filing an application on 23 September 2004.
The Court must take into account the fact that the applicant is not legally represented, although he did have some assistance from a friend in preparing the documentation before me today. The Court must take into account the fact that the applicant is not a citizen of this country and English is not his first language, although his fluency in English today I should say is considerably better than that of most applicants who appear before me in applications for a protection visa.
Taking the circumstances into account; noting the decision of the High Court in England in R v Aston University Senate(supra) in refusing relief to applicants who slept on their rights between December 1967 and July 1968; noting the decision in SZAJA v Minister for Immigration & Multicultural & Indigenous Affairs (supra), where His Honour Federal Magistrate Driver declined to exercise the Court's discretion to grant relief to an applicant who sat upon his rights unreasonably for a period of approximately 18 months; but noting also the decision of the High Court in re Refugee Review Tribunal ex parte Aala (supra) that a delay of several months did not disentitle the applicant to relief, I am not of a view that there has been demonstrated an unreasonable period of delay by the applicant sufficient to disentitle him to the exercise of the Court's discretion to grant relief.
In my view it is appropriate, taking all those matters into account and noting the explanations given by the applicant as to why he sought relief from the Minister, why he did not originally bring proceedings in the Federal Court, I propose to make the orders sought.
The applicant is not legally represented, so of course the question of costs does not arise.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 20 May 2005
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