SZENN v Minister for Immigration
[2005] FMCA 158
•16 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZENN v MINISTER FOR IMMIGRATION | [2005] FMCA 158 |
| MIGRATION – Visa – protection 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 Turkey – where a person is in immigration detention the respondent has an obligation to see that the person receives necessary medical treatment. |
Migration Act 1958 (Cth), s. 477
Craig v South Australia (1995) 184 CLR 163
Plaintiff S157 of 2002 v The Commonwealth (2003) 211 CLR 476
| Applicant: | SZENN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 3040 of 2004 |
| Delivered on: | 16 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 16 February 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In person (in immigration detention, by video link) |
| Counsel for the Respondent: | Ms Wong |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs in the sum of $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3040 of 2004
| SZENN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
I have considered the application for an adjournment. The Applicant says that he is not ready for this hearing because he needs a lawyer. He has been in detention since 15 September 2004. He does not seem to have taken any steps to obtain legal advice and I believe that there would be sufficient time to do so, even allowing for the fact that he is in detention.
The application for an adjournment is refused. The Application will proceed today.
I have considered the matters before me. The Applicant asks for a review of a decision of the Refugee Review Tribunal. That decision was handed down on 20 June 2003. The Refugee Review Tribunal affirmed the decision of the Minister not to grant a protection visa to the Applicant. He told the court today that, in any event, his visa has now expired. He has been in immigration detention since 15 September 2004. He lodged his application for a review in this court on 8 October 2004. He was already in detention at that stage.
The Applicant says that he did not lodge an application earlier because he was misled. He said he was misled by someone at the Department of Immigration. When he found out that his application before the Refugee Review Tribunal was unsuccessful he received a letter. He said he took that letter to the Department of Immigration. Someone there told him that the letter said he either had to pay $1000.00 or else he would have to leave the country within 28 days.
He paid the $1000.00 in a lump sum.
He said he asked about lodging an appeal. He said he was told by someone at the Department that a form would be sent to his home. No form was received.
He was eventually taken into immigration detention. It was only then that he discovered that no application for review had been filed. He said that what he then did was lodge his application even though he knew it was late.
He asked for an adjournment today in order that he could obtain legal advice. I have refused that application. In my view he has had sufficient time to obtain legal advice. He is not represented by a lawyer today. Because he is not represented that places a strong obligation on the court. The court must look carefully at his application. The court should not take an overly legalistic view of the language that he uses in his application. I note that he has set out nine reasons why he believes that the Refugee Review Tribunal was wrong.
He has said that the Tribunal made its decision in bad faith. He has also said that the Tribunal was biased and had given a decision which was preset in the back of its mind. He has not provided any particulars of that claim.
He said that he wished to rely on an article in a Turkish newspaper. That newspaper article was not written until 2003. The Applicant had already been in Australia since January 2002. I do not see how the newspaper article could have assisted the Applicant in his case before the Refugee Review Tribunal. It appears that the article was not written at the time the Tribunal conducted its hearing.
The Applicant said that he was denied natural justice. The facts do not show any denial of natural justice. The Applicant attended the hearing of the Tribunal and gave evidence. The Tribunal Member asked him a number of questions. The Tribunal gave him an opportunity to answer those questions. It is hard to see how he was denied natural justice.
The Applicant has said that the Tribunal did not observe the Migration Act, properly. He has not given any particulars of that and there is nothing in the facts which shows any breach of the Migration Act. The Applicant has also made four claims in which he says the Tribunal either mixed-up facts, or ignored facts, or did not take matters into account. The Applicant has not particularised those grounds. I am aware that there can be jurisdictional error where a Tribunal fails to take relevant facts into account. It can also be an error where a Tribunal takes irrelevant facts into account. The High Court of Australia has made this point quite clear. I refer to the decision of Craig v South Australia. That decision is reported in (1995) 184 CLR 163. The Applicant has provided no details of those matters.
It appears to me that the Applicant is seeking to have a review of the case on the merits. The fact is that the Applicant gave evidence and the Tribunal did not accept that he had made out his case. Provided that the Tribunal undertakes its task fairly and allows procedural fairness to an Applicant a decision on the facts is purely a matter for the Tribunal. Counsel for the Minister, Ms Wong, has submitted that if the Tribunal has made a jurisdictional error then the time limit for lodging an application, set out in section 477 of the Migration Act, will not apply.
The Applicant has referred to the decision of Plaintiff S157 of 2002 v The Commonwealth (2003) 211 CLR 476. In this case there is nothing to show that the Tribunal has fallen into jurisdictional error. As there is no jurisdictional error the time limit will apply. Again, if there is no jurisdictional error the application cannot succeed.
There is another matter that I should make clear at this stage. The Applicant has told the court that he suffered an injury to his shoulder, this injury happened before he was taken into detention. He has told the court that he has not had any or any proper medical treatment for that injury. If he has an injury and requires medical treatment, then it is up to the Respondent to see that he has medical treatment whilst he remains in detention.
The Applicant has also told the court that he suffers from depression, he has not provided any diagnosis of this but it would not be surprising for a person to suffer from depression if he were being held in immigration detention. I am aware that he has been in detention since 15 September 2004. If he is suffering from depression, then it is up to the Respondent to see that he has treatment for that depression whilst he remains in detention.
It should be clear that people who are held in immigration detention have a right to expect reasonable medical and psychological treatment for any injuries or illnesses from which they suffer. The Applicant has told the court that he has done nothing wrong, he is certainly not accused of having committed any crime, nevertheless, he has been deprived of his liberty by being placed in immigration detention.
People who are held in immigration detention have a right to expect that the Commonwealth of Australia will treat them properly. Being treated properly includes with being provided with appropriate medical attention, common humanity demands no less. I require a transcript of my reasons for this decision. I also require the legal advisers for the Minister to pass on my concerns about the Applicant's physical and mental health to the Department of Immigration and Multicultural and Indigenous Affairs.
I believe that the Department should be made aware that the Applicant says that he requires appropriate treatment and arrangements should be made for him to see a medical practitioner and a psychologist at an early opportunity.
There is an application for an order for costs. The Respondent Minister seeks the sum of $6500.00, but the Applicant says he has no money to pay because he is an inmate in detention. He said that if he was outside a detention centre he would pay those costs. I will make an order that the Applicant is to pay the Respondent's costs in the sum of $6000.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V Lee
Date: 23 February 2005
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