SZFDM v Minister for Immigration
[2005] FMCA 924
•17 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFDM v MINISTER FOR IMMIGRATION | [2005] FMCA 924 |
| 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 is a citizen of Afghanistan – where the applicant was granted a temporary protection visa on 4 April 2000 – where application for a permanent protection visa was refused – where Refugee Review Tribunal found that the circumstances in connection with which the applicant was recognised as a refugee have ceased to exist. PRACTICE & PROCEDURE – Competency – Notice of objection to competency – application lodged out of time – where applicant made a request to the Minister under s.417 of Migration Act 1958 – having taken the course of making an application under s.417 and awaiting a decision in respect of that application, the applicant must live with the consequences of the delay. |
| Judiciary Act 1903 (Cth), s. 39B Migration Act 1958 (Cth), ss. 417, 475A, 477 |
| VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 186 Daniel v Minister for Immigration & Multicultural & Indigenous Affairs & Ors (2004) 205 ALR 198 NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1373 |
| Applicant: | SZFDM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 3509 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 June 2005 |
| Date of Last Submission: | 17 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 17 June 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr Lloyd |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The application is not competent as the Court has no jurisdiction to review the decision.
The Applicant is to pay the Respondent's costs fixed in the sum of $6,000.00.
That the operation of these orders is stayed for a period of seven (7) days from the date of this decision.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3509 of 2004
| SZFDM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for a review of a decision of the Refugee Review Tribunal. The decision was made on 23 February 2004 and handed down on 16 March 2004. The decision of the Tribunal was to affirm the decision of the delegate of the Minister not to grant a protection visa to the applicant.
The applicant is a citizen of Afghanistan. He arrived in this country and applied for a protection visa. He was granted a subclass 785 temporary protection visa on 4 April 2000. He applied for a permanent protection (class XA) visa on 7 April 2000. On 25 September 2003 a delegate of the Minister refused the application. On 7 October 2003 he applied for a review of this decision by the Refugee Review Tribunal. On 13 February 2004 the applicant attended a hearing of the Refugee Review Tribunal to give oral evidence. He was assisted by an interpreter in the Dari language and was represented by a migration agent.
The applicant gave evidence that he had served in the Army in Afghanistan after the communist coup. He left Afghanistan after the Taliban took over his local area. This was after he had finished his military service. He made his way to Pakistan and eventually he arrived in Australia. He applied for a protection visa, saying that he feared that he would be harmed by the Taliban if he should return to Afghanistan because he was a member of the Hazara minority and a Shia Muslim. He said that he would be identified as a communist because he had done his military service under the communist regime.
The applicant has applied for a permanent protection visa. He claims that he still fears persecution for the same reasons as before.
A delegate of the Minister refused that application. He sought a review of this decision by the Refugee Review Tribunal and he appeared before the Tribunal to give oral evidence. The applicant relied on the written record of an interview conducted shortly after his arrival in Australia and a variety of other documents.
The Refugee Review Tribunal was not satisfied that the applicant has a well founded fear of being persecuted for a Convention reason if he returns to Afghanistan now or in the reasonably foreseeable future.
The Tribunal considered as a first question whether in accordance with Article 1C(5) of the Convention the applicant could no longer continue to refuse to avail himself of the protection of his country of nationality because the circumstances in connection with which he was recognised as a refugee had ceased to exist. The Tribunal noted at page 180 of the Court Book that the Taliban had been removed from power in Afghanistan by mid November 2001. The Tribunal accepted that the Taliban, as far as certain remnants were concerned, remained in Afghanistan but the Taliban no longer existed as a political movement. The Tribunal put that to the applicant and he agreed but he said that they still harmed people on the roads.
The Tribunal found that the Taliban is no longer in a position to massacre Hazaras or Shia Muslims in the manner referred to by the delegate of the Minister when granting the applicant's temporary protection visa. The Tribunal did not accept on the evidence that there was a real chance of the Taliban emerging as a viable political movement in Afghanistan in the reasonably foreseeable future.
The Tribunal did not accept on the evidence before it that the Taliban remnants remaining in Afghanistan were targeting Hazaras or Shia Muslims. The Tribunal found that because the circumstances in connection with which the applicant was recognised as a refugee had ceased to exist, he could no longer continue to refuse to avail himself of the protection of his country of nationality for those reasons.
The Tribunal found, therefore, that Article 1C(5) of the Convention applies to the applicant.
The Tribunal went on to find that even if it were wrong in its conclusion about the application of Article 1C(5), it would still need to consider whether at the date of the decision the applicant had a well founded fear of being persecuted. This well founded fear of persecution would need to be on the basis of the circumstances in connection with which the applicant was originally recognised as a refugee if he were to return to Afghanistan now. The Tribunal noted at page 181 of the Court Book that that question arose from the operation of subsections 36(6) and 36(4) of the Migration Act. The Tribunal found that as a national of Afghanistan the applicant is now able to avail himself of a right to enter and live in that country. The Tribunal found that the applicant no longer had a well founded fear of being persecuted on the basis of the circumstances in connection with which he was originally recognised as a refugee.
The applicant said that he continued to fear that if he returned to Afghanistan he would be persecuted because he was a Hazara and a Shia Muslim and because he would be accused of being a communist. In reply to that, the Tribunal said that it had put to the applicant that in his home area the immediate surroundings were mostly inhabited by Hazaras. The Tribunal also said that even though the applicant's home area was encircled by Pashtuns, the United Nations High Commission for Refugees has advised that no reports of any ill treatment of the inhabitants of the applicant's area by other ethnic groups had been brought to the attention of its office.
The Tribunal, in short, did not accept that the applicant had a well founded fear of being persecuted because of any perception that he was a communist or because of any personal animosity that anyone might bear towards him. As such, the Tribunal was not satisfied that the applicant's claim should be successful.
The applicant has made an application for a review of that decision.
In his application he set out two grounds. First, that the Tribunal exceeded its jurisdiction in making the decision to affirm the decision not to grant the applicant a protection visa. And second, that it had erred in law by doing so, in other words, by making that decision.
The applicant gave four separate particulars in support of those grounds. First, he said that the Tribunal identified the wrong issues and asked itself the wrong questions in relation to the application of the cessation clause in Article 1C(5) of the Refugees Convention. Second, that the Tribunal had failed to consider or consider properly, whether the government of Afghanistan was able to provide protection to the applicant against threats of persecution by non-state agents, including the Taliban. Third, that the Tribunal misapplied the law in finding that subsection 36(3) of the Migration Act applied. And finally, that the Tribunal ignored relevant material in relation to the applicant's claims of persecution.
The respondent Minister has lodged a notice of objection to competency. This notice claims that the Court has no jurisdiction to review the decision made by the Refugee Review Tribunal on
23 February 2004. The reason for this is that the applicant had not complied with s.477(1A). The respondent submitted that the application had been lodged out of time as provided by s.477(1A) of the Migration Act. The applicant [sic] says that the law provides that the application must be made within 28 days of the notification of the Tribunal decision.
The respondent also filed an outline of submissions. The respondent's submission sets out that the Tribunal's approach to subsection 36(6) of the Migration Act and to Article 1C(5) of the Refugees Convention had been upheld by courts on a number of occasions. He referred the Court to the decision of NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1373. The respondent says that the applicant's claim that he has changed since living in Australia and no longer has the same views that he once held does not show any jurisdictional error in the Tribunal's approach. The respondent says that the applicant's claim that he feared persecution because he was a supporter of one or more Hazara political parties is not supported by any evidence.
The respondent also said that there was not any evidence of any error in interpretation and even if there had been, it would not be a material matter capable of constituting jurisdictional error. The respondent also says that the applicant's claim that the Tribunal had failed to deal with his claim to the extent that he would be limited to living in his home area had not in fact been subject to that limitation.
In a later submission, counsel for the respondent relied on two decisions. The first one is VUAD of 2003 v Minister for Immigration & multicultural & Indigenous Affairs [2004] FCAFC 186, the second one is Daniel v Minister for Immigration & Multicultural & Indigenous Affairs & Ors (2004) 205 ALR 198.
The applicant attended the hearing by way of telephone link up from Western Australia. In the hearing he said that he had a fear of certain groups and that there was no protection available outside Kabul.
He said that the Taliban were no longer in power but that they used a different method of persecuting people. The applicant said that there are still acts of torture being committed by the Taliban and other groups. He said he had obtained information about the activities of the Taliban through some of his friends in Sydney who have contacts in Afghanistan.
The applicant says that he was not given the chance to say all that he wanted to say at the hearing. He asked why he was asked why it took from March to November in 2004 to make an application to the Court. The applicant told the Court that the adviser that he had acting for him at the time promised to help him, that as soon as his application was rejected, the migration adviser said that he would write to the Minister. The applicant also said that the migration adviser said to him:
Don't go to the Court, nobody will listen to you.
The applicant says that the migration agent told him that it was better for him to wait until he could get a response from the Minister.
The applicant also made the point that his life and his death were in the Court's hands. The applicant said that the Tribunal had made a mistake by not giving him an opportunity to talk about his case. He said that even though the Tribunal had asked him about his case, they asked him about other things. He did not ask for a transcript and thought that his migration adviser was assisting him. He says that his application to the Court was typed by a friend of his.
The counsel for the respondent, Mr Lloyd, also addressed the Court. He pointed out that some of the matters raised by the applicant at the hearing had not been previously raised, they were new matters.
He also submitted that the applicant's reasons for the delay in commencing these proceedings would not assist him.
In taking these matters into account I note that the Court does not have the power to review any finding on the facts. The Tribunal's decision relies very much on the facts. It appears to me, with respect, that the Tribunal's decision reflects a competent knowledge of the law in this area. It appears to me too that the basis of the decision relies on matters of fact and that those facts had been taken into account by the decision maker.
Turning to the question of the delay in commencing the proceedings, the situation was that the applicant had been advised by his adviser that he should make an approach to the Minister under s.417 of the Migration Act rather than commence Court proceedings. The difficulty with this approach is that if the representation to the Minister fails, the applicant is then left in the position where the applicant cannot seek relief from the Court because the application will be out of time.
If the applicant wishes to challenge a decision in the Federal Court or the Federal Magistrates Court, and if it is a privative clause decision, the application must be filed within 28 days.
The applicant's migration adviser should have known of that important section.
In the decision of VUAD of 2003 v Minister For Immigration & Multicultural & Indigenous Affairs (supra) the Court said that, at paragraph 10:
Having taken the course of making an application under s. 417 and awaiting a decision in respect of that application, the appellant must live with the consequences of the delay that had occurred as a consequence.
The Court also said that as a matter of law there is no reason why the making of an application to the Minister to exercise discretion under
s.417 of the Act should hold up the filing of an application for judicial review. The Federal Court of Australia took a similar view in
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs & Ors (supra). At paragraph 14 of that decision, when talking about a letter that had been written to the Minister asking the Minister to exercise power under s.417 of the Migration Act, the Court said that the taking of that course of action by the applicant is indicative of a decision by him to abandon any course that he would seek to challenge the decision of the Tribunal on grounds available under the Act. That course of conduct, the Court said, should properly be characterised as an indication by the applicant that he was prepared to accept that the Tribunal's decision was correct and that he did not intend to challenge that decision further in the Court.
In my view, those decisions set out the law as it stands and where an applicant chooses to write to the Minister under s. 417 rather than file an application for review of the Tribunal's decision the applicant should accept the consequences of that decision.
The provisions of s.477 would not apply if the decision under review was not a privative clause decision as set out in s.747 of the Act. If the decision was tainted by jurisdictional error it would not be a privative clause decision. The fact is here that there is no jurisdictional error. There is no bad faith or failure to provide natural justice or breach of procedural fairness. There is no evidence that the Tribunal has acted in excess of its jurisdiction. The evidence, to my mind, shows that the Tribunal did apply the law relating to the cessation clause in Article 1C(5) of the Refugees Convention.
The two grounds for relief set out in the application are in effect the same ground expressed two different ways. There are no grounds for finding that the Tribunal misapplied the law when finding that subsection 36(3) of the Migration Act applied to the situation, and there is no evidence that the Tribunal failed to consider properly whether the government of Afghanistan is able to provide protection to the applicant. The failure of the Tribunal to consider relevant material in respect of the applicant's claims of persecution has not been proved.
My examination of the decision indicates that there is no jurisdictional error. As there is no jurisdictional error the decision is a privative clause. As the decision is a privative clause, s.477(1A) applies. Because the application has been brought out of time, the Court has no jurisdiction to review the decision.
When the matter was before the Court on the hearing date the question of an order for costs if the respondent were successful was raised by Mr Lloyd of counsel. This is a matter where costs follow the event and that the party who is unsuccessful should receive an order to be responsible for the legal costs of the party who is successful.
I note that the applicant is not represented today and that he currently lives in Western Australia. Whilst a transcript of the reasons for decision will be made available as soon as conveniently possible,
I accept the fact that it will take a few days for the decision to be posted to the applicant at his current address in Western Australia. Accordingly, in the interests of justice, I propose to stay the operation of these orders for seven days to allow time for those documents to be sent by post to the applicant in Western Australia. Accordingly I order:
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 30 June 2005
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