SZFGY v Minister for Immigration
[2005] FMCA 1713
•9 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFGY & ORS v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1713 |
| MIGRATION – Visa – Protection (Class XA) 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 – Applicants are citizens of India – Applicants are husband, wife and adult daughter – relocation issues. PRACTICE & PROCEDURE – Objection to competency – privative clause decision – where application filed more than 28 days after the applicants were notified of the decision – where applicants were notified on 21 November 2003 but application not filed until 20 December 2004 – delay. |
Judiciary Act 1903 (Cth), s.39B.
Migration Act 1958 (Cth), ss.474, 477(1A)
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 361; (2002) 194 ALR 749
NAYU v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 528
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559
Minister for Immigration and Multicultural Affairs v Durairajasingham (2000) 168 ALR 407
The Queen v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565
S 58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 283
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
| First Applicant: | SZFGY |
| Second Applicant: | SZFGZ |
| Third Applicant: | SZFHA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 3691 of 2004 |
| Delivered on: | 9 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 9 November 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| First Applicant: | In Person |
| Counsel for the Respondent: | Mr Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Leave granted to join Refugee Review Tribunal as a Second Respondent to the Application
The Application is dismissed.
The Application is not competent.
The First Applicant is to pay the First Respondent’s costs fixed in the sum of $4,000.00. I allow six (6) months to pay.
The Application for adjournment is refused.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3691 of 2004
| SZFGY |
First Applicant
And
| SZFGZ |
Second Applicant
And
| SZFHA |
Third Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal that was made on 20th October 2003 and handed down on
12th November 2003. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant protection visas to the three Applicants.
Background
The Applicants are a husband and wife and their adult daughter. They are all citizens of India. They arrived in Australia on 14th March 2002 and applied for protection (Class XA) visas on 26th April 2002. The First Applicant, the husband, applied for a visa on the grounds of fear of persecution for reasons of religion and political opinion. His wife and daughter made no separate claim, and applied as members of the family unit.
The delegate of the Minister refused the applications for protection visas on 21st June 2002. The Applicants applied to the Refugee Review Tribunal on 19th July 2002. The Tribunal held a hearing on 29th July 2003 at which the First Applicant appeared and gave oral evidence. The Tribunal decision at page 88 of the court book says the Applicant was represented by his solicitor, Mr Jamnadas, but the First Applicant told the Court that his solicitor did not accompany him to the Tribunal hearing.
The First Applicant is a Jain by religion. He had always employed at least one Muslim in his business and over 80 per cent of his customers were Muslim. He told how he had been threatened by members of a Hindu militant organisation who had warned him not to employ Muslims. During communal violence in the state of Gujarat the First Applicant's shop was looted and gutted by fire. When the First Applicant made a complaint to the police he received threats from members of the Hindu militant organisation. The three Applicants fled from Gujarat.
The Tribunal’s Findings and Reasons for Decision
The Tribunal noted that the First Applicant said that he could not have re-established his business in some other part of India because the Hindu militants would have looked for him wherever he might have gone in India. The Tribunal did not accept that the First Applicant was threatened by the Hindu militant group, Bajrang Dal, because he always had at least one Muslim employee in his business, nor that the Applicants’ business was looted and gutted by fire in the course of the riots. The Tribunal did not accept that the First Applicant complained to the police or that he and his family were threatened by the Bajrang Dal as a result.
The Tribunal did not accept that the Applicant would face persecution in any other part of India from the Bajrang Dal or any other Hindu activist organisation because the First Applicant is a Jain or because of any perception that he is a Muslim sympathiser. The Tribunal did not accept that there was a real chance that the Applicants would be threatened because the First Applicant made a complaint to the police.
For those reasons the Tribunal considered that if the Applicants were to feel that they were unable to remain safely in their home town of Ahmedabad following the riots, it would be reasonable to expect the Applicants to relocate to some other part of India. Because the Tribunal did not accept that the Bajrang Dal or other Hindu militant groups targeted Jains or Muslim sympathisers the Tribunal did not accept the First Applicant had a well-founded fear of persecution for a convention reason wherever he were to go in India.
The Tribunal affirmed the decision not to grant protection visas.
The Applicants’ Application for Review
The Applicants filed an application under section 39B of the Judiciary Act 1903 (Cth) on 20th December 2004, more than a year after the Tribunal handed down its decision on 12th November 2003. Not surprisingly, the solicitors for the Respondent Minister have filed a Notice of Objection to Competency. In the Notice of Objection to Competency the Respondent Minister objects to the jurisdiction of the Court to try the application on the ground that the decision is a privative clause decision within the meaning of sub-section 474(2) of the Migration Act.
Pursuant to s.477(1A) of the Act, an application to the Court for review of a privative clause decision must be made within 28 days of the notification of the decision. The Notice says that the Applicant has failed to make an application within the required 28 days of being notified of the decision. The application was made 395 days after the notification.
The application filed by the Applicants seeks relief because the Applicants claim the Tribunal made an error of law. The grounds given by the application are the following:
i)That the decision-maker was involved in an improper exercise of power;
ii)That the decision-maker was not acting in good faith in making the decision;
iii)That the decision-maker erred in relying on what was known as the doctrine of effective state protection. The doctrine of effective state protection is no answer to the claims that Australia has a protection obligation;
iv)The decision-maker did not follow proper procedure as required by the Migration Act 1958 in that procedures required by the act and Migration Regulations were not observed;
v)The Tribunal decision involved an exercise of power in making its finding;
vi)The Tribunal failed to investigate the Applicants’ claim;
vii)The decision-maker had identified the wrong issue, asking himself wrong questions, ignoring the relevant material, making erroneous findings and reaching a mistaken conclusion, thus committing an error of law constituting jurisdictional error.
There are no particulars given in respect of these claims, but the Applicant was asked in Court to make oral submissions concerning those claims.
In respect of his claim that the Tribunal was not acting in good faith, he said that he had put his position very clearly but in spite of this the Tribunal did not look into his case and did not believe him.
In respect of his claim relating to the doctrine of effective protection, he said that whilst the Tribunal claimed if he had fears he could go to another place in India, but he said that the Bajrang Dal is everywhere all over India and he and his family would not be safe in any part of the country.
In respect of the claim that the Refugee Review Tribunal did not follow the procedures in the Act or the Regulations, the Applicant replied basically that the Tribunal did not accept his case and even though he put his case to the Tribunal the Tribunal had not accepted it.
Turning to the claim about abuse of power, the Applicant said that protection was part of human rights. If he goes back he will be facing persecution. He and his wife could be killed and their daughter could be harmed. He conceded that he did attend the Tribunal hearing and give evidence and provide documents.
In respect of the ground that the Tribunal had failed to investigate his claim, the Applicant said that the Tribunal had decided that he could go and live in some other part of India but the Tribunal did not see that the Bajrang Dal were located all over India so that he would not be safe in any place. He said that he had done all his submissions, but the Tribunal had just not looked into the case.
In respect of the final ground relating to the wrong issue, asking the wrong question, ignoring relevant material, making erroneous findings and reaching the wrong conclusion, the Applicant said that he had made it clear to the Tribunal that if he and his family were to go back to India his life, his wife's life and his daughter's life would all be at risk.
The Applicant conceded that the Tribunal had handed down its decision on 12th November 2003 but he did not make his application until 20th December 2004. His explanation for the delay in commencing proceedings was that he did not know about the procedure and his lawyer did not advise him about it.
Finally, the Applicant said that the Tribunal had said that because he was a Jain the Hindus as such were not against him. The Tribunal did not conduct a proper investigation. He would like to stay in Australia and work hard and contribute to the country and that in India his life and his family's lives were at risk.
Dealing with the Applicant's claim that the decision-maker was involved in an improper exercise of power, I am not of the view that that claim has been made out. The Tribunal acted within its jurisdiction after hearing the Applicants’ evidence at a Tribunal hearing. The Applicant claimed that the decision-maker was not acting in good faith in making that decision and he based that on the finding by the Tribunal that he and his family were not entitled to the grant of protection visas. The Full Court of the Federal Court has made a number of judgments about allegations of lack of good faith and a set of principles are set out in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 361; (2002) 194 ALR 749. The propositions set out briefly are as follows:
·First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker.
·Second, the allegation is not to be lightly made and must be clearly alleged and proved.
·Third, there are many ways in which bad faith can occur.
·Fourth, the presence or absence of honesty will often be crucial.
·Fifth, the circumstances in which the Court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.
·Sixth, mere error or irrationality does not of itself demonstrate lack of good faith.
·Seventh, errors of fact or law and illogicality will not demonstrate bad faith in the absence of circumstances which show capriciousness.
·Eighth, the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task.
·Ninth, it is not necessary to demonstrate that the decision-maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power.
The decision in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (supra) is binding on the Federal Magistrates Court. In this case the First Applicant has made a serious allegation of bad faith about the decision-maker. He provides no particulars, except that the decision was unfavourable to the Applicants. In support of this he relies on the decision itself. There is nothing in the decision that indicates any bad faith, nor is there any evidence the Tribunal member acted dishonestly or recklessly. I find the allegation of bad faith has not been made out.
Dealing with the third ground relating to effective state protection, I agree with the submission by the Respondent's counsel that this ground is misconceived and the Tribunal's decision did not turn on any finding of effective state protection.
Turning to the fourth ground, the allegation that the Tribunal did not follow proper procedures, the Applicants do not identify what procedures they say that the Tribunal failed to follow and no breach of the Migration Act or Migration Regulations appears from the decision or the court book. This ground must fail.
The Applicants alleged that the Tribunal decision involved an abuse of power. No particulars were provided in the application and the Applicants' explanation of the abuse of power amounted to a challenge of the Tribunal's factual finding. Merits review is not available when the Court conducts judicial review of an administrative decision‑maker's decision.
Turning to the sixth ground, the failure by the Tribunal to investigate the Applicants' complaint, the Tribunal was under no duty to conduct such an investigation. There are a number of authorities to this effect, including NAYU v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 528.
The seventh ground, being comprehensive statements of grounds relating to the wrong issue, asking the wrong question, ignoring relevant material, making erroneous findings and reaching the wrong conclusion, is not a ground that is of any assistance to the Applicant. Making erroneous findings and reaching the wrong conclusion relate more to merits review than identifying an error of law. Nor have the Applicants identified any wrong issue or wrong question. The Tribunal appears to have considered the relevant material but the Applicants are of the view that the Tribunal did not make a factual finding that supports their case.
That may be the case, but factual findings are the task of the decision-maker and not the Court conducting judicial review. I refer to Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259. The reality is that the application was not successful before the Refugee Review Tribunal because the Tribunal member was not satisfied about the credibility of the First Applicant's evidence. The Tribunal member gave reasons as to why he was not satisfied as to the Applicant's credibility and in my view the Tribunal's findings on credibility were open to it on the evidence before it.
Where there is evidence that supports a finding negative to the credibility of a witness reaching such a conclusion does not constitute jurisdictional error. (See Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559.) Decisions on credibility are the function of the primary decision-maker. (See Minister for Immigration and Multicultural Affairs v Durairajasingham (2000) 168 ALR 407in the judgment of McHugh J at [67]).
I am satisfied that no jurisdictional error has been shown, and as there is no jurisdictional error the decision is a privative clause decision and attracts the protection of s.474 of the Migration Act. Because it is a privative clause decision sub-section 477(1A) of the Migration Act applies. Any application for judicial review of a privative clause decision in the Federal Magistrates Court must be filed with the Court within 28 days of the Applicants having been notified of the decision. It must follow then that the Notice of Objection to Competency must succeed as the application is out of time.
The application in fact was filed more than a year after the notification of the decision and an unexplained and unwarranted delay after the decision was made known to the Applicant is of itself sufficient to allow the Court in its discretion to dismiss the application. The Court has a discretion to dismiss an application for a Constitutional writ in cases where there has been unwarrantable delay and this discretion can be exercised against an applicant without determining whether there has been any jurisdictional error. (See The Queen v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565; see also S 58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 283).
A delay of more than a year, as is the case here, would normally lead to relief being excused in the exercise of the Court's discretion. I refer to the decision of McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495-496.
In this case it is clear that the Applicants were aware of the decision shortly after it was handed down. They did nothing to challenge that decision in this Court until December 2004, more than a year later. Whether or not their bridging visas had expired has not been made clear but the explanation given by the First Applicant that they did not know the procedures and their solicitors did not advise them is not sufficient explanation for an unreasonable delay. In my view, the delay in commencing the proceedings would of itself be sufficient to justify the Court in declining to grant relief on discretionary grounds. It follows that the application must be dismissed. I also find that the application is not competent, having been commenced out of time.
There is an application for costs. The Applicants have been wholly unsuccessful and it normally follows that the Court will exercise its discretion in favour of a successful party and make an order for costs. The First Respondent minister estimates costs on a party-party basis at $4,000.00. That figure is inclusive of counsel's fees and it appears to me to be a reasonable figure, bearing in mind the history of this matter, and within the range contemplated by Schedule 1 of the Federal Magistrates Court Rules.
The Applicant says that he is not working and does not have any money. I accept that may be the case, but that is not of itself a ground for not making an order for costs in this jurisdiction. It is a ground for the Court to consider when assessing whether time to pay should be allowed. As far as the Second and Third Applicants were concerned, their claims were dependent on that of the First Applicant. They had no independent claim and they have played no part in the proceedings before the Refugee Review Tribunal and no part in the proceedings before this Court. It can hardly be said that their addition as Applicants has created any more work for the Respondent Minister. The Third Applicant being an adult did not even require a litigation guardian to be either appointed or dispensed with.
I propose to order that the First Applicant should pay the First Respondent's costs fixed in the sum of $4,000.00. Taking into account his financial situation, I allow six months to pay.
I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 18 November 2005
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