SZFHN v Minister for Immigration
[2005] FMCA 1719
•25 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFHN v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1719 |
| MIGRATION – VISA – Protection visa – Refugee Review Tribunal – application for review of a decision of the Refugee Review Tribunal – Applicant born in Gaza – credibility – natural justice. PRACTICE & PROCEDURE – Oral application to Amend Application for review on day of hearing – Applicant wishing to add an extra ground should draft an Amended Application clearly setting out the additional grounds – delay – total delay by Applicant exceeds three years and six months – relief denied on discretionary grounds. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.417, 475A, 483A
R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565
Naguit & Anor v Minister for Immigration [2005] FMCA 930
S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283
The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S134/2002 (2003) 211 CLR 441
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162
Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198
| Applicant: | SZFHN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 3710 of 2004 |
| Delivered on: | 25 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 15 September 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Killalea |
| Solicitors for the Applicant: | Rob Makin & Associates |
| Counsel for the Respondent: | Mr Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Leave granted to join Refugee Review Tribunal as a Second Respondent.
That the Application is dismissed.
That the Applicant is to pay the First Respondent’s costs fixed in the sum of $8,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3710 of 2004
| SZFHN |
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 made on 23rd September 1997. The Applicant and his wife had sought protection visas on 28th November 1995. The Applicant claimed to be a stateless Palestinian who had lived most of his life in the Gaza Strip. The Tribunal posted a copy of the decision to the Applicant and his then solicitor under cover of a letter dated the following day.
The Tribunal gave the following decision:
The Tribunal is not satisfied that the Applicants are refugees and affirms the decision under review, which was a decision to refuse Protection Visas.
Background
The Applicant is said by the Tribunal to be a stateless citizen of Palestine. He arrived in Australia on 6th October 1995 on an Egyptian travel document accompanied by his wife, who traveled on an Israeli travel document. They applied for a protection visa on 28th November 1995. The Applicant claimed a well-founded fear of persecution because of his political opinion. His wife made no separate claim, but made a claim on the basis of being a member of the Applicant’s family unit.
A delegate of the Minister for Immigration and Ethnic Affairs, to use the Minister’s designation at the time, refused the Applicant and his wife’s application on 9th April 1996. The Applicant then lodged an application for review of that decision with the Refugee Review Tribunal on 10th May 1996.
He attended a hearing of the RRT on 26th March 1997 and gave oral evidence. He said that he had trained with the PLO and was assigned to a fighting unit called “Force 17” which seemed to have been particularly ineffective. He said that he had then been pressured to join a Palestinian group called the “Falcons of Fateh”, also known as the Fateh Hawks. This group killed Palestinians who collaborated with Israel. When he refused to join the Fateh Hawks, they spread rumours that he was an Israeli spy and had betrayed the cause of Palestine.
The Applicant left Gaza and went first to Jordan, and then to Russia, where he applied for residency. After his application was refused, the Applicant returned to Jordan and then to Gaza.
After he returned to Gaza, the Applicant was again accused of being an Israeli spy. In attacks by militants, the Applicant’s brother was wounded and his sister was later killed. A member of the Hawks was also killed.
The Applicant was continually subjected to harassment, including the spreading of rumours that he was involved in pro-Israel activities. The applicant and his wife fled to Jordan and then to Australia, where a brother of the Applicant lives.
The Refugee Review Tribunal’s Decision
The Tribunal made its decision on 23rd September 1997. In the Tribunal’s “Findings of Fact and Reasons for Decision” at pages 136 to 146 of the Court Book, the Tribunal did not accept that the Applicant had been a member of a group named Force 17. The Tribunal, at page 139 of the Court Book, found it hard to accept the Applicant’s claims that the Fateh Hawks had coerced him into joining their organization, or that he had actually joined the organization and had refused to kill Palestinians accused of collaborating with the Israelis.
The Tribunal was not satisfied that Applicant was ever a member of the Fateh Hawks or that they had targeted him as he had claimed. The Tribunal was satisfied that the chance of the Applicant experiencing serious harm or persecution for Convention reasons at the time of the hearing or in the immediately foreseeable future was remote.
Accordingly, the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason at the hands of the Palestinian authorities. The Tribunal was not satisfied that the Applicant husband and wife were refugees and affirmed the decision to refuse Protection Visas.
Application and Amended Application
The Applicant commenced these proceedings on 21st December 2004 by filing an application under s. 39B of the Judiciary Act 1903 and s. 483A of the Migration Act 1958 seeking a declaration that the decision of the Refugee Review Tribunal made on (23rd) September is null and void. The application contained one ground:
The decision under review was made in breach of the requirements of natural justice for the reason that the RRT failed to put to the Applicant the issue of the authenticity of Summonses purportedly by the Palestinian Authority in about 1995.
Counsel for the Applicant at the hearing sought to amend the application by adding another ground. The amendment had not been reduced to writing but was enunciated by counsel. Eventually, counsel for the Applicant prepared a hand-written document containing the following ground:
The decision under review was made in breach of the requirements of natural justice for reason that the RRT failed to give the Applicant the opportunity to comment on a material matter ultimately determined adversely to the credibility of the Applicant.
I allowed the amendment, rather reluctantly. I indicated to counsel that if an applicant wished to add one or more additional grounds to an application, the proper course is to draft an Amended Application, or a Further Amended Application, clearly setting out the additional ground or grounds.
Delay
The Court has a discretion to dismiss an application for relief in cases where there has been an unwarrantable delay. This discretion can be exercised against an applicant without determining whether there has been any jurisdictional error (see R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565 per Barwick CJ, Gibbs, Stephen, Mason and Aickin JJ at 568 and 570; Naguit & Anor v Minister for Immigration [2005] FMCA 930 at [18] – [23]; S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283).
Unwarrantable delay justifies the withholding of relief (see The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400. A delay of more than a year should ordinarily lead to relief being refused in the exercise of the Court’s discretion (see Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491, per McHugh J at 495-496).
Submissions
Mr Reilly of Counsel, for the Respondent Minister, submits that relief should be refused in the exercise of the Court’s discretion because of the Applicant’s delay in bringing the application. He submitted that there is a total delay in the order of three years. He further submitted that it is well accepted that “relief under s. 75(v) of the Constitution is, like prerogative relief generally, discretionary” (Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 at [33]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S134/2002 (2003) 211 CLR 441 at [90]. Delay remains a basis on which relief may be refused even if jurisdictional error is established (see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 at [80], [174] and [211]).
Mr Reilly submitted that even though the Applicant appeared to have made a request to the Minister for substitution of a more favourable decision under s. 417 of the Migration Act, this postdates much of the delay. In any event, an application to the Minister is not an adequate explanation for delay (Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198 at [14] and [15]).
For the Applicant, Mr Killalea of counsel submitted that the delay runs only from June 2003 to August 2004 when the Applicant made his submission to the Minister under s. 417. Refusal of relief on discretionary grounds is more applicable to arguments on a fine point, he submitted.
Conclusions
I am satisfied that there has been a delay by the Applicant in seeking relief. The Respondent filed an affidavit sworn by Catherine Jane Gray, solicitor, setting out the history of this matter. I found the affidavit to be very helpful and I would encourage the filing of such affidavits in future cases where delay is an issue.
The Refugee Review Tribunal made its decision on 23rd September 1997. The Tribunal wrote to the Applicant the next day, 24th September 1997, enclosing a copy of the decision. I note that the letter told the Applicant:
If you want the Federal Court of Australia[1] to review your case you must apply within thirty-five (35) days after the date of this letter …
[1] There was no Federal Magistrates Court until 2000
On 8th November 1999, the Applicant joined the list of plaintiffs in the representative proceedings in the High Court of Australia known as Lie v Refugee Review Tribunal & Ors S89 of 1999. On 25th November 2002 Gaudron J made orders in those proceedings, the relevant ones of which are:
2. Leave be granted to any other person named in the Schedule to the Statement of Claim in these proceedings to file an application, seeking an Order Nisi in relation to the respective decisions of the Refugee Review Tribunal in relation to that individual, on or before 1 June 2003.
3. Any application filed pursuant to order 2 above shall be remitted instanter upon filing to the Federal Court of Australia in accordance with the usual terms of remitter pursuant to s.44 of the Judiciary Act 1903 (Cth).
4. Upon the filing of an application in accordance with Order 2 above, the name of the applicant shall forthwith be deleted from the Schedule of persons annexed to the Statement of Claim in these proceedings.
5 .Subject to Order 6 below, and in the absence of any further order of the Court, on and from midnight on Friday, 30 May 2003, these proceedings shall stand dismissed.
On 23rd May 2003 and 16th June 2003 McHugh J extended the period of time in orders 2 and 5 in Gaudron J’s orders from 1st June to 20th June 2003.
Ms Gray deposes at paragraph 7 of her affidavit that the Applicant failed to file any further application by 20th June 2003. It follows that the Applicant’s application to the High Court was dismissed on and from midnight on 20th June 2003.
In the affidavit of Ian D. Graham of 8th December 2004, he deposes that:
I am informed by the Applicant, and I verily believe it to be true, that the Applicant made a request to the Minister for Immigration, under s. 417 of the Migration Act, on or about 23 August 2004.
Presumably, the Minister declined to grant the request.
The letter to the Applicant from the Refugee Review Tribunal dated 24th September 1997 advised him that he needed to apply to the Federal Court within thirty five days, i.e. by 29th October 1997. Clearly, he did not do so.
The Applicant did not seek any relief until 8th November 1999, two years and 10 days later, when he joined the Lie representative action in the High Court. His application was dismissed on 20th June 2003. He applied to this Court on 21st December 2004, one year and 6 months later.
In my view, the s. 417 application to the Minister made on 23rd August 2004 is immaterial. Even if it were to be accepted as an explanation for the delay in commencing proceedings, the application to the Minister was not made until 14 months after his application to the High Court was dismissed.
In any event, I do not accept that an application to the Minister under s. 417 of the Migration Act is an adequate explanation for a delay in commencing court proceedings. I refer to the decision of Goldberg J in Daniel v Minister for Immigration and Multicultural and Indigenous Affairs and Others [2004] FCA 21; (2004) 205 ALR 198 at [15]:
Adopting the observation of McHugh J in Re Commonwealth; Ex parte Marks (above) I do not consider that there are any or sufficient exceptional circumstances which warrant allowing the extension of time. The basic submission propounded by the applicant as to the reason for the delay was his decision to seek a more favourable outcome from the minister on humanitarian grounds, pursuant to s. 417 of the Act. The applicant submitted that he acted reasonably in the circumstances in attempting to obtain a more favourable decision. However, I do not consider that the pursuit of such a decision constitutes a sufficient special circumstance to warrant excusing the delay and allowing the extension of time, particularly because the applicant’s conduct implicitly accepted that the tribunal’s decision was not to be the subject of challenge.
It appears to me that the Applicant’s delay amounts to a total of three years, six months and ten days before commencing proceedings in this Court. The delay is excessive and insufficiently explained. It is more than twice the 17 months delay about which McHugh J was so critical in Re Commonwealth; Ex parte Marks. Even if I were to accept that the application to the Minister for a more favourable decision under s. 417 were some sort of explanation, that process took less than 4 months to run its course. There is still a total of over three years which is entirely unexplained.
I believe that it would be quite wrong, even if the Applicant has a good case for relief, to sanction such a long and poorly explained delay. As a matter of discretion I decline to grant relief on the ground of the Applicant’s lengthy and unexplained delay.
The application will be dismissed with costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 22 November 2005
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