SZFHV v Minister for Immigration
[2005] FMCA 1779
•23 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFHV v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1779 |
| 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 – Applicant is a citizen of India claiming a well-founded fear of persecution because he is a Sikh who is a member of the Akhali Dal party in India – delay. 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 – delay – where Applicant notified of RRT decision on 30 October 2001 but application for review not filed until |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474, 477
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 190 CLR 225
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 87 ALR 412
Minister for Immigration and Multicultural Affairs and Rajalingam (1999) 93 FCR 220
Annetts v McCann (1990) 170 CLR 596
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 84 ALD 325
SZBDN v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 656
SZECK v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 283
Ngu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 54
Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476
S58 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
| Applicant: | SZFHV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 3733 of 2004 |
| Delivered on: | 23 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 23 November 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Kumar |
| Counsel for the Respondent: | Mr James Mitchell |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Leave to join the Refugee Review Tribunal as a party to the proceeding.
Refugee Review Tribunal is joined as Second Respondent.
The Application is dismissed.
The Application is not competent.
The Applicant is to pay the First Respondent’s costs of 7 October 2005 in the sum of $290.00.
The Applicant is to pay the First Respondent’s costs of the proceeding fixed in the sum of $5,000.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3733 of 2004
| SZFHV |
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 8th October 2001 after a hearing attended by the Applicant on 12th July 2001. The Tribunal handed down its decision on 30th October 2001 affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant a Protection Visa to the Applicant.
The Applicant filed an application for judicial review on 22nd December 2004. He has since filed an Amended Application and I note that the Applicant at one stage was represented by a firm of solicitors who filed a Notice of Ceasing to Act on 21st September 2005. He has since early in October 2005 been represented by Mr Kumar of counsel.
Background
The facts so far as they are relevant are that the Applicant is a citizen of India who arrived in Australia on 30th January 2000. On 2nd March of that year he lodged an application for a Protection (Class XA) visa with the then Department of Immigration and Multicultural Affairs.
A delegate of the Minister refused that application on the 14th March 2000 and on 13th April in that year the Applicant applied for a review of that decision.
The Applicant attended the hearing and gave oral evidence on Thursday 12th July. His then solicitor made a post-hearing submission which was dated 20th July. The Applicant had said in his application for a Protection Visa that his parents were part of a group in India called Akhali Dal and were members of the Sikh religion. They were marked, he said, as extremists at a young age. They were falsely accused of acts that they could not possibly have done and taken into detention. The Applicant made allegations about the corruption of the police and told the Tribunal about his fears that the police would torture him if he returned to India. He said that he would not be able to travel on his original passport because he was not able to get one and he had to change his name to come to Australia.
The Tribunal in its findings and reasons noted that the Applicant had said that he had been subject to persecution because he was a Sikh and because he was associated with the Akhali Dal party and because he was a landowner. He claimed that persecution took the form of two arrests by the local police which led to bribery. He claimed that he had been subjected to threats from lower caste persons working on his farm and that as an upper caste person he has been subject to general discrimination. As a result, he fears further persecution if he were to return to India.
The Tribunal accepted that the Applicant was a Sikh in terms of his ethnic group and that his family was associated with the Akhali Dal party. The Tribunal was of the view that the Applicant was not a practising Sikh in terms of a follower of the religious beliefs of Sikhism. The Tribunal also accepted the Applicant was, on one occasion in 1987, detained by the police and his family needed to pay money for his release. The Tribunal accepted this because the evidence of both the Applicant and a witness called by the Applicant was consistent and detailed.
Unfortunately for the Applicant, the Tribunal did not accept that he was detained by the police in 1998 or 1999. The Tribunal did not accept that claim because of what it described as:
The inconsistency and lack of detail about his claimed second address.
The Tribunal noted country information which indicated that the Akhali Dal Party had undergone a number of transformations; that whilst in the 1980s it was closely affiliated with the Sikh movement, in the 1990s the party became increasingly non-secular and moderate and it had then constituted a major party and was allied with the BJP. In fact, members of that party held Ministry positions.
The Tribunal accepted that land owners may potentially be characterised as a particular social group but the Tribunal did not accept that in this particular case the Applicant formed part of a particular social group being landowners.
The Tribunal said that whether a supposed group is a particular social group in a society will depend on all of the evidence. It is not sufficient, however, that a person be a member of a particular social group and also have the well-founded fear of persecution. The persecution must be feared because of the person's membership or perceived membership of the particular social group. (See Applicant
A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 190 CLR 225).The Tribunal did not consider that Sikhs still constituted a persecuted group in the Punjab. The Tribunal considered that one detention occurring 13 years before did not, of itself, give rise to a well-founded fear of persecution on returning to India at the time of the hearing. The Tribunal was satisfied that the Applicant, on returning to the Punjab, would not face persecution simply because he was a Sikh. The Tribunal was also not satisfied that the Applicant would face persecution because he was a member of a particular social group such as landowners and formed the view that the Applicant's difficulty with his lower caste workers arose from the fact that he was a person who had personal wealth.
The Tribunal affirmed the decision of the Minister's delegate not to grant a Protection Visa to the Applicant. The Applicant filed his application on 22nd December 2004, set out grounds that the Tribunal did not observe procedures that were required by the Migration Act or the regulations to be observed in connection with the making of the decision, claimed also that the Tribunal did not have jurisdiction to make the decision, and third, that the decision was not authorised by the Act or the Regulations made under the Act.
Applicant’s Submissions
Counsel for the Applicant, Mr Kumar, provided the Court with a detailed and closely argued outline of submissions. Counsel indicated that those grounds and particulars set out in the application that were not covered in his submissions could be taken by the Court to be abandoned and I am of the view that that was an appropriate way.
Counsel for the Applicant took the view that the Tribunal had not applied the correct test as far as a well-founded fear was concerned. He submitted, that having found that the Applicant was detained in 1987, irrespective of whether he was detained or not in 1999 that the Tribunal had proceeded to extrapolate whether the Applicant would suffer harm on the balance of probabilities. The Applicant submitted that the Tribunal erred in making the findings of well-founded fear. Referring to the decision of Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 87 ALR 412. In the judgment of Mason CJ it was said at pages 386 and 418:
A fear of persecution is well-founded if there is a real chance that the refugee will be persecuted if he returns to his country of nationality.
The Applicant submitted the Tribunal had misconstrued the test and had failed to carry out the real chance test as required by law but has resorted to the balance of probabilities test which has of course been ruled as inappropriate in the Minister for Immigration and Multicultural Affairs and Rajalingam (1999) 93 FCR 220. It was also submitted that the Tribunal had failed to consider this discrimination amounting to persecution and whilst the Tribunal adverted to one element implicit in the applicant's claim that he was likely to suffer discrimination amounting to persecution, the Tribunal had failed to consider particularly whether the Applicant would suffer discrimination in employment amounting to persecution involving serious harm or if there was a real chance that the applicant would suffer discrimination in employment amounting to persecution involving serious harm.
On the question of social class and relocation, the Applicant’s counsel submitted that the Applicant is in a group that constitutes a particular social group, being a Sikh, who belongs to a particular group of Sikh who are farmers and are politically involved. This, he submitted, constituted a particular group. The Applicant also submitted that there was a procedural fairness. It is well-settled, he submitted that the rules of natural justice apply. Despite the fact that in Annetts v McCann (1990) 170 CLR 596, Brennan J stated that:
The Common Law will usually imply a condition that a power be exercised with procedural fairness to parties whose interests might be adversely affected by the exercise of power. This is the foundation and scope of the principles of natural justice.
The Applicant submitted that the Tribunal had not conducted the review as required by ss.420 and 481 of the Act. In short, the matter should be remitted to the Tribunal.
Respondent’s Submissions
The respondent submitted an Outline of Submissions and later a Supplementary Outline of Submissions in reply to the Written Submissions made by the Applicant. The Supplementary Submissions are more pertinent to the case as argued before me in that they were written as a result of the receipt of the Applicant's Written Submissions. The Respondent submitted that the Applicant was detained in 1987 but the Tribunal found that circumstances had changed since then and those changed circumstances meant that the Applicant did not have a well-founded fear based on his previous detention alone.
The Respondent submitted that the Applicant's claim that he was a member of a particular social group constituted by Sikh farmers who are politically involved in the Akhali Dal was in fact misconceived. The Tribunal pointed out that the Applicant's claims had been identified at page 71 and 73 of the Court Book. In particular, where the Tribunal referred to the Applicant's claims that he had been subject to persecution because he was a Sikh, because he was associated with the Akhali Dal Party and because he was a land owner.
The Tribunal accepted, at page 71 of the Court Book that landowners may potentially be characterised as a particular social group but did not accept in this particular case that the Applicant did form part of a particular social group, namely landowners. At page 73 of the Court Book the Tribunal considered that the Applicant's difficulties with his workers arose from the fact that he is a person who has some personal wealth and not because he was perceived to be a member of a particular social group such as landowners.
Because of this the Respondent submitted that there was no evidence that the Tribunal failed to identify the convention basis to which the Applicant's claim may be said to rest upon.
The Tribunal had rejected the constituent elements of the Applicant's claimed particular social group of Sikh farmers who are politically active. The RRT found separately and cumulatively that Sikhs and persons involved or perceived to be involved in the Akhali Dal were not persecuted, followed that the particular social group as defined by the Applicant was to fail once it is conceded and accepted that one of the constituent elements did not lead to a finding by the Tribunal that the Applicant would be persecuted.
The Respondent submitted that there was no evidence that the Tribunal had applied a balance of probability test and noted that the Tribunal had, at page 62 of the Court Book, set out accurately what the real chance test met. The Respondent submitted that the claim that the decision was affected by procedural fairness must fail. With the production of a transcript of the hearing and putting that transcript into evidence, no conclusion could be drawn with any material as claimed by the Applicant and was not put by the Tribunal to the Applicant.
The Respondent submitted that s.424A of the Migration Act had not been breached by the Tribunal because country information, said not to have been put to the applicant, was not specifically about the Applicant. He referred to Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 84 ALD 325. The circumstances of the Applicant's case demonstrated that there was no denial of procedural fairness in that the country information was not novel or of a nature that would surprise the Applicant. There was no suggestion that the Tribunal mislead the Applicant and the Applicant had not put before the Court a true indication of the type of evidence and material that he would have placed before the Tribunal if he had known of the country information.
Dealing with the claim of failure to consider discrimination amounting to persecution; the Tribunal, it is submitted, did consider the Applicant's claim that he suffered discrimination in employment but found there was no evidence of his being denied education or employment because he was upper caste and concluded that the Tribunal did not accept that the Applicant had been discriminated against in terms of employment, education or access to government because he was a landowner or an upper caste person and not a lower caste person.
In respect to the claim that the Tribunal failed to take into account a relevant consideration, namely that the Applicant travelled on a passport in another person's name on the basis of persecution, the Respondent submitted that the RRT clearly considered he did not accept the Applicant's claims in respect of his false passport and that that is covered at pages 63 and 74 of the Court Book.
The Respondent also submitted that in reply to the claim that the Tribunal misapplied the real chance test in finding that since the Applicant was not in the Punjab he was unlikely to be persecuted; the Respondent submitted that there was just no evidence that the RRT had misapplied that test. The Tribunal clearly articulated the test at pages 61 and 62 of the Court Book and there was no evidence that any other test was applied.
The Respondent raised the point that the application was incompetent because it was filed over three years after the RRT decision was handed down and it was accordingly outside the 28 day period specified in s.477(1)(a) of the Migration Act. That unless the Applicant could demonstrate jurisdictional error on the part of the Refugee Review Tribunal then the application would be incompetent. Section 477(1)(a) requires an applicant wishing to seek judicial review of a privative clause decision must do so within 28 days. The Court may not make any order that would extend that time. Clearly, if there is a jurisdictional error then it would not be a privative clause decision and the restriction in s.477(1)(a) would not apply.
I was referred to the decision of the late Hely J in SZBDN v Minister for Immigration and Multicultural and Indigenous Affairs and I also had recourse to SZECK v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 283 a decision of Madgwick J. In SZBDN, the citation to which is (2005) FCA 656, Hely J referred to a decision by a Federal Magistrate who upheld an Objection to Competency and dismissed the application seeking judicial review. In order to come to that conclusion his Honour first needed to be satisfied that the RRT's decision was privative clause decision within the meaning of the Act. (See Ngu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 54). If the RRT's decision as infected by jurisdictional error then it was not a privative clause decision. (See Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476).
His Honour went on to say at paragraph six:
Of course if the RRT's decision was infected by jurisdictional error then the appellant would have been entitled, subject perhaps to discretionary considerations, to the relief which he sought in the application. Hence, it was necessary for the Federal Magistrate to consider and the Federal Magistrate did in fact consider the merits of the application in coming to his conclusion that the application was incompetent.
Hely J went to say at paragraph 17, about s 477(1)A:
Section 477(1)A is, in the light of s 477(2) a matter which goes to the jurisdiction of the Federal Magistrates Court. However, given a decision in Plaintiff S157 of 2002 I am unable to perceive what practical benefit is achieved by the filing of a notice of objection to competency if the substantive merits of the appeal have to be determined in order to determine the objection as to competency.
In my view, that comment applies equally to proceedings at first instance before a Federal Magistrate. It is difficult to see the benefit of filing a Notice of Objection to Competency if one has to ascertain whether or not there has been jurisdictional error. If there is no jurisdictional error the decision will be a privative clause decision and the application will be dismissed. It matters not if the application is competent or incompetent under s.477(1)(a).
There is no advantage to either a respondent or an applicant in going through what has always appeared to me to be a back to front procedure. It is, in this case, clear to me that the Respondent's submissions are correct. There is no jurisdictional error and the decision is a privative clause decision pursuant to s.474 of the Migration Act.
To my mind, the real point, which was something far beyond the control of counsel for the Applicant, was the significant period of delay. The RRT decision was handed down on the 30th October 2001. The application was not filed in this Court until the 22nd December 2004. Over three years have passed since the RRT decision was made. The Applicant did not provide any explanation for that delay. The counsel for the Applicant, Mr Kumar, had sought instructions from his client to explain the delay and in fact sought an affidavit, but was unsuccessful. He noted that after the decision the Applicant had originally approached a solicitor and sought legal advice but at that stage did not have the funds to instruct the solicitor to bring the proceedings.
It was not until December 2004 that the Applicant filed his application and indeed, it was not until October of this year that the Applicant brief counsel to appear, very much at the last moment. It is now trite law that a Court has a discretion to dismiss an application for a constitutional writ in cases where there has been unwarrantable delay. This discretion can be exercised against an applicant without determining whether there has been any jurisdictional error.
The Full Court of the Federal Court in S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 283 found that it was eminently open to the trial judge to characterise the delay by the appellant as poorly or unsatisfactorily explained and dismiss the application on that basis. The length of delay in that case was four years and eleven months.
In Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491, there had been an application for extension of time to apply for writs of certiorari and mandamus and for the grants of orders nisi in respect of those writs. The applicant's applications for the orders nisi were 11 months out of time for the issue of certiorari and 15 months out of time for the issue of mandamus. In that case McHugh J held at paragraph 16:
Independently of the merits of the case I find it difficult to see how a person who with knowledge of the decision delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay.
His Honour went on to say in that paragraph, referring to the periods for replying for certiorari and mandamus, his Honour said:
In all but very exceptional cases they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.
In paragraph 17 his Honour went on to say:
An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment the respondent has a vested right to retain the judgment or decision.
In that case, I note the delay was one year and five months; significantly less than the Applicant's delay in this case. Whilst I am of the view that no jurisdictional error has been disclosed; even if there were I would be of the view that in the exercise of the discretion of Court I would refuse relief on the basis of the substantial and unexplained delay. I would make it quite clear that that delay is no way attributable to the Applicant's present legal adviser and indeed, the Applicant's present legal adviser was only given a brief at very short notice.
Which leads me to another point; the application originally came on for hearing on the 7th October. The Applicant's counsel, Mr Kumar, had only been briefed very shortly before and made great efforts, at very short notice, to prepare a substantial Written Outline of Submissions. There was some negotiation between the Applicant's counsel and the solicitors for the Respondent, the Respondent Minister, relating to the fact that the time for written submissions was already passed and the need for an adjournment or the preference for an adjournment by counsel for the Applicant. In the event, I granted the adjournment until today and reserved the First Respondent's costs.
For the Applicant; Mr Kumar submitted that if the Court were minded to make an order for costs of the day on the last occasion, that such an order should be minimal. He had explored the idea of an adjournment with the Respondent’s solicitor a day or so before and he of course had only been instructed the day before. Regrettably, this is a predicament that falls on counsel appearing for applicants, particularly counsel who accept a direct brief on all too frequent an occasion. I have sympathy for the predicament in which counsel find themselves. It appears that counsel can be in a cleft stick; either accepting instructions offered at the last minute or refusing at the last minute. The latter course would be seen by many members of the profession as unacceptable and not in accordance with their duty to act in the best interests of their client or in a way that responsible counsel are expected by the Court.
I do not know why applicants with ample notice of matters coming on for hearing leave it until the last moment to instruct their legal advisers. This application was set down for hearing by a Registrar of this Court on the 12th January 2005. There was, in fact, nearly nine months notice of the date of final hearing and it is extremely unfair on counsel to be briefed a day or so before. Where applicants choose to act in this way and this Applicant obviously did, then applicants must expect to bear the costs that can arise. To my mind there is a ground for a specific order for costs in respect of the 7th October. I note that was able to adjourn the matter to a hearing date which had become available only six weeks later so that the work done for preparation was not lost. That, to my mind, supports the submission by Mr Kumar that the costs awarded should be minimal.
Taking into account the time involved on that day involving the Respondent's counsel and solicitor, I will order that the Applicant is to pay the First Respondent's costs of the 7th October 2005 in the sum of $290.00. Otherwise, I grant leave to join the Refugee Review Tribunal as a party to the proceeding. The Refugee Review Tribunal is joined as Second Respondent. The application is dismissed. The application is not competent. The Applicant, as I said, is to pay the First Respondent's costs of 7th October 2005 in the sum of $290.00.
There is an application for costs of the proceeding. Counsel for the Respondent estimates those costs, inclusive of counsel's fees, on a party and party basis in the sum of $5,500.00. Mr Kumar, for the Applicant, submits that is on the high side. To my mind, looking at the work that is involved, I am of the view that the figure is perhaps a bit on the high side. I propose to order that the Applicant is to pay the First Respondent's costs of the proceeding fixed in the sum of $5,000.00.
I note that this is a situation where the Applicant has belatedly obtained legal advice. It is a matter of great regret that he did not instruct counsel much earlier but he does of course have the responsibility of his own costs and his own legal advisors so accordingly I will allow six months to pay the Respondent's costs as set out in orders five and six.
I will require a transcript of my reasons. Otherwise, I will remove the application from the list of cases awaiting finalisation.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 1 December 2005
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