SZFJP v Minister for Immigration

[2005] FMCA 1903

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFJP v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1903

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 a citizen of Lebanon. 

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 – where Applicant notified on 24 July 2003 but application for judicial review not filed until 4 January 2005 – unnecessary to make finding where application is to be dismissed on a final basis – delay – one year and six months.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.415, 417, 474, 477(1A)

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
VWZG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1018
SZATJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 168
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 Applicants S134/2002 (2003) 211 CLR 441
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407.
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth (1999) 197 CLR 510
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198
SZGAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1785
SZBDN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 656

Applicant: SZFJP

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG 9 of 2005

Delivered on: 15 December 2005

Delivered at: Sydney

Hearing date: 13 December 2005

Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person

Solicitor for the Respondent: Ms McNamara

Solicitors for the Respondent: Phillips Fox

ORDERS

1. Leave granted to join the Refugee Review Tribunal as a party to the proceedings.

2. The Refugee Review Tribunal is joined as Second Respondent to the application.

3. The Application is dismissed.

4. The Applicant is to pay the First Respondent’s costs in the sum of $5,000.00.

5. I allow twelve (12) months to pay.

6. I RECOMMEND that the Minister again give consideration to substituting for the decision of the Refugee Review Tribunal under s.415 another decision, being a decision that is more favourable to the Applicant.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 9 of 2005

SZFJP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal that was made on 27 June 2003 and handed down on

   
   

   24 July 2003. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant a Protection (Class XA) visa to the Applicant.

2. The Applicant arrived in Australia on 17 October 2001. He is a citizen of Lebanon. On 16 January 2002 he applied for a Protection (Class XA) visa claiming a fear of persecution on the basis of his political opinion and activities. A delegate of the Minister refused his application for a protection visa on 17 July 2002. On 12 August 2002 the Applicant sought a review of the delegate's decision from the Refugee Review Tribunal. The Tribunal wrote to him on 12 March 2003 inviting him to attend a hearing that was to take place on

   
   

   11 April. He did not attend the hearing, but the Tribunal granted him a rehearing on 24 April 2003. He attended that hearing and gave oral evidence. 

3. The Tribunal wrote to the Applicant on 28 April drawing certain information to his attention under s.424A of the Migration Act. The Applicant provided documents in answer to that letter on 2 May and a further document on 20 May 2003. The Tribunal handed down its decision on 24 July 2003 affirming the decision of the delegate not to grant the Applicant a protection visa.

4. The principal reason for the Applicant's failure to succeed before the Refugee Review Tribunal was the fact that the Tribunal did not consider him to be a credible witness. The Tribunal referred to some of his evidence as being unconvincing, especially in regard to his arrest in January 2000 and July 2001 for a number of reasons. The Tribunal noted the delay between his arrival in Australia and his application for a protection visa and noted a contradiction that it saw in his evidence.  The Tribunal also noted the lack of evidence supporting his claims regarding his alleged arrest with 20 other activists in January 2000. 

5. In respect of his claims relating to September of 1995 and 1996, the Tribunal found a lack of probative evidence, referred to independent country information that did not support the Applicant's claim and whilst not ruling out that the Applicant had been arrested, detained and mistreated in September 1995 and September 1996, it was not satisfied that if he had been harmed it was necessarily for the reasons that he claimed. Whilst the Tribunal accepted that the Applicant was a member of the Lebanese Forces, it still expressed its reservations relating to his credibility. 

6. The Applicant brought an application to this Court for review of the Tribunal's decision. He filed that application on 4 January 2005. The solicitors for the Respondent Minister have filed a Notice of Objection to Competency. That is a notice stating that the application is out of time. There is a time limit set by sub-section 477(1A) of the Migration Act requiring an application for review of a privative clause decision to be made to the Federal Magistrates Court within 28 days of the notification of the decision. As the notification of the decision had taken place in July of 2003, the application was out of time; the application had in fact been brought about 18 months after the decision had been notified.

7. The Minister's lawyers accept that if the decision is a privative clause decision as defined by s.474 of the Act, it can still be set aside if there has been a failure to discharge imperative duties or to observe inviolable limitations or restraints. (See Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at para.76). The Minister submits that because this is a privative clause decision, and in the Minister's submission there is no jurisdictional error, under the provisions of sub-section 477(1A) of the Act the Court would therefore have no jurisdiction to hear the matter. I am referred to the decisions of VWZG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1018 and SZATJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 168.

8. It is put somewhat boldly in the submission that the Applicant has not provided any explanation for the delay in question. An explanation for delay is not relevant in the situation relating to a Notice of Objection to Competency. It does not matter if the application is one month late or 11 months late. The time limit set by sub-section 477(1A) is mandatory. However, the Minister's solicitors submit that, in any event, relief should be refused in the exercise of the Court's discretion because of the Applicant's general delay in bringing these proceedings.

9. Relief under sub-section 75(5) of the Constitution is, like prerogative relief, generally discretionary. (See Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 at para.33; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at para.90; and also the well-known decision of Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 in the judgment of McHugh J). In that case his Honour held that a delay of more than a year should ordinarily lead to relief being refused in the exercise of the Court's discretion.

10. Turning to the grounds of review, those are set out in an Amended Application filed on 23 June this year. The Applicant seeks, first of all, that the Tribunal made by the Tribunal be returned to the Tribunal and be reheard by the Presiding Member. The grounds are that the Tribunal in finding that there was no evidence to support the Applicant's claim that he would face serious harm and persecution because of his political opinion or activities failed to have regard to country information which it had obtained. The application sets out country information in its text. 

11. The application also states that in finding that the Applicant described his activities as organising meetings for students etc in claiming that that did not support his claim that his life would be at risk because of his political involvement in activities, the Refugee Review Tribunal adopted the wrong test and failed to challenge and assess the reasons for the Applicant's role and why he would be targeted. It was also submitted that the Tribunal should have considered whether there was a real chance of persecution and that the Tribunal's decision was unreasonable.

12. This is largely, to my view, an attempt at persuading the Court to conduct a merits review, which is outside the jurisdiction of the Court.  I am not satisfied from reading the decision that the Tribunal did not consider whether there was a real chance of persecution and the degree of unreasonableness alleged by the Applicant. It does not appear to me in the pages of the decision.  As I have said, it is clear that the Applicant's credibility in the eyes of the Tribunal formed the basis of the Tribunal's decision not to accept the applicant's account of the circumstances relating to his case. 

13. It should be made clear that assessment of credibility is purely a task for the decision-maker, in this case the Tribunal member. Findings about an applicant's credibility are matters of fact par excellence, to quote para.67 of Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407. There is no error as long as the Tribunal's credibility findings were open to it (See Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559; see also W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at paras.64-69). In short, it appears to me that there was evidence that enabled the Tribunal to make the findings that it did.

14. As I have said earlier, a Court conducting judicial review cannot review the merits of the Refugee Review Tribunal's decision. (See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p.272). Even if the Tribunal makes a wrong finding of fact, this is not a jurisdictional error. (See Abebe v Commonwealth (1999) 197 CLR 510 para.137).

15. It is important when considering a claim for a delay in commencing proceedings to be used as a ground for the Court exercising its discretion not to grant relief that the delay should be seen to be unwarrantable and improperly explained. If there is a reasonable explanation for the delay, then of course the Court is in a position where it can still exercise its discretion to grant relief notwithstanding the length of time that may have elapsed.

16. In this case the Applicant has sought advice from two separate migration agents. The first agent advised him not to take proceedings to Court but to seek by means of an application to the Minister the substitution of a decision more favourable to him than the Tribunal decision.  That is of course a path that is open to a person to take, but it has been held in such matters as Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198 not to constitute a good reason for delay any more than failure to obtain favourable legal advice.

17. In this case the Applicant was most unfortunate in that it appears from his submissions that the agent let him down badly and at considerable expense. He told the Court that he had expended money in the order of some $4,000.00 in respect of the agent and that there are proceedings, either contemplated or on foot, brought by the Department of Immigration and Multicultural and Indigenous Affairs against this person. The Applicant says that he is in fact required by the Department to give evidence on the Department's behalf against his former agent. 

18. When it became clear to the Applicant that the agent in whom he had placed his trust had abused that trust, not surprisingly, he sought other advice. In this case, however, he went to a migration agent called Ardem International Pty Ltd. He has produced evidence to show that he lodged an amount of $10,000 with them of which $3,800.00 has been deducted for professional fees. Regrettably for the Applicant, he received a letter dated 25 August 2005 from the principal of the migration agent referring to his instructions to work on an application for another visa, a permanent skilled visa (subclass 138). It appears that this visa was being applied for as well as a protection visa, but I am not aware of any restriction on a party's right or ability to apply for two separate visas simultaneously.

19. Indeed, it would seem to be me to be preferable to adopt that course than to wait until one visa had not been granted and then perhaps to commence an application for another visa out of time. The letter advised the Applicant that due to a number of unfortunate events the agent will not be able to provide any further services to him.  The letter goes on to say:

    I have informed the required licensing authorities and Australian Securities and Investments Commission that the business has stopped trading and that I have stopped trading as migration agent. 

20. The letter goes on to say, rather astonishingly:

    I understand that you have relied on my ability to represent your family in your migration matter.  However, in light of the above, I cannot continue any work at all.  I recommend that in order to avoid any further detriment that may have been caused to you by this you take the following course of actions:  (1) decide whether to appoint another migration agent or solicitor. (2) contact Trades Recognition Australia for your skills assessment results.  (3) contact Migration Agents Registration Authority should you wish to complain.  Please note your details below. MARA PO Box Q151, QVB, New South Wales 1230, Sydney.  Please note that you should contact the MARA in relation to the money that you have paid to me as I hold professional indemnity insurance and you can make a claim against me in relation to the moneys that are outstanding to you for the work that has not been performed.

21. The letter is all the more astonishing as it does not suggest that the funds being held on the Applicant's behalf be returned to him. 

22. It is quite clear that the Applicant on his assertions and in the light of the written evidence that he has provided has been poorly served indeed by not one but two migration agents.  I am not satisfied that this necessarily can be taken as an explanation for delay in commencing these proceedings, but as I will indicate shortly, it may well be a matter to be taken into account in another way.

23. In my view, the delay and the credibility findings by the Tribunal are sufficient for me to dismiss the application. I am satisfied that I am required by the period of delay of in excess of a year not to exercise the Court's discretion in favour of granting relief by way of a Constitutional writ.  Even if I were satisfied that that delay was not a disqualifying factor, the credibility finding by the Tribunal to my mind is unassailable.  Accordingly, I am obliged to dismiss the application. 

24. There are two other matters, however. The Respondent Minister, as I said earlier, has filed a Notice of Objection to Competency on the basis that the application for judicial review was not filed until 4 January 2005 whilst the Tribunal decision was handed down in July 2003. This is well outside the 28-day time limit prescribed by s.477(1A). As I have found the decision is a privative clause decision under s.474 and the application will be dismissed on that basis, it seems hardly necessary for me to find that the application is incompetent. The order of dismissal that I intend to make is intended to be a final order, not an interlocutory order.

25. With respect, I follow what was said by Lindgren J in SZGAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1785 at para.1 where he adopted what was said by Hely J in SZBDN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 656 at para.17:

    Section 477(1A) is, in the light of s.477(2), a matter which goes to the jurisdiction of the Federal Magistrates Court.  However, given the decision in Plaintiff S157/2002, I am unable to perceive what practical benefit is achieved by the filing of a notice of objection to competency if the substantial merits of the appeal have to be determined in order to determine the objection as to competency.  In the circumstances it seems to me to be both unnecessary and confusing to make a finding as to competency sought by the notice of objection to competency.  Accordingly, I decline to do so.

26. The other only matter is one that I touched upon before.  He does, as I have said, that the Applicant has been extremely poorly treated by two migration agents and in fact he has produced documentary evidence in respect of the second migration agent. Quite clearly, he has a claim against the agent and should take the necessary action with the MARA.  As far as his giving evidence on behalf of the Department of Immigration and Multicultural and Indigenous Affairs is concerned in respect of proceedings against his first agent, this, to my mind, is a matter that should be taken into account as an action to his credit.  If it is the fact that the Department is commencing proceedings against this person, the Applicant's assistance in such proceedings is a matter which, to my mind, reflects well on him.

27. I would comment that even though the Tribunal member was not satisfied as to the Applicant's credibility, my own assessment of the Applicant during the time he was before me and the oral submissions that he made, which were partly in English but largely in Arabic, did not give me any untoward feeling about this gentleman's credibility at all.  Indeed, in my brief observation of him he struck me as a person who was endeavouring to do as best he could and deal as forthrightly as he could in the proceedings before me.  This does not mean that I can overturn the Tribunal's credibility finding, I do not have the power to do so. But it is fair to say that my own observations of his credibility are somewhat more favourable than that of the Tribunal member.

28. In the circumstances and bearing in mind the unfortunate situation that seems to have occurred to this Applicant, and bearing in mind the actions that he is taking, apparently to assist the Department in necessarily legal action, these may well be matters that should persuade the Minister that there are circumstances which presumably have not been considered before to give some consideration to substituting a more favourable decision than the Tribunal decision under the provisions of s.417 of the Act. I have no power to oblige the Minister to do so as the Minister's power is entirely a matter for the Minister's discretion. It seems to me, however, that there are matters that, if presented to the Minister, may persuade the Minister that there are circumstances to allow her to exercise her discretion in the Applicant's favour.

1. I cannot recall a time that I have previously made a recommendation to the Minister in this way, but it seems to me that the facts outlined here by the Applicant and the Applicant's presentation are sufficient for me to consider making such a recommendation.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  20 December 2005