SZFYX v Minister for Immigration
[2005] FMCA 1602
•3 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFYX v MINISTER FOR IMMIGRATION | [2005] FMCA 1602 |
| MIGRATION – Refugee – claims of persecution based on political opinion – unwarrantable delay – application dismissed. |
| Australian Constitution, s.75(v) Federal Magistrates Court Rules 2001, r.21.02(2)(a) Judiciary Act 1903, s.39B |
| Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 R v Australian Broadcasting Tribunal; Ex parte Fowler and Ors (1980) 31 ALR 565 Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 Minister for Immigration and Multicultural and Indigenous Affairs and Anor; Ex parte Applicants S134/2002 [2003] HCA 1 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Re Commonwealth of Australia and Anor; Ex parte Marks [2000] HCA 67 |
| Applicant: | SZFYX |
| Respondent: | THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 753 of 2005 |
| Delivered on: | 3 June 2005 |
| Delivered at: | Sydney |
| Hearing date: | 3 June 2005 |
| Judgment of: | Nicholls FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms. L Clegg |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed on the basis of unwarrantable delay.
The applicant to pay the respondent’s costs set in the amount of $4500 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 753 of 2005
| SZFYX |
Applicant
And
| THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Ex tempore: revised from Transcript)
This is an application filed in this Court on 24 March 2005 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 December 2001 and handed down on 24 January 2002 to affirm the decision of a delegate of the respondent Minister made on
18 May 2001 to refuse a protection visa to the applicant.
The applicant is a national of Fiji who arrived in Australia on 10 May 1998 and on 15 February 2001. He lodged an application for a protection visa. He gave as the reason for fearing harm in Fiji as being (Court Book (“CB”) 19):
“Because of what I am doing helping and committing myself to the community outside my country territories the country may disown me”
He further said:
“I believe that I will be expelled because of my activities outside the country they may think I am involved in a bigger activity"
His application for review by the Tribunal is reproduced at CB 37 to CB 40. At CB 39 he gives as his reasons for making the application for review:
“I disagree with the Department’s decision as I know that my application has a case and is true. Kindly consider and really read my application and decide.”
The applicant also submitted to the Tribunal, reproduced at CB 41 to CB 43, a statutory declaration, covered by a letter from him. This was a statutory declaration by a Sepesa Sigatokaicake, which raised matters additional to those already put by the applicant. It provided statements about the applicant being frightened of what may happen to him on return to Fiji because of his family having been “tarnished” due to incidents arising out of the political coup in Fiji in 2000. He claimed that the applicant’s family faced criticism and verbal, and even physical, abuse from fellow villagers, relatives and members of the community because of the actions of his uncle who was involved in the coup. He goes on to say that the applicant was in Australia on a student visa when the coup occurred in the 2000, that he was not linked to the “criminal” and that he should not be incarcerated for the actions of a relative, which is what would happen to him if he were to return to Fiji.
On 2 November 2001 the Tribunal wrote to the applicant (CB 44 to CB 45) and advised that it had looked at the material relating to his application, was not prepared to make a favourable decision on this information alone. It invited the applicant to come to a hearing with the Tribunal to give evidence and present arguments. The Tribunal provided a hearing date and time, and noted that if the applicant did not attend the hearing and the hearing was not postponed by the Tribunal, the Tribunal may make a decision on the applicant's case without further notice. The letter was sent to the applicant at his home address which was the only address provided by the applicant in his application for review. This address was also given as his address for service (CB 38). The letter was also sent to the applicant’s migration advisor as notified by the applicant in his application (CB 38). The letter and “Response to Hearing Invitation” form sent to the applicant's adviser was returned to the Tribunal as undeliverable. The letter sent to the applicant was not so returned. The applicant did not respond to the Tribunal’s letter. Nonetheless, the Tribunal made further efforts to contact the applicant which were unsuccessful (CB 51.4). The Tribunal then proceeded to determine the application on the material before it. I also note relevantly, as submitted by Ms. Clegg for the Minister, that at CB 48 a letter from the Tribunal is reproduced, dated 24 January 2002 and addressed to the applicant, sent to the applicant's address as provided by the applicant in his application to the Tribunal with a copy sent to his migration adviser. The letter advised the applicant of the Tribunal’s decision to affirm the refusal of the protection visa and relevantly, as will become clearer in the context of the application before me today, the Tribunal specifically directed the applicant's attention to the right of review before the Federal Court, this Court, and specifically underlined that there are strict time limits within which an application for review by the Courts must be filed. The letter further strongly advised the applicant to seek legal advice if he was wishing to seek review by the Courts.
Before me today Ms. Clegg for the respondent sought dismissal of the application on the basis of unwarrantable and unexplained delay or in the alternative that there was no jurisdictional error in the Tribunal’s decision. The applicant appeared before me unrepresented although I note however, that he sought access to the Court's Legal Advice Scheme and was referred to a lawyer on the panel of that scheme. The applicant confirmed that he had received this legal advice.
At the hearing before me today the applicant requested an adjournment of the hearing. He indicated that this was “due to a medical procedure that is in progress at the moment. I think I need to go for an operation.” He further indicated that “I’ve got medical conditions at the moment where I can’t hear well and also my physical health is not quite up to scratch.” The applicant further appeared to indicate that the reason why he had thus far been unable to secure relevant documents that he wanted to put before the Court was because he had been unwell. The applicant indicated that these documents related to the coup in Fiji and his uncle’s involvement. I explained to the applicant that documents of this type would not assist the applicant before this Court as on what he had said they appeared to be relevant to the merits of the case only. When pressed again about how his health may affect his ability to pursue his case before the Court, the applicant indicated that his health problems related to his ear and the fact that he could not “hear well” and that “my physical health is not quite up to scratch”. He indicated that he had been provided with antibiotics whilst in “Immigration Detention” and that an operation was in the process of being arranged. The applicant was unable to explain in exactly what way his capacity to conduct the hearing before me today would be affected. The applicant had earlier sent a letter to the Court making reference to his “ear” situation and attaching medical reports, in particular a letter addressed “To Whom It May Concern” from a medical practitioner, dated 30 May 2005. Ms. Clegg for the respondent submitted that although the applicant had provided a “Doctor’s report” to the Court, that report did not suggest that the applicant would have problems dealing with, and pursuing, the hearing before me today. That report referred to the applicant having stated that he had problems with “sleep, constant panic attacks, depression, worry, fear and embarrassment.” But the medical practitioner who signed the letter stated: “I cannot judge any of those things in relation to his ear problems.” I was unable to see in any of the documentation a basis for the applicant’s statement that his ear problems have caused a problem with his ability to think clearly and conduct the hearing before me today. Nor demonstrably was there any problem in participating in the hearing. In these circumstances, I was not persuaded that there was sufficient material before me to grant the adjournment and as a result an adjournment was refused.
On the issue of delay, it is clear that the relief sought by the applicant is discretionary. He requests that the Tribunal’s decision be set aside and presumably returned to the Tribunal for reconsideration. Ms. Clegg for the respondent referred me to Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. In Aala the High Court confirmed that the constitutional writ of prohibition is discretionary and held that prohibition and mandamus should issue in that case. The respondent has put before me today that in the circumstances as presented it is appropriate that I dismiss the application on account of delay, without deciding the merits of the applicant's case by considering the grounds of review which I note are unparticularised and lack any real specificity. Clearly delay is a discretionary criterion for the denial of the relief sought by the applicant, that of certiorari and prohibition. Also, unreasonable delay may be sufficient to justify discretionary refusal of mandamus: see Aronson and others: ‘Judicial Review of Administrative Action’ Third edition Thomson 2000 Law Book Co. 2004 at page 736 to 737. The application may be dismissed on the grounds of unwarrantable delay and this could be done without deciding the merits of the applicant's alleged grounds of review. R v Australian Broadcasting Tribunal; Ex parte Fowler and Ors (1980) 31 ALR 565 at 570 per Barwick CJ Gibbs, Stephen, Mason and Aickin JJ. It is well accepted that relief under s.75(v) of the Australian Constitution is like prerogative relief generally, and is discretionary: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 at [33] and Minister for Immigration and Multicultural and Indigenous Affairs and Anor; Ex parte Applicants S134/2002 [2003] HCA 1. I also note McHugh J. in the recent High Court decision of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [80]:
“The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant…”
I note that in this case the delay of over three years is very long. The Tribunal’s decision was made on 21 December 2001 and handed down on 24 January 2002 and a copy of the decision was sent to the applicant under cover of letter dated 24 January 2002. The letter was sent to the applicant’s address for service and his migration adviser which in the material before me remained the only two addresses provided by the applicant to the Tribunal. The application to the Court was filed on 24 March 2005.
The applicant has provided no satisfactory explanation for the delay in bringing these proceedings which is well over 3 years. The applicant stated that following the Tribunal's decision, that through his wife he pursued an application for “a different visa” with the Respondent's Department and that he sought to achieve the objective of remaining in Australia by pursuing this other visa application. He claimed that his wife “lodges the application as a carer” but later described it as “my wife lodged on a remaining relative ground.” The applicant stated that he was not familiar with the legal requirements and was “uneducated” about the Court procedures. In this regard I note the Tribunal's letter at CB 48 which provides advice about the legal options available to the applicant and the strict time limits that apply. In this regard I also note that the applicant was able to arrange the services of a migration agent to assist in the application to the Tribunal and was also able to arrange the transmission to the Tribunal of a statutory declaration from a witness in support of his application. The applicant could not explain why the pursuit of this “other avenue” would in any event have prevented him from seeking the relief from this Court that he is now seeking if he was truly aggrieved by the Tribunal’s decision. Further, no clear details, let alone evidence, was provided in relation to this “other visa application” other than that it was “through his wife”. Even further, as I explained to the applicant at the hearing before me, I had some difficulty in accepting this as a sufficient explanation for the delay. I saw it as inconsistent that a protection visa applicant who claimed to be genuine in their refugee claims, claims if which successful amount to serious harm and persecution, would after being refused by the Tribunal, seek to achieve protection in Australia through some other vague avenue through his wife. If he genuinely felt aggrieved by what the Tribunal had done, in what was the very serious issue of refugee claims, which involve both fears for physical safety or even life, that he would not pursue the clear avenue available to him through the Court, which was the appropriate avenue to show legal error in the Tribunal’s decision as he is now alleging, and if successful, return the refugee claims for reconsideration by the Tribunal. In this context I did not accept the applicant’s statement that he was pursuing “another avenue” as a satisfactory explanation for the delay.
The only other explanation that the applicant gave for the long delay in making the application to the Court was that it was “due to his medical condition.” In this regard I note the applicant's statement to the Court that it was “some time in 2003” that he suffered sickness. This certainly does not explain the total period of delay and is not relevant to the period of delay between early January 2002 and “sometime in 2003.”
The applicant also again made reference (although it was not clear in relation to explaining the delay) that he had been unable to obtain “documents.” While again this was primarily raised in the context of requesting an adjournment, to the extent that this may be relevant to the issue of an explanation for the delay, it is clear from what the applicant told me today that the documents related to the merits of his refugee application and there is nothing before me to show that the delay was caused due to the applicant awaiting documents that may assist him in relation to the application before this Court. Nor did he specify exactly what these documents may be.
It is quite clear that caution should be exercised in dismissing cases where an unrepresented applicant is claiming to be aggrieved by a protection visa decision. But, these are circumstances where the delay has been inordinately long, in this case over three years. The applicant was on notice by the Tribunal’s letter of 24 January 2004 that there were “strict time limits within which an application for review by the Courts must be filed.” Further, there is nothing to show why the grounds now put forward, even in their unparticularised state, could not have been put forward earlier, let alone in a timely fashion following the Tribunal’s decision. Even though it has been held, in the context of proceedings in the High Court, that “an applicant’s inability to obtain favourable legal advice is not a ground for extending the time” with which proceedings could be brought (Re Commonwealth of Australia and Anor; Ex parte Marks [2000] HCA 67 per McHugh J at [17]) the applicant before me did commence the proceedings now without representation. He has not explained why he could not do earlier what he has done now. The applicant has been unable to provide any reasonable or satisfactory explanation for the delay, and in these circumstances, and in the absence of any other circumstances to the contrary, it is appropriate that I should proceed to dismiss the application. Accordingly, I dismiss the application on the basis of unwarrantable delay.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Sybilla Waring-Lambert
Date: 14 November 2005
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