SZGAP v Minister for Immigration
[2005] FMCA 892
•22 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGAP v MINISTER FOR IMMIGRATION | [2005] FMCA 892 |
| 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 China – Applicant in Immigration Detention. 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 of the RRT. |
Judiciary Act 1903 (Cth) s. 39B
Migration Act 1958 (Cth) ss. 474, 477
Minister for Immigration and Multicultural and Indigenous Affairs v SGLV (2004) 207 ALR 12
| Applicant: | SZGAP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 841 of 2005 |
| Delivered on: | 22 June 2005 |
| Delivered at: | Sydney |
| Hearing date: | 8 June 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms Allars |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the Application is dismissed.
That the application is not competent as the Court has no jurisdiction.
That the Applicant is to pay the Respondent’s costs fixed in the sum of $6,000.00.
That the operation of these orders is stayed for a period of seven (7) days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 841 of 2005
| SZGAP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal which was both made and handed down on 16 July 1999. The decision of the Tribunal was to affirm a decision of a delegate of the Minister not to grant the Applicant a protection class XA visa.
The Applicant is a citizen of the Peoples Republic of China. She claims that she has a well founded fear of persecution for convention reasons, namely the fact that she is a devotee of the Christian religion. In her application she relies on four grounds. They are as follows:
1. I am a citizen of China who claims to have a well founded fear of persecution for reasons of my religious belief under the Refugee Convention as amended by the Refugee Protocol.
2. The Tribunal failed to take relevant consideration into account to exercising its power to determine the Applicant is a refugee.
3. The Tribunal failed to consider and properly exercise its discretionary power provided under s.427 of the Migration Act 1958.
4. The Tribunal was in error of law in these findings that were open to it from the facts and evidence.
The amended application was prepared whilst the Applicant was an inmate of the Immigration Detention Centre at Villawood. It was filed at the Court on 30 May 2005.
The grounds are extremely vague to say the least. Ground number 1 is not more than a restatement of the facts. Ground 2 appears to be a ground open to the Applicant to claim, namely that the Tribunal failed to take into account relevant considerations, although it is not clear from the application what particular considerations the Tribunal failed to take into account. Ground 3 relates to an allegation of a failure to exercise the Tribunal's discretion to investigate certain matters under s.427 of the Migration Act. The reference to s.420 which appears at one stage is unclear.
The submission was made by Ms Allars of counsel that power given to the Tribunal under s.427(1)(d) of the Migration Act empowers the Tribunal to require the secretary of the Department to arrange for the making of any investigation or any medical examination that the Tribunal thinks necessary with respect to the review and to give the Tribunal a report of that investigation or examination.
Ms Allars submits and I believe correctly that s.427(1)(d) of the Act is permissive and not mandatory. The fact that the Tribunal did not use that facility did not indicate that the Tribunal fell into legal error. The matter has been considered by the High Court of Australia in Minister for Immigration and Multicultural and Indigenous Affairs v SGLV (2004) 207 ALR 12. The Court held that s.427(1)(d) infers a power to obtain information but does not impose any duty or obligation to do so, even if an applicant requests that the Tribunal take oral or written evidence from the witness, the Tribunal is not required to do so.
It follows, therefore, she submits and I believe correctly that the Tribunal has no duty to inquire. There is in fact no basis in the section for any contention that the Tribunal had a duty to do more than it did in obtaining country information.
The Applicant's ground 4 refers to the Tribunal finding falling into an error of law. The Applicant did not provide any particulars as to what that error of law might be. If the ground means anything it would appear to be a challenge to the factual finding made by the Tribunal.
A challenge to a factual finding involves a merits review and that of course is impermissible for a Court exercising the power of judicial review.
The Applicant's affidavit does not take the matter any further. All it does is set out a history of the Applicant's engaging a migration agent in about October 1988 to act for her and waiting for the result of the proceedings.
I am mindful of the fact that the Applicant is not legally represented and I have perused the decision myself in order to satisfy myself whether there is any apparent jurisdictional error. I note that the Applicant arrived in Australia on a visitor's visa in September 1998.
A delegate of the Minister refused her application for a protection visa and she sought a review by the Refugee Review Tribunal.
The Tribunal was not satisfied on the material before it that it could make a decision in her favour so the Tribunal invited her to attend a hearing. The Applicant attended at the hearing and gave evidence with the assistance of an interpreter in the Chinese language. She said that she had come under unfavourable notice from the authorities by reason of her religious belief, having been in fact a member of a particular Christian group called the Shouters. She claims having been arrested and forced to undertake self criticism in 1983, 1985, 1992 and 1996. She said that she fled, obtained a false passport and eventually left for Australia by way of Hong Kong.
The Tribunal after considering her evidence, both oral and written, formed the view that it was not satisfied that her religious beliefs were of the strength that she claimed. At page 71 of the Court book the Tribunal did not find it credible that there was any serious adverse interest in her by the authorities and in my view there is evidence to support that finding and the tribunal was within its power to make such a finding. These are findings of fact. The Tribunal was not satisfied as set out in page 72 that it was credible that the Applicant's son was expelled from school due to perceptions concerning the Applicant's own religious or political attitudes and the tribunal was not satisfied that the Applicant had made out her case.
In my view, both from the Applicant's submissions and evidence and from the independent investigation of the decision which I have undertaken, there is no reviewable error. I am satisfied that the decision by the Tribunal is in fact a privative clause decision.
Having made that finding, I am satisfied that the application is out of time under s.477(1)(a) of the Act. The decision was made and handed down on 16 July 1999. The application was not made until the proceedings were commenced on 6 April 2005 when the Applicant was in a detention centre. The Applicant's explanation that she was waiting to hear from the migration agent as to the result of the decision is difficult to accept.
As the application is out of time I am of the view that the Notice of Objection to Competency filed by the Respondent is in fact appropriate. The application is dismissed. The application is not competent as the Court does not have the jurisdiction to hear it.
I note both from Ms Gray who informed me in open Court and from the Registry that the Applicant is said to be ill. The note I received from the Registry passing on a message is that the Applicant was said to be seriously ill. Ms Gray's information was only to the extent that the Applicant was ill and she was not aware of any more details.
I have no details as to the Applicant's health other than the messages I have received. In the circumstances, however, noting that the Applicant is unwell I propose to stay the operation of these orders for a period of seven days. I require a transcript of my reasons.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 28 June 2005
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