SZGFR v Minister for Immigration
[2005] FMCA 1722
•10 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGFR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1722 |
| 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 – applicants are citizens of Indonesia – where applicants did not attend the RRT hearing – relocation – delay. PRACTICE & PROCEDURE – Notice of objection to competency – privative clause decision – where application filed more than 28 days after the applicants were notified of the decision – where applicants were notified of the RRT decision on 13th March 2001 but application for review not filed until 6th May 2005 – where second applicant is a child aged 9 years. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth) |
| Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 Daniel v Minister for Immigration & Multicultural & Indigenous Affairs & Ors [2004] FCA 21; (2004) ALR 198 Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 Naguit & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 930 R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 Soetanto, Ex parte; Re Minister for Immigration & Multicultural Affairs & Ors S86/1999 Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054 The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 |
| First Applicant: | SZGFR |
| Second Applicant: | SZGFS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1169 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 27 October 2005 |
| Date of Last Submission: | 27 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 10 November 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Parish Patience |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
That leave is given to join the Refugee Review Tribunal as a party to the proceedings.
That the Refugee Review Tribunal is joined as second Respondent.
The Court dispenses with the need for a litigation guardian for the second Applicant.
The application is dismissed.
The first Applicant is to pay the first Respondent’s costs fixed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1169 of 2005
| SZGFR |
First Applicant
| SZGFS |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS |
First Respondent
| 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 19th February 2001 and handed down on
13th March 2001. The Tribunal decided to affirm the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant protection visas to the Applicants.
Background
The Applicants are a mother and her son. The son was born on
22nd November 2005, so he is not yet ten years of age. They are citizens of Indonesia. The Applicants arrived in Australia on
11th February 2000 and applied for protection (class XA) visas on
10th March 2000. A delegate of the Minister refused their applications on 20th March 2000, so the Applicants applied to the Refugee Review Tribunal for review of that decision on 19th April 2000.
The Tribunal wrote to the Applicant mother and asked her to attend a hearing and give evidence on 16th February 2001. The Applicant mother did not attend the Tribunal hearing. As the letter sent by registered post had not been returned, the Tribunal proceeded under the provisions of s.426A of the Migration Act 1958 and made its decision on the review without taking any further action to enable the Applicants to appear before it.
The Tribunal’s decision
The Tribunal noted the Applicant mother’s claim that she is a Christian and fears violence affecting Christians and Christian churches by Muslim mobs. The Applicants had resided in Bandung, in Java.
The Tribunal referred to independent country information that the authorities in Indonesia are committed to preventing or controlling outbreaks of religious violence and found that the evidence before the Tribunal did not suggest a systemic denial of protection to Christians or other non-Muslims in Indonesia.
The Tribunal found that the Applicants could return to Bandung and practise their religion freely there, or could relocate to Jakarta, or to Bali, where there is not a large Muslim population. The Tribunal found that it was reasonable to expect that the Applicants could relocate within Indonesia to escape persecution.
The Tribunal affirmed the decision not to grant protection visas to the Applicants. The Tribunal made its decision on 19th February 2001 and handed that decision down on 13th March 2001. The Tribunal posted a copy of that decision to the First Applicant mother under cover of a letter dated 13th March 2001.
The application to the Court
The Applicants filed their application at this Court on 6th May 2005.
At that time, they were both inmates of the Immigration Detention Centre at Villawood, NSW. Filed with the application was an affidavit by the First Applicant, the mother, affirmed on 4th May 2005. In that affidavit, the First Applicant stated that when the Minister refused her application for a protection visa she sought a review of that decision with the aid of a migration agent. When the Refugee Review Tribunal affirmed the decision of the delegate of the Minister, the First Applicant set out in her affidavit the following:
The migration agent should be (sic) lodged an application for my appeal to the Federal Court so I think migration agent did not appeal for me that why I stay in Australia unlawful as well I lodge an application to appeal out of time.
I have not receipt (sic) a letter from Minister to reject my humanitarian visa ground under s. 417 Migration Act 1958.
The Applicants have since obtained legal advice and have been released from Villawood, but they are part of the community-based detention program.
The Applicants have now filed an amended application seeking the following:
a)A writ of prohibition directed to the First Respondent Minister;
b)A writ of certiorari directed to the Second Respondent Refugee Review Tribunal;
c)A writ of mandamus directed to the Second Respondent Tribunal to rehear and redetermine the Applicants’ application;
d)A declaration that the decision of the Second Respondent Tribunal is null and void; and
e)Costs.
The Applicants rely on the grounds that the Tribunal failed or constructively failed to exercise its jurisdiction under the Act and/or committed error of law in making the decision. The Applicants give the following particulars:
a)The Tribunal failed to consider a material claim made by the Applicants, in that the First Applicant’s inability to practice her religion because of her inability to attend church was in itself serious harm capable of amounting to persecution.
b)The Tribunal failed to apply the correct tests at law, being the “real chance” test;
c)The Tribunal failed to apply the correct test at law on the question of effective state protection; and
d)The Tribunal failed to apply the correct test at law on the question of internal relocation and failed to issue a mandatory notice under s.424A of the Migration Act.
Delay
The First Applicant also filed an affidavit dated 27th October 2005 in which she set out the reasons for the delay in bringing the proceedings before the Court. She was not required for cross-examination on her affidavit and her affidavit was admitted without objection.
She deposed that throughout her case she had relied on the advice of her lawyers and migration agents. She wanted to attend the RRT hearing in 2001 but her migration adviser at the time, Se Sen Lioe, told her not to attend. Se Sen Lioe was subsequently subject to cancellation of his registration as a migration agent by the Migration Agents Registration Authority for the reasons that he was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance and had repeatedly breached the Code of Conduct.
The First Applicant consulted a lawyer, one Adrian Joel and it appears that she was taking part in a class action in the High Court of Australia. She does not specify when she instructed Mr Joel to act for her but she deposed that she had paid him some money for costs in October 2002 “and also at the beginning of the case”.[1]
[1] Affidavit of First Applicant 27 October 2005 paragraph 4.a
Mr Joel asked the First Applicant for further money on account of costs in November 2002 but she could not pay him because she was no longer working. She deposed that she heard nothing further from him after that and was not told that her case was dismissed on
20th June 2003.
The First Applicant deposed that she learned in November 2002 that her Bridging visa had been cancelled in October 2002 and that she was liable for immigration detention and potential removal from Australia. She states at paragraph 4.d of her affidavit:
I knew that my bridging visa had been cancelled. I was terrified of being returned to Indonesia because I was afraid of suffering the harm that was the basis of my protection visa application.
I was also afraid for my son, who is the second applicant in these proceedings.
The Applicants were detected by officers of the Department of Immigration and were taken into immigration detention on
23rd October 2004. The First Applicant then sought the assistance of another migration agent, who lodged an application with the Minister for consideration of a more favourable decision under the provisions of s.417 of the Migration Act 1958 (Cth). That application was lodged on or about 30th October 2004 and refused on 5th May 2005. The following day the First Applicant filed her application at the Federal Magistrates Court.
The First Applicant sets out her case that relief should not be denied to her on discretionary grounds at paragraph 4.h of her affidavit:
At no stage did I accept that the RRT decision was correct. Since it was handed down I have taken active steps to overturn the effects of it on my entitlement to protection in Australia. I believe that both before and after the RRT hearing, I have been the victim of negligent, and in some respects, unethical advice from my lawyers and migration agents. The period of inaction between 21st June 2003 and 29th October 2004 was a result of my great fear of being returned to persecution in Indonesia. I had my son with me, and I was motivated out of concern for his welfare as well.
In a comprehensive outline of submissions, the Applicants’ solicitor, Mr McNally, addressed the issue of delay by pointing to the jurisdictional errors that he submits can be found in the Tribunal’s decision. He refers to the recent decision of the High Court in
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs[2005] HCA 24, and submits that where there has been a breach of the statutory procedural fairness required under s.424A of the Migration Act, relief should not be withheld unless the conduct of the Applicants warranted the refusal of the exercise of discretion.
In SAAP v Minister for Immigration & Multicultural & Indigenous Affairs, McHugh J said at [84]:
If the decision of the Tribunal is invalid for want of procedural fairness, there is no reason to withhold discretionary relief. There is nothing to suggest that the conduct of the appellants warrants the refusal to exercise the discretion. There is no suggestion of delay, waiver, acquiescence or unclean hands.
Similarly, the Applicants’ solicitor submits that they should not be denied relief on discretionary grounds in this case. In his submissions to the Court, Mr McNally said that from the date the Applicants were notified until 20th June 2003 the Applicants were effectively part of the class action in the High Court. There was then a 16 month delay until 30th October 2004, when the Applicants made an application to the Minister under s.417. The First Applicant was scared because she knew that she and her son were liable for deportation. At no time did she accept the RRT decision or acquiesce in it.
He submitted that the First Applicant was never told about the orders that resulted in the dismissal of the class action. If the solicitor ceased to act, he did not tell the First Applicant about it. If he remained on the record, he did not tell her about the self-executing orders.
The Applicants’ solicitor referred to the decision of Merkel J in Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054 at [27] – [30], where it was held at [27]:
There is nothing …that would require prohibition to be regarded as ancillary to mandamus. Rather, prohibition is a primary remedy under s. 75(v) (see Aala at 90 [13]) and it would be erroneous to dismiss a proceeding in which prohibition is properly sought against the Minister on the ground that the writs of mandamus and certiorari, which are also sought, are out of time. Indeed, there may be little utility in dismissing claims for mandamus and certiorari under s. 75(v) for being out of time, leaving extant a claim for prohibition because, if prohibition is granted because there is jurisdictional error, the Tribunal remains under a duty to hear and determine the applicant’s application for a substantive visa according to law, and the invalid decision will have no legal effect.
The Applicants’ solicitor also referred the Court to the decision of Gummow J in Soetanto, Ex parte; Re Minister for Immigration and Multicultural Affairs & Ors S86/1999 (21st September 1999), where the Court said at page 7:
The applicant’s delay is sought to be explained first by the inaccurate advice he was given by a migration agent, then retained by him, and secondly to his pursuit of other avenues of redress, in particular, an attempt to have the Minister substitute a decision under s. 351 of the Act and the joining by the applicant in a class action in the Federal Court. This ultimately was unsuccessful and, in any event, as appears from the materials before me, did not focus upon his particular complaint…
The respondent does not dispute that there is a ground of some substance for the application if the applicant were to overcome the hurdle of delay. The matter is one very close to the line but having given the best consideration I can to the facts as they appear from the affidavits of the applicant, sworn
17th September 1999, and from his present solicitor, Mr Dobbie, sworn 31st May 1999 and field on 7th June 1999, I think there is sufficient to enliven an exercise of discretion in favour of the applicant for relief. To put it more accurately, the circumstances are not such as to disqualify, at this stage, the applicant from pursuing the remedy he seeks.
The solicitor for the First Respondent Minister, Mr Cox, told the Court that a Notice of Objection to Competency filed in these proceedings was not relied upon. He submitted that the delay relied upon by the Respondents was from 21st June 2003 to the filing of the current application in the Court. The Respondents do not agree to subtract the period of time taken up by the application for Ministerial intervention from the period of delay.
Mr Cox submitted that the delay is quite considerable, from
20th June 2003 to May 2005, one month short of two years.
Principles
The 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 (see 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).
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 495-6).
Conclusions
There are two periods of delay that the Applicants need to overcome. The Respondents do not seek to argue that the period of time from the notification of the RRT decision to the dismissal of the applicant’s application in the Federal Court should be considered as part of the delay.
The Applicants have to deal with, first, the period from 21st June 2003 until 29th October 2004, when the Applicants were in detention; and, second, the period from 30th October 2004, when the Applicants sought Ministerial intervention under s.417 of the Act.
The Applicants rely on the decision of Gummow J in Ex parte Soetanto (supra) to support their contention that the period involved in the application to the Minister under s.417 should be included in the period of delay. I am not persuaded that the decision is necessarily authority for that proposition. I consider that Soetanto can be distinguished on its facts.
In my view, the decision in Daniel v Minister for Immigration and Multicultural and Indigenous Affairs and Others [2004] FCA 21; (2004) 205 ALR 198 at [14] is persuasive. In that case, an applicant had delayed for 9 months. During that time he had written to the Minister asking the Minister to exercise his power under s.417 of the Act. His Honour said at [14]:
The taking of that course of action by the applicant is indicative of a decision by him to abandon any course that would seek to challenge the decision of the tribunal on grounds available under the Act or otherwise at law.
I agree with the Respondents’ contention that the period from
30th October 2004 to 4th May 2005 should be considered as a period of delay.
With respect, I disagree with the Applicants’ interpretation of Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs (supra), at [27]. In my view, the proper construction of construction of the passage quoted:
And it would be erroneous to dismiss a prohibition in which prohibition is properly being sought against the Minister on the grounds that the writs of mandamus and certiorari, which are also being sought, are out of time.
can be better understood when considered in context. As McHugh J noted in Re Commonwealth of Australia & Anor: Ex parte Marks (supra), there are times set out in Court Rules for the bringing on applications for writs of certiorari and mandamus:
The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought..[2]
[2] at [16]
In Thayananthan (supra) at [27], Merkel J noted that in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, the High Court, having decided prohibition was an appropriate remedy, extended the time for the bringing of an application for certiorari, which was in aid of prohibition.
Delay in bringing a proceeding for prohibition is not irrelevant Thayananthan at [28]). Relief under s.75 (v) of the Constitution is discretionary (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 395 and Re RRT; Ex parte Aala (supra) at 92. I note that the period of delay in Aala was less than five months.
In the case before this Court, the Applicant mother has to explain a period of delay from 21st June 2003 to 29th October 2004. She was aware that bridging visa had been cancelled in October 2002 and she took no steps to regularise that situation. Fearing removal from Australia, she did nothing to draw the attention of the authorities to herself until she was detected and taken into immigration detention for being an unlawful non-citizen.
A person who, knowing that he or she is an unlawful non-citizen, does nothing to remedy the situation and remains out of sight for 16 months until detected by the immigration authorities cannot be heard to claim a fear of being removed from Australia as a reasonable explanation for delay.
The Applicant mother’s unwarrantable delay in bringing proceedings for one year and ten months is not satisfactorily explained. It is a sufficiently lengthy delay to disqualify her from discretionary relief.
The Application will be dismissed with costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 17 November 2005
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