SZGGX v Minister for Immigration
[2005] FMCA 1643
•13 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGGX & ORS v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1643 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision handed down on 25th January 2000 affirming decision of a delegate of the Minister not to grant a protection visa – applicant is of Chinese ethnicity and of the Christian religion – procedural fairness – no requirement to provide applicant with copies of independent country information. PRACTICE & PROCEDURE – Litigation guardian – third and fourth applicants are children aged 10 and 7 years – no separate claims – delay – where application for Order nisi dismissed by Federal Court in February 2004 but applicants did not file an application in the Federal Magistrates Court until 12 May 2005 – application to Minister under s. 417 of the Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.417, 424A. |
| S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289 SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FMCA 284 SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1528 S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| First Applicant: | SZGGX |
| Second Applicant: | SZGGY |
| Third Applicant: | SZGGZ |
| Fourth Applicant: | SZGHA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1221 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 October 2005 |
| Date of Last Submission: | 13 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 13 October 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr Mitchell |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
I dispense with the requirement of a litigation guardian for the third and fourth Applicants.
The application is dismissed.
The first Applicant is to pay the first Respondent’s costs fixed in the sum of $5,000.00 and I will allow (9) nine months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1221 of 2005
| SZGGX |
First Applicant
And
| SZGGX |
Second Applicant
And
| SZGGX |
Third Applicant
And
| SZGGX |
Fourth 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. The decision was made on 25th January 2000 and was handed down on that day. The decision of the Tribunal was to affirm a decision of a delegate of the Minister not to grant protection visas to the four applicants. The applicants seek a review of that decision.
There are four applicants: a husband; wife; and their two daughters. One of the daughters was born in Jakarta, Indonesia; the other one was born in Sydney. The two children attend school in Sydney and speak English.
The father attended the hearing of the Refugee Review Tribunal and gave evidence. That hearing took place on 10th November 1999.
The applicant's wife, the second applicant, and the two children did not take any part in the proceedings before the Refugee Review Tribunal. The Tribunal asked the husband, the first applicant in these proceedings, if the wife was going to give evidence that day or whether the husband was going to do it alone. The husband said that he would be giving evidence alone, and the transcript of the proceedings showed that that is the case. It is the first applicant, the husband, who has brought these proceedings and, even though all four parties are applicants, it is only the husband who has played an active role in these proceedings. For that reason, I decided that the third and fourth applicants, the two little girls, did not require a litigation guardian and I did not require them to remain in Court during the hearing this afternoon.
The application for review was filed on 12th May 2005. There are, in effect, two grounds: first, the applicant says that he, and the other applicants, did not receive procedural fairness because the Tribunal failed to provide copies of, or otherwise put to the applicant, contents of reports from the Department of Foreign Affairs and Trade dated from April and November 1999, which were relied upon to find against the applicant. As a result, the applicant husband said that he was not given the opportunity to respond to those matters.
The second ground, also based on procedural fairness, relies on a failure to put to the applicant that the risk of persecution in Indonesia at the time of the hearing in November 1999 was small due to positive developments that had taken place in Indonesia. Those developments involve the coming into power of the then President, Abdurrahman Wahid, and Vice-President, Megawati Sukarnoputri.
The finding was that the outlook for people in the position of the applicants, ethnic Chinese Indonesians, had improved as a result of those political developments. The applicant says there was a denial of procedural fairness by not being given an opportunity to respond to that.
I have made it clear to the applicant husband today that the Court can only consider the situation as it was at the time that the Refugee Review Tribunal made its decision. The Court cannot, for instance, consider evidence about the situation that may have occurred since then, or the current situation in Indonesia. As those matters were not before the Tribunal, the Court cannot receive evidence about them now.
In any event, a Court conducting judicial review does not re-examine the facts of the case and substitute its own conclusion on the facts for the conclusion arrived at by the Refugee Review Tribunal.
Factual decisions are essentially a decision for the administrative decision maker, in this case the Refugee Review Tribunal.
The decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 sets that out quite clearly.
Looking at the applicant's first claim, namely that the applicants did not receive copies of the reports from the Department of Foreign Affairs and Trade that were used by the Refugee Review Tribunal. It is clear from the decision that those reports relied on by way of independent country information - the April 1999 report was a comment on the situation of ethnic Chinese Indonesians and the Tribunal quoted from that report at pages 86 and 87 and 88 of the Court book. There were various parts of the April 1999 report which provided some assistance to the applicants in their claim. The report said, in part:
Ongoing unrest in Indonesia poses a risk to the physical wellbeing of ethnic Chinese Indonesians. Other ethnic groups within Indonesian society also face potential physical threat as a result of social unrest.
The report goes on to say that:
Harassment in various Indonesian ethnic groups outside their ethnic home territory is not uncommon, but the victims of such actions can often secure refuge by relocating within Indonesia although this represents a major dislocation to their lives as migrants from outside the Archipelago internal relocation is not as viable an option for the ethnic Chinese. There are no permanent safe havens for Sino-Indonesians. However that said some parts of Indonesia have a reputation of being more accepting of Sino-Indonesians, for example Pontianak in West Kalimantan where in civil unrest in recent years only Malays, Madurese and Dayaks have been involved in inter-communal violence even though there is a large Sino-Indonesian population. Other regions include Bali. The practicalities of a Sino-Indonesian relocating to such places at relatively lower risk however are complicated.
The material that was used by the Refugee Review Tribunal in its decision was material that was quite clearly about a class of persons of which the applicants are members. It is not material that is specifically about the applicants. There is no obligation under s. 424A of the Migration Act to provide the applicant with copies of documents containing that information. That information comes within the exception referred to in s. 424A (3) (a) of the Migration Act.
The other claim by the applicants that the Tribunal did not put to the first applicant a reduction in the risk of persecution due to the positive developments in Indonesia is one that is not supported by the transcript of the proceedings. A transcript of the proceedings of 10th November 1999 has been annexed to an affidavit of Sharon Elizabeth Hanstein, solicitor, sworn on 30th August 2005. I have had the opportunity of reading through that transcript. It is quite clear that the Tribunal member asked the applicant a considerable number of questions about being ethnic Chinese and particularly about the difficulties of being a Christian in a predominantly Muslim country. The Tribunal member asked the applicant about matters relating to the Christian religion which the applicant seemed to be able to understand and answer.
The applicant told the Tribunal about relocating from Jakarta to the Island of Bali and again finding it difficult to practise his religion in Bali whilst the Balinese citizens are not normally Muslims, being mostly Buddhists and Hindus, the applicant did not find that Bali was an area that he was still able to practise his Christian religion and found Bali was again a difficult place to be of Chinese ethnicity.
The applicant told the Tribunal that:
Indonesia is a hell.
I do note that the Tribunal member did raise with the applicant the beliefs and the moderate political views of Abdurrahman Wahid and Megawati Sukarnaputri. At page 14 of the transcript at line 8 the Tribunal member says:
Well in fact Mr Wahid is known to be a very moderate man and he has indicated his support for the Chinese minority in Indonesia. Although he is the leader of Muslims he has used his influence to promote sectarian and social tolerance and his support for tolerance goes back some years. It's not just something he's saying now. And of course, Sukarnoputri is actually said to be a friend of the ethnic Chinese and she is the Vice-President.
I will end the quote there. The applicant replied:
I heard from friends about churches in Sitibundo being burnt, also in Banyuwangi. Now there is no guarantee for the future for Chinese and Christians in Indonesia. I would ask the Australian Government to give some consideration and to take mercy on myself and my family and to give us the permission to stay in Australia. For me Indonesia doesn't exist any more.
In my view, the information about the political changes in Indonesia at that time were put by the Tribunal member to the applicant and the applicant was given an opportunity to answer those matters.
There remains one other issue that the applicant raised today, that relates to difficulties that he had at the hearing itself. He was able to put matters to the Tribunal and he did have an interpreter. He said that he was confused and had not been to a hearing before. The applicant did say to the Tribunal member that he was having a little bit of trouble understanding the questions through the interpreter and at page 2 he said that the interpreter was speaking too fast. He said that he would like the interpreter to speak a little slower. It was certainly clear that the applicant did report that he was having some difficulties giving evidence through an interpreter.
The applicant speaks some degree of English and addressed the Court occasionally in English today. He is, of course, giving evidence through an interpreter and I note that he has not complained about any difficulty in dealing with Court proceedings through the services of the interpreter provided by the Court. Now, it may be that the interpreter, who assisted at the Refugee Review Tribunal November 1999 was not possessed of quite the same degree of fluency as the interpreter that we are fortunate and able to have in the Court today, who is a most experienced and competent interpreter from Bahasa Indonesia into English and vice versa.
Nevertheless, on having read the transcript of the Refugee Review Tribunal hearing, and being mindful of the difficulties parties can experience in giving evidence about important matters affecting their lives through an interpreter and without the benefit of legal representation, I am satisfied that the applicant was able to put his case and was able to understand the issues that were being raised by the Tribunal member.
I am not satisfied that the applicant was under such a degree of difficulty through having the evidence interpreted that the proceedings would be regarded as unfair. In fact, in the passages that I have previously quoted, it is clear that the Tribunal member was conscious of the need to ensure that the applicant was given assistance with interpreting and went to some trouble to ascertain that the applicant was able to understand, particularly as the applicant asked for the interpreter to speak a little bit more slowly. It appears therefore that the grounds of review raised by the applicant will not be successful.
There is another issue to which it is necessary to refer at this stage, and that is the issue of delay. This is a decision that was handed down on 25th January 2000. The applicants did not file their application in this Court until 12th May 2005. The Court is well aware that delay is a reason for a Court to refuse relief by means of a granting of a constitutional writ. I am mindful of the decision of the Full Court of the Federal Court in S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283, and the decision of McHugh J of the High Court of Australia in Re Commonwealth of Australia and Anor; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491. The issue has also been dealt with in this Court in SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FMCA 284, which decision was affirmed on appeal in SZCTH v Minister for Immigration & Indigenous Affairs [2004] FCA 1528.
The Federal Magistrates Court in SZCTH (supra) referred to the decision of Re Commonwealth of Australia: Ex parte Marks (supra) and commented that:
McHugh J in Marks could not see how an extension of time could be granted to a person who with knowledge of a decision delayed 17 months before seeking relief unless some conduct of the public body had brought about the delay. Indeed for McHugh J no applicant who delayed for more than a year would obtain an extension of time.
The Federal Magistrates Court commented that the case before it in SZCTH, the delay was six years and nine months.
In this case, whilst there is a delay, part of the delay has been explained. I note that a chronology entitled "Procedural History" appears in the outline of submissions prepared by Mr Mitchell of counsel and who appears for the respondent Minister. In that chronology, which I must say I found very useful, Mr Mitchell points out that the decision of the Refugee Review Tribunal was made on
25th January 2000 and on 11th February 2000 the applicants joined the Lie class action in the High Court of Australia. On 29th May 2003, the High Court remitted the proceedings to the Federal Court of Australia before ordering that the applicants were to file an individual application.
When the application was transferred to the Federal Court of Australia, it came again before the Court on 20th February 2004. The application was dismissed by Emmett J in the Federal Court, the reference being Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289. It is well known that a number of matters were dismissed by the Federal Court in that case because the applicants had not taken the appropriate steps that they were required to do when the proceedings were remitted by the High Court to the Federal Court.
In my view, from 25th January 2000 until 20th February 2004, there is an explanation for the lapse of time. By the applicants joining the Lie class action on 11th February 2000, less than a month after the Refugee Review Tribunal handed down its decision, there was clearly no delay and the question of delay does not arise again for the purpose of these proceedings until after 20th February 2004.
In the respondent's outline of submissions, the submission is made that the delay between 20th February 2004, which was the date that Emmett J dismissed the applicant's application for an order nisi, and
12th May 2005, being the date that the applicants filed their application under s.39B of the Judiciary Act in this Court it is a ground for the Court to refuse relief in the exercise of its discretion. In that situation, counsel for the respondent relies on the decision in the Federal Magistrates Court in SZCTH v Minister for Immigration (No.2) (supra), to which I have previously referred, noting that that matter was, in fact, upheld on appeal.
What happened is that the applicants sought other legal advice. They made a request on 16th March 2004 to the Minister to make a more favourable decision under s.417 of the Migration Act. That application was refused on 5th April 2004.
In my view, an application to the Minister under s.417 of the Migration Act is not an explanation for delay in commencing the Court proceedings and I refer to the decision of Merkel, Conti and Ryan JJ in S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283.
In any event, the time taken to submit the request to the Minister to make a favourable decision under s.417 of the Migration Act and the refusal of the Minister to do so was only a small part of the time delay between the dismissal of the Federal Court proceedings and the filing of the application in this Court. The application was dismissed by Emmett J on 20th February 2004. By 5th April of that year, the Minister had refused to exercise power to make a more favourable decision under s. 417 of the Migration Act. There is no explanation for a delay of more than a year between 5th April 2004 and the filing of the application on 12th May 2005.
It is, of course, the situation that the applicants, or at least the adult applicants, were aware of the date of the handing down of that decision. Emmett J, in dismissing the application on 20th February 2004 had these words to say:
Any delay from the time of the making of the decision by the Tribunal and the joinder of the applicant in the High Court proceedings would still remain to be explained. So would any delay from the time of refusal of an order nisi until the commencement of any fresh proceeding.
In my view, the delay of more than a year since the dismissal of the proceedings in the Federal Court, even if I were not to count the relatively short period of time involved in the application to the Minister, is still in excess of a year and as such, would be sufficient to require the Court not to exercise a discretion to decline to grant any relief by way of constitutional writs.
As the Full Court of the Federal Court said in S58 of 2003 (supra), paragraph 21:
In all the circumstances in my opinion it would be quite wrong even if the applicant has a good case on its merits for constitutional relief and notwithstanding the possible importance of the case to him, sanction such a long and poorly explained delay. Where there is a formal time limit I would not extend time to permit him to claim the relief sought. Further I would as a matter of discretion decline, on the ground of the applicant's long and unsatisfactory explained delay, to grant any relief to which he might otherwise be entitled.
In my view, a delay in excess of a year is sufficient to entitle the Court to refuse to exercise a discretion to grant relief even if the Court were satisfied that grounds had otherwise been made out. In my view, grounds have not otherwise been made out. Whilst this is an unfortunate decision as far as the applicants are concerned, in my view, the law does not permit any other decision. I must therefore dismiss the application.
There is an application for costs. The first respondent Minister seeks an order for costs in the sum of $5,000.00 inclusive of counsel's fees. That is calculated on a party and party basis.
The applicant husband says that he is not working and in fact is reliant for assistance on the kindness of a neighbour and of the church.
The applicants have been unsuccessful in their case and the fact that the applicants are impecunious is not of itself a ground not to make a costs order in favour of the successful party. It is certainly a ground that would be considered as far as time to pay is concerned.
I note that there are four applicants: two of them are children; one of them is the wife and the children's mother. It is only the first applicant who has played an active part in the proceedings before the Refugee Review Tribunal and in the proceedings before this Court. If the first applicant is not in employment and has no funds, it is likely that the second applicant, his wife, is in a similar state and the two little girls, being school girls, quite clearly have no funds.
Bearing in mind that the second, third and fourth applicants are parties who have played no independent part in the proceedings and their claims are dependent on the claim of the husband and father, the first applicant, it would be, to my mind, unduly punitive to make an order for costs against the second, third and fourth applicants. It would not, to my mind, benefit the first respondent in any way.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 2 November 2005
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