SZGIN v Minister for Immigration
[2005] FMCA 1418
•27 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGIN v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1418 |
| MIGRATION – Refugee – unwarrantable delay. |
| Judiciary Act 1903, s.39B Constitution, s.75(v) |
| R v Australian Broadcasting Tribunal; Ex parte Fowler and Others (1980) 31 ALR 565 at 570 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 |
| Applicant: | SZGIN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1291 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 27 September 2005 |
| Date of Last Submission: | 26 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 27 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms. L. Clegg |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Refugee Review Tribunal is joined as the second respondent in these proceedings.
The application is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $4000, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1291 of 2005
| SZGIN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
This is an application filed in this Court on 19 May 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 September 1998 and notified to the applicant by letter dated 16 September 1998 to affirm the decision of a delegate of the respondent Minister made on 21 June 1997 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.
The applicant who is a citizen of the People's Republic of China arrived in Australia on 11 June 1996 and made an application to the first respondent's Department for a protection visa on 30 September 1996. This was refused on 21 June 1997 and the Tribunal received an application for review of this decision on 25 June 1997. On
8 September 1998 the applicant attended a hearing before the Tribunal and gave evidence. The Tribunal's decision was made, and sent to the applicant on 16 September 1998. The application now before the Court confirms that the applicant was notified of the decision that is the subject of this application on 16 September 1998. The application merely asserts a failure by the Tribunal to consider relevant matters, that it exceeded its jurisdiction and a failure to afford natural justice. The applicant claims that further particulars will be provided, but I note despite orders made at the first Court date in this matter on 2 June 2005, that the applicant file and serve an amended application giving complete particulars of each ground of review relied upon by
12 August 2005, this has not been done. No amended application has been filed to date giving complete particulars. At the hearing before me today the applicant was unrepresented. He was assisted by an interpreter in the Mandarin language. Ms. Clegg appeared for the respondents.The Tribunal's decision was made on 16 September 1998. A copy of this decision and notification of the decision was sent to the applicant on the same day. A copy was also sent to his then adviser (Court Book 59). The application to this Court was made on 19 May 2005, some six years and eight months later. The applicant has provided no explanation for this very lengthy delay in bringing the matter before the Court. I note also that the advice sent to the applicant, and his adviser on 16 September 1998, also contained notification that an application for review must be lodged with the Court within 28 days of notification of the decision. Before me today, when given the opportunity to explain the delay the applicant stated that his agent was handling his matter, that at the time he could not understand English and the agent told him that, “OK if you want to become illegal you can.”
The application before me now may be dismissed on grounds of unwarrantable delay and I note for the applicant’s benefit, that could be done without deciding the merits of the applicant's purported grounds of review (R v Australian Broadcasting Tribunal; Ex parte Fowler and Others (1980) 31 ALR 565 at 570). The applicant seeks an order to quash the Tribunal's decision, and an order by way of writ of prohibition directed to the first respondent from acting upon or giving effect to the proceedings further upon the decision. It is clear that delay is a discretionary criterion for the denial of both certiorari and prohibition. I also note, as Ms. Clegg for the respondent points out in written submissions, that recently in the High Court decision of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, the High Court confirmed the discretionary nature of relief for jurisdictional error. Hayne J, at [211] refers to delay, waiver, acquiescence or other conduct of the appellants which may be said to stand in their way. Kirby J, agreed with the reasons of Hayne J. rejecting any discretionary reason as to why the grounds put forward for refusing relief were unconvincing [174]. In particular, I note McHugh J. 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 or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.”
The delay in this case, of well over 6 ½ years, is clearly unwarrantable. The applicant has put nothing before the Court to explain why he waited for such a great length of time before deciding to commence his case before the Court. The applicant’s statement that the matter at the time of notification of the Tribunal’s decision was in the hands of his agent and that he could not speak English is not a satisfactory explanation for the failure to take any action in the next 6½ years. Further, the applicant’s claim that the agent told him he could become illegal is not an acceptable explanation. The delay, put together with the lack of an explanation, is clearly inconsistent with the application for relief, and I dismiss the application on this basis.
In any event, on the materials before me, I can see no error in the Tribunal's decision such that the relief sought by the applicant now should be granted. I note, as Ms. Clegg in my view correctly submits, that as the application to the Tribunal was made on 25 June 1997 and the decision was made on 16 September 1998, the decision by the Tribunal must be viewed in light of the provisions of the Migration Act 1958 (“the Act”) in force at that time. The amendments to the provisions of Division 4 Part 7 of the Act, which relate to the conduct of review by the Tribunal, commenced on 1 June 1999 (Migration Legislation Amendment Act No. 113 of 1998) (by Schedule 3 of the Amendment Act). Accordingly, the provisions of the Act in force up until 1 June 1999 apply to this decision and therefore the common law rules of procedural fairness apply in relation to how the Tribunal went about reviewing the delegate’s decision.
The applicant’s claims for a protection visa were set out in his application to the first respondent's Department (CB 1 to CB 23), and in a statement reproduced at CB 30 to CB 33. The application for review to the Tribunal is copied at CB 40 to CB 46. The applicant was assisted by a migration adviser during the course of his application before the Tribunal (CB 45). The applicant also submitted written claims to the Tribunal on 14 July 1997 (CB 48 to CB 50). A further updated submission was made to the Tribunal (CB 53 to CB 56). The applicant attended a hearing before the Tribunal on 8 September 1998. The Tribunal's record of the hearing as recorded in its decision record is at CB 65.6 to CB 68.1. The Tribunal summarised the applicant’s claims under the heading in its decision record of “Claims and Evidence”, reproduced at CB 63.4 to CB 68.1. This is summarised in the respondent's written submissions at paragraph 14 and I adopt these submissions for the purposes of my Judgement:
“a) when he was two years old the Communist Party sent his father to work in the South West away from the family. He followed his father there. His mother and brother stayed in Shanghai. He hates the Communist Party for separating his family;
b)he was in Beijing on 4 June 1989 and participated in the Tiananmen Square uprising with the students;
c) when he returned to Shanghai he told a work colleague about what had happened. He was detained by leaders of his work unit for three days from 17 June 1989;
d) he was arrested by the PSB, interrogated and tortured. He was detained for five months. He tried to commit suicide in prison;
e) finally he was released and told by the PSB that they would see how he behaved in the future;
f) as a result of this incident he lost his friends and had difficulties at work (initially his employment was terminated but he managed to stay employed due to the support of a manager);
g) after he was released he established a secret organisation (known as the “Mutual Aid Organisation”) with some friends to stop the dictatorship of the Chinese Communist Party. Its stated purpose was to assist those in trouble. Specifically, it tried to expose people in government and society who were involved in corruption;
h) the organisation formed an alliance with the “Democratic Alliance” in Beijing;
i) the organisation drew attention from the government and after a meeting in March 1996 some of the members were detained by the PSB. They were released several days later;
j) two members of the organisation were arrested in December 1996;
k)he was not at the meeting and avoided being arrested. Even though he was followed, he managed to escape and go into hiding so that he could flee China;
l) he left China using his own passport which was obtained with the assistance of a friend who worked in the personnel section of another company; and
m) he risks imprisonment and persecution if he returns to China.”
The Tribunal's “Findings and Reasons” are set out at CB 71.7 to CB 75.5. The Tribunal saw the applicant’s claims as being:
1)That he would be arrested if he returned to China because he was involved in a group which exposed corruption amongst Chinese officials and businessmen.
2)That his family was badly treated during the Cultural Revolution.
3)That he was fearful because of treatment he received following the pro-democracy demonstrations in China in 1989
In making its “Findings and Reasons” the Tribunal did have regard to independent country information, which is referred to, with extracts, at CB 68.2 to CB 71.6. The Tribunal found:
1)That in relation to the claims of his family being mistreated during the Cultural Revolution, that it was not satisfied that there was a real chance that the applicant faced persecution in China because of this mistreatment. The Tribunal based this on independent evidence before it, which indicated that the Cultural Revolution was repudiated by the Chinese government in 1978 (CB 72.4).
2)In relation to the events following the pro-democracy demonstrations in 1989, the Tribunal accepted that the applicant had been detained, but did not accept that he was detained for five months. The Tribunal found that the applicant was one of those people who were released because they were not the major players that were being sought. Further it did not accept that the applicant suffered adverse consequences, as he claimed, as a result of his detention and it was not satisfied that the applicant faced persecution in China as a result of his witnessing the Tiananmen Square uprising (CB 72.6 to CB 73.3).
3)In relation to the applicant’s claims of harm arising out of his claim that he had formed a secret organisation in China to oppose the Chinese Communist Party, the Tribunal observed inconsistencies in the applicant's written evidence, and also that the applicant’s evidence at the hearing before it was internally inconsistent. The Tribunal took the view that the applicant's explanation of errors in translation did not adequately explain the inconsistencies presented. It did not accept that the applicant had formed a secret organisation or that he was in hiding prior to his departure from China or that he was being followed by police. It followed, that it also did not accept his claim that two members of his organisation were arrested in December 1997 (CB 73.3 to CB 74.7).
4)The Tribunal accepted independent country information which indicated that the Chinese authorities had no interest in the applicant at the time of his departure from China given that the applicant left China on a passport in his own name, and it concluded that the applicant did not fear any persecution at the time of his departure and noted the implausible aspect of the applicant’s claims that a person of interest to the authorities would be able to obtain a passport in his own name (CB 74.8 to CB 75.2). The Tribunal did not accept that there was a real chance that the applicant would face persecution upon his return to China for any of the reasons claimed by the applicant (CB 75.3).
The application before the Court now, is unparticularised and nor was the applicant before me today able to provide any specificity to the claims made or indeed to add anything other than a comment that the Tribunal thought that all he said at the hearing before it was “lies”. The Tribunal comprehensively reviewed the applicant's claims and reported with some detail on the matters discussed with the applicant at the hearing before it. I note that all of the claims raised by the applicant were discussed with him at the hearing with the Tribunal, and he was given an opportunity to comment and explain. The applicant has not brought forward any evidence to contradict the Tribunal’s account of what occurred at the hearing it held with the applicant, nor has the he made any such assertion. Further, to the extent that the Tribunal relied on independent country information this was put to the applicant at the hearing before it. The Tribunal’s findings were all open to it on the material before it, and it gave reasons. The applicant's complaint now of a failure by the Tribunal to understand his claims, a failure to consider relevant matters, the failure to afford natural justice and the absence of proper investigation cannot, on the material before me, be made out. I cannot see any error in the Tribunal's decision of any kind, let alone an error of a jurisdictional kind that would assist the applicant now. I dismiss this application on the basis of inordinate and unwarrantable delay. Further the applicant has not identified an error of law in the Tribunal's decision, and nor can I see any error of law.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 27 September 2005
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