SZGJC v Minister for Immigration
[2005] FMCA 1638
•4 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGJC v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1638 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of China claiming a well-founded fear of persecution because of political opinion – where applicant did not attend RRT hearings – delay – RRT decision forwarded to applicant’s postal address in October 1998 – where applicant claims that he did not find out his application had been refused until he was arrested and detained on 15 October 2002 – where application for judicial review not filed until 20 May 2005. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.425, 426 |
| Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198 Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389 at [33] 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 Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte applicants S134/2002 (2003) 211 CLR 441 at [90] S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 followed The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 |
| Applicant: | SZGJC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1319 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 November 2005 |
| Date of Last Submission: | 3 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 4 November 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gormly |
| Solicitors for the Applicant: | Ray Balding |
| Counsel for the Respondent: | Mr Reilly |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Leave granted to join the Refugee Review Tribunal as a Second Respondent.
The application is dismissed.
The Applicant is to pay the first Respondent’s Costs fixed in the sum of $8,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1319 of 2005
| SZGJC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
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 that was made on 15th October 1998. The Tribunal affirmed the decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs not to grant a protection visa to the applicant.
Background
The applicant is citizen of the People’s Republic of China who arrived in Australia on 24th August 1996. He applied for a protection visa on 29th January 1997, claiming a fear of persecution for reasons of political and religious belief. A delegate of the Minister refused his application on 3rd May 1997.
On 3rd June 1997 the applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision. The Tribunal wrote to the applicant on 10th August 1998, offering him the opportunity to attend a hearing to give oral evidence in support of his claims. The hearing was fixed for 2.00 p.m. on 8th September 1998.
The letter was returned unclaimed to the Tribunal, marked “unknown at this address”. The applicant did not attend the hearing. The Tribunal noted that the applicant’s address for service was that of a person described as a “friend” of the applicant, Mr Huyson Ly, and arranged to telephone Mr Ly on 14th September. The Tribunal said that Mr Ly had told the Tribunal officer that the applicant used his post office box from time to time and that he had not been in touch with the applicant for six or seven months. Mr Ly undertook to try to contact him.
A tribunal officer telephones Mr Ly again on 16th September, to be told that Mr Ly had contacted another friend of the applicant, Mr Li, who would try to contact the applicant. He said that he may contact the Tribunal in the next week or so, but did not make any further contact.
The Tribunal rescheduled the applicant’s hearing to the 15th October 1998 and wrote to the applicant at his residential address. The applicant did not contact the Tribunal and did not attend the hearing on 15th October.
The Refugee Review Tribunal’s decision
The Tribunal noted that it had no way of contacting the applicant and had exhausted the available addresses and telephone numbers.
The Tribunal then proceeded to determine the application on the basis of the material before the Tribunal.
The Tribunal member summarized the material in the applicant’s application for a protection visa and his application for review.
The Tribunal commented on the vague and general details of the applicant’s claims. The Tribunal made these comments:
It is impossible on the evidence before me to assess the nature and extent of any harm the applicant might have suffered in the past or might suffer in the future, or indeed if any of his claims are true. His claims amount to little more than a series of unsupported and untested assertions. If he had attended the hearing the above issues would have been explored with him.
The applicant was put on notice that the Tribunal was unable to make favourable decision on the information available and he has not provided further information nor has he taken up the opportunity to personally appear to present his claims and have them examined and clarified. The Tribunal has exhausted all avenues in an attempt to contact the applicant.[1]
[1] See page 59 of the Court Book
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political group or political opinion. Accordingly, the Tribunal affirmed the decision not to grant a protection visa.
The application and the amended application
The applicant filed an application under s. 39B of the Judiciary Act 1903 (Cth) on 20th May 2005, seeking that the Tribunal’s decision of 15th October 1998 should be set aside. The applicant was by that stage in the Immigration Detention Centre at Villawood, New South Wales.
The applicant filed an amended application on 5th August 2005. By this time, he had obtained legal representation. The amended application sought to join the Refugee Review Tribunal as Second Respondent.
In the amended application, the application seeks the following orders:
a)that a writ of certiorari issue, directed to the Refugee Review Tribunal, removing into this Court to be quashed, the decision of the Tribunal made on 15th October 1998;
b)that the decision be quashed;
c)that a writ of prohibition issue, prohibiting the First Respondent Minister from acting upon the Refugee Review Tribunal’s decision;
d)that a writ of mandamus issue, directed to the Refugee Review Tribunal, ordering that the applicant’s application for review of the delegate’s decision be heard and determined according to law by the Tribunal differently constituted;
e)an order for costs; and
f)such other orders as the Court deems fit.
The applicant claims that the RRT decision was affected by jurisdictional error in that:
a)the Tribunal did not comply with s.425 of the Migration Act 1958 (Cth) by not giving the applicant an opportunity to appear before it to give evidence;
b)the Tribunal did not comply with s.426 of the Migration Act, because it:
c)did not notify the applicant that he was entitled to appear before the Tribunal to give evidence; or
d)did not notify the applicant that he may give written notice to the Tribunal regarding the obtaining of oral evidence;
e)the Tribunal did not afford procedural fairness to the applicant for the reasons set out above;
f)the Tribunal took into account irrelevant considerations, being the applicant’s failure to attend the hearing where the applicant was not given actual notice of his entitlement to appear.
Issues
For the applicant, Mr Gormly of counsel submitted that there were two issues to be decided by the Court.
First, that the decision of the Tribunal is not a privative clause decision because it was a decision made in breach of the requirements of procedural fairness and therefore vitiated by jurisdictional error.
As such, it is not immune from judicial review. A decision made in breach of the requirement to accord procedural fairness may be the subject of constitutional writs.
Second, whilst the issue of writs under s.75(v) of the Constitution and s.39B of the Judiciary Act is discretionary, the Court should not decline to exercise to exercise its discretion to grant relief despite the applicant’s delay in seeking that relief.
For the Respondents, Mr Reilly of counsel submitted that the failure of the applicant to attend a hearing of the Tribunal was not due to any failure by the Tribunal, and there was no absolute obligation to notify an applicant, even under ss.425 and 426 of the Migration Act as they stood in 1998. Both sections have since been amended.
Second, Mr Reilly submitted that the delay by the applicant was so lengthy and unsatisfactorily explained that the Court should refuse to exercise its discretion to grant relief, irrespective of the merits of the applicant’s claim.
Delay
The applicant swore an affidavit on 4th August 2005 to explain the delay in commencing these proceedings.
The applicant deposed that he arrived in Australia on 24th August 1996 on a business visa. He answered an advertisement for accommodation in a Chinese language newspaper and lived with the advertiser, a
Mr Gao, in the Sydney suburb of Riverwood for about 3 months.
He then moved to live with a Chinese family in Lansvale, another suburb of Sydney, where he stayed for about 4 years.
Mr Gao advised the applicant to consult a migration agent called Li Qing Hui for assistance in obtaining a protection visa. The applicant consulted Mr Li and paid him the sum of $1,000.00.
The applicant deposed that Mr Li filled in the application for a visa for him, as he could not read or write English. Even though the applicant said that he told Mr Li he no longer lived in Riverwood, Mr Li put down Mr Gao’s Riverwood address as his own residential address.
On or about 2nd June 1997 the applicant saw Mr Li again. This time
Mr Li completed an application to the Refugee Review Tribunal for him. Again, the Riverwood address was given as the applicant’s home address. The address for correspondence was given as care of Huyson Ly, a “friend only” at a post office box in Cabramatta. The applicant deposed that he did not know any person named Huyson Ly or any addresses in Cabramatta.
The applicant deposed that he never met Mr Li again. He claimed that Mr Li telephoned him in about March 1998 saying “I need more money to attend the RRT hearing”. The applicant said “I cannot afford to pay you”, whereupon Mr Li said “If you don’t pay me you can’t go to the hearing”. The applicant said that Mr told him in that conversation that he had been granted a visa.
The applicant asked for his passport back. Mr Li returned the passport to his Lansvale address. The applicant deposed:
I thought it was strange that the passport did not show the visa.
The applicant claimed that he applied for a driving licence through the office of the Roads and Traffic Authority at Bankstown. He showed his passport and, when asked about a visa, showed the officer the receipt for the registered letter in which he had enclosed his application for his application. He stated that the RTA officer advised him to keep the receipt with him if ever he was asked to show his driving licence.
The applicant claimed that he never received any letters from the Refugee Review Tribunal. He lost contact with Mr Gao and Mr Li.
The applicant deposed that he only found out that his application to the RRT had been unsuccessful when he was arrested and detained on
15th October 2002. He says at paragraph 31 of his affidavit:
I did not seek legal advice before now as I was not aware I could do anything about my case. I had no contact with anyone who was familiar with procedures.
A Minister of Religion, the Rev. Chung-Ruey Lee, helped him complete a letter to the Department of Immigration & Multicultural Affairs about two months after he was detained.
The applicant deposed that on 16th May 2005 he was interviewed at the Immigration Detention Centre by members of the staff of the Chinese Consulate. He did not wish to discuss his personal details with these people. On 20th May he filed his application for judicial review.
The applicant was cross-examined on his affidavit. He gave evidence with the assistance of a Mandarin interpreter.
In cross-examination, the applicant said that he did not ask to have any of the protection visa documents translated for him. He trusted Mr Li, who was his “friend”. Mr Gao had introduced him. He was a migration agent. He did not know why Mr Li wrote down the Riverwood address instead of the Lansvale address. He said “If it is a mistake it is his
(i.e. Mr Li’s) mistake.”
The applicant said he did not see Mr Li at any time after he completed the RRT application. When Mr Li rang him asking for money, Mr Li told he had a visa but did not tell him what type of visa. He just posted the passport back to him at Lansvale.
The applicant said that he did not attempt to contact Mr Li after that. When he looked at the passport he saw that there was no visa in it. When asked why he did not attempt to contact Mr Li, he said:
I saw I was cheated. I did not want to talk to him anymore.
My notes of the cross-examination show that the evidence then proceeded as follows:
Mr Reilly: You knew you didn’t have a visa?
Applicant: There was no visa in the passport.
Mr Reilly: You knew you didn’t have a visa?
Applicant: No visa in the passport.
Mr Reilly: You knew you needed a visa to stay in
Australia lawfully?
Applicant: Yes.
Mr Reilly: Did you make any attempt to get a visa after
Mr Li returned your passport?
Applicant: I did not need to apply for a visa because I
was a lawful resident because RTA computer can show that.
The applicant gave evidence that he did not contact the Department of Immigration because he was unable to communicate with them – “language barrier”. He went on to say that he did not speak much when he went to the RTA at Bankstown:
Actually we don’t need to speak at all. That program on the computer is in Chinese. You just point and the officer can understand. We don’t need to say anything or just say one sentence. You just need to say ‘computer, computer’.
The applicant said that he did not do anything else to get a visa after visiting the RTA. He said it was not necessary to do so at that time.
He was not living in a Chinese community at that time. The friends around him were just “happy go lucky”.
When he moved to Lansvale, he did not tell the Department of Immigration his new address. He said “Why should I tell them?”
When the applicant was taken into Immigration detention he did not commence this litigation until May 2005. He told his personal details to the Department. He said:
I did not hear any DIMIA officer tell me to apply for a visa.
It was not until the applicant was interviewed by Chinese Consular or Embassy officials, (he used both terms in his affidavit) that he decided to commence proceedings.
The applicant said that he did not seek advice from any other migration adviser after he had received his passport back from Mr Li. He said that he thought it was unnecessary.
When asked if he knew that he was in Australia illegally from about 1999 until he was detained in 2002, the applicant replied:
At that time I did not know. Only in year 2000 like 50%. I got a feeling.
The applicant was asked about whether he thought of making any inquiries about his status. My notes of the cross-examination are these:
Mr Reilly: You could have inquired from DIMIA to find
out if you were illegal or not?
Applicant: At that time I did not think about such things
to confirm or not.
Mr Reilly: You were just hoping you wouldn’t be located
And detained?
Applicant: I didn’t k now it until I was detained by DIMIA and
taken to Villawood.
Relief under s.75(v) of the Constitution is, like prerogative relief generally, discretionary (see Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 at [33]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte applicants S134/2002 (2003) 211 CLR 441 at [90]).
The Court has a discretion to dismiss an application for a constitutional writ in cases where there has been unwarrantable delay and that 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; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24; Naguit & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 930; S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283).
Unwarranted delay can justify the withholding of relief (see The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389). 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 495-496).
Conclusions
In the present case, I am satisfied that there has been a lengthy and unwarrantable delay. The applicant has given evidence that he was deceived or “cheated” by Mr Li and that he was not aware of the Refugee Review Tribunal hearing. He was unable to read or write English, so he was unable to read that the address at Riverwood appeared on his documents rather than his address at Lansvale.
Even accepting all of these assertions, it seems clear that the applicant did not take any steps to inquire about his immigration status. He did not tell the Department that he had moved to Lansvale; he said in cross-examination “Why should I tell them?”[2]
[2] See paragraph 37 above.
In his own evidence in chief, he said that Mr Li had telephoned him in about March 1998, asking for more money so that he could attend the RRT hearing. He deposed in his affidavit that Mr Li said to him:
“If you don’t pay me you can’t go to the hearing”[3]
[3] Applicant’s affidavit, paragraph 22
I am satisfied that from this conversation the applicant was aware that there was a hearing scheduled to take place in the reasonably near future. Mr Li did not say that if he was not paid the hearing would not take place; he said that the applicant would not be able to attend it.
The applicant deposed that Mr Li told him that he had a visa of some sort. He asked Mr Li to return his passport. He deposed:
“At my request Mr Li returned my passport to my address at Lansvale. I thought it was strange that the passport did not show the visa.”[4]
[4] Applicant’s affidavit, paragraph 24. There is no paragraph 23.
In my view, the applicant should have been aware at that stage that there was some doubt about whether or not he had a visa by that stage. He said in cross-examination that he did not attempt to contact Mr Li again because “I saw I was cheated”[5].
[5] See paragraph 33 above
The applicant reluctantly conceded that from 2000 he was “50%” aware that he was in Australia illegally.[6] Even then, he made no inquiries about his status.
[6] See paragraph 41 above.
Incredibly, even when the applicant was taken into Immigration detention on 15th October 2002 he took no court action to overturn the RRT decision for over two years. He may well have corresponded with the Minister’s office to seek intervention under s.417, but this is not an acceptable answer to delay in commencing court proceedings
(see Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198).
I find it implausible that the applicant could have remained in detention at Villawood for over two years without knowing that he had the option of bringing an application to the Federal Magistrates Court. The court sees many applications from inmates of Villawood IDC each month, including a number from citizens of the People’s Republic of China.
The applicant told the Court that he only decided to bring court action after he was interviewed by Chinese officials at Villawood on Monday 16th May 2005. It did not take him long to find out what his options were, as he filed his application at the Court only four days later, on 20th May 2005.
In summary, I am satisfied on the evidence before me that the applicant was aware that there was some sort of hearing approaching from March 1998 onwards and that from that time he had reason to suspect that he did not have a valid, or any, visa to allow him to stay in Australia.
On his own admissions he was suspicious about his status from 2000 on, but did nothing to inquire from the Department of Immigration and Multicultural and Indigenous Affairs. The inference that can be drawn is that, at the very least, the applicant was wary of approaching the Department in case his suspicions were confirmed.
The applicant’s explanation about obtaining a driver’s licence from the Motor Registry does not satisfy me that he made any real inquiries about his status at that stage. He explained in his oral evidence that one only had to say “computer, computer” and then point to the Chinese language that appeared.
The applicant’s explanation for not commencing proceedings after he was taken into immigration detention on 15th October 2002 is unacceptable. I do not accept that he was ignorant of his rights to apply to the Court for over two years.
The delay by the applicant in commencing proceedings until May 2005 when he had been taken into detention on 15th October 2002, some two years and seven months, would of itself be sufficient to justify withholding relief. In my view the applicant knew or suspected that his status was illegal for at least two years before that time and did nothing about it.
The delay is unwarrantable and excessive. I reject the applicant’s explanations as wholly inadequate. It is unnecessary to investigate whether he has otherwise established any ground for relief.
I will dismiss the application with costs.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 9 November 2005
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