SZGKQ v Minister for Immigration
[2006] FMCA 742
•18 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGKQ v MINISTER FOR IMMIGRATION | [2006] FMCA 742 |
| MIGRATION − Review of RRT decision − where applicant invited to Tribunal hearing to provide further information − where applicant knew of invitation − where applicant did not attend hearing on advice of migration agent − where migration agent did not attend RRT contrary to belief of applicant that he would be represented at hearing by agent − where delay of two years in applying for review of RRT decision − whether to exercise discretion to grant review of jurisdictional error given delay in application − whether jurisdictional error. |
| Federal Magistrates Court Rules 2001 Migration Act 1958, s.426A |
| SZEYH v The Minister [2006] FCA 93 [21-35] R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 R v Australian Broadcasting Tribunal; ex parte Fowler (1980) 31 ALR 565 SAAP v Minister for Immigration [2005] 215 ALR 162 Re Minister for Immigration & Anor; Ex parte Miah [2001] HCA 22 SZHJR v Minister for Immigration [2006] FCA 203 SZEIK v Minister for Immigration [2005] FCA 1199 |
| Applicant: | SZGKQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File number: | SYG 1380 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 18 May 2006 |
| Date of last submission: | 18 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Zipser |
| Counsel for the Respondent: | Anthony Cox |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1380 of 2005
| SZGKQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China. Together with his wife and children he arrived in Australia on 14 November 2000, although he had previously come in and out of Australia since 29 May 1995. He was a businessman with business activities in Australia and China. On 30 August 2002 the applicant and his family lodged applications for protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs. On 30 October 2002 a delegate of the Minister refused to grant a protection visa and on 19 November 2002 the applicants applied for a review of that decision. The applicant had a migration agent, a Mr Zhou.
On 2 September 2003 the Tribunal wrote to the applicant advising him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The applicant was invited to a hearing on 1 October 2003. The evidence is that the applicant took that letter to his migration agent, who had also received a copy. The applicant states that he had provided the migration agent with certain materials which would corroborate his claim to have a well-founded fear of persecution for the Convention reasons of religion/membership of a particular social group. The applicant claimed to be a follower of Falun Gong.
The applicant's evidence is that he went to see Mr Zhou and Mr Zhou told him that he could attend the hearing on behalf of the applicant and present the best case for him. The applicant, who gave evidence before me and who was cross examined by Mr Cox on behalf of the Minister, conceded that he was aware of the invitation to attend and was aware that he had a choice as to whether or not he did attend before the Tribunal. My understanding of the applicant's evidence is that he trusted Mr Zhou and when Mr Zhou advised him not to appear he accepted that advice. But he believed that Mr Zhou was going to appear on his behalf.
At [CB105] the Tribunal explains the procedural history relating to the hearing invitation. It sets out that on 29 September an officer of the Tribunal endeavoured to contact the applicant on a mobile telephone number provided by the applicant. A recorded message indicated that the number was not connected. On the same day a further attempt was made using an alternative telephone number which was answered by a young person who identified herself as the daughter of the applicant. The Tribunal left a message for the applicant to return the call. The call was not returned and so on 1 October the Tribunal again telephoned the applicant at his residence and again spoke to a person who identified herself as the applicant's daughter:
“Ms X stated that her father had already left the home. She said that it was her belief that her father was not attending the Tribunal later that day.”
The Tribunal continues:
“On 29 September 2003 an officer of the Tribunal endeavoured to contact the adviser of the applicant by telephone. The Tribunal was unable to speak to the adviser because a recorded message stated that the call could not be connected.”
The Tribunal proceeded to make its determination pursuant to the provisions of s.426A of the Migration Act 1958, as it was entitled to do. It considered the statement made by the applicant that he had taken up Falun Gong early in 1996 having learned from a lady in Chinatown and from a video provided by his teacher. The Tribunal noted that the applicant claimed that he had visited China in 2000 and had sent materials back to China about Falun Gong, and that he claimed that he organised Falun Gong activities in both China and Australia and had taken part in demonstrations outside the Chinese Embassy nearly once a week since 1999. The Tribunal noted that the applicant believed that the Chinese authorities had been angered by his activities and, therefore, he would suffer persecution if he returned to China.
The Tribunal noted that it was required to be satisfied that the applicant was entitled to protection in Australia. At [CB 110] it noted several difficulties it had with his claim and, in particular, it noted that there was no explanation for the delay in making an application for a protection visa after the last date upon which the applicant claimed to have a fear arising out of his activities, namely 2000. The Tribunal says at [CB 111], after rehearsing the areas in which it had difficulties:
“These are all matters that could and would have been discussed with the applicant had he attended the hearing. There is no evidence of the applicant suffering any serious harm in China in the past. The claims of the applicant are so brief, so vague and so lacking in particulars as to be no more than a few unsupported assertions. In the absence of any opportunity to discuss and test the claims of the applicant and obtain detailed particulars from him I cannot be satisfied what, if any, mistreatment he may suffer in China in the future or even if any of his claims are true.”
The Tribunal concluded that in the circumstances it was unable to be satisfied that the applicant was a person to whom Australia owed protection obligations.
Although that decision was handed down by the Tribunal on 3 October 2003 the applicant did not make his application for judicial review until May 2005. He explains the delay in an affidavit upon which he was cross examined. He tells the court that after receiving the decision he went to look for Mr Zhou and could not find him. He was very upset, he believed that he had been cheated by Mr Zhou who had taken money from him and had not complied with his obligations and he determined with his family to return to China.
He says that before he was able to leave for China he needed to liquidate his assets by collecting debts and concluding his business arrangements. He appreciated that during the period between 2003 and 2005 he was living in this country illegally. Eventually he sent his children and wife home to China and was proposing to follow them. Then he received certain information which he says convinced him that he must remain in the country and therefore he made an application for review.
Mr Zipser, who appears on behalf of the applicant, readily accepts that there was delay in making the application to the court but states that the applicant has been candid and submits that this delay should not prevent the court from exercising any discretion it may have to grant review if it finds that the decision of the Tribunal was made in jurisdictional error.
As I said to the parties in court, I take the view that it should never be forgotten what the Tribunal is tasked to do. It is tasked to decide whether or not persons who claim to have a fear of persecution should they return to their country of nationality or habitual residence may be granted the protection of Australia, one of the earliest signatories to the Refugee Conventions. It is for the Tribunal to decide whether or not it accepts that the persons appearing before it have the well-founded fear that is required. The courts are constantly reminding each other that these matters are questions of fact which are for the Tribunal alone to decide.
Because of the seriousness of such an application, and the implications of an unfavourable decision, it seems to me that by interfering in the process by declining to exercise discretion to allow a clearly faulty decision to be returned to a Tribunal for the purposes of making a decision according to law the court is usurping the role of the Tribunal. It seems to me that what a court is really doing is imposing its own view of the facts by coming to a conclusion that the applicant's application is not worthy because of the delay. I know this is not a popular theory and that there are many judicial officers who would violently disagree with it but it is my view and it is my discretion and whilst cognisant of my duty to exercise it judicially I would be reluctant to prevent an applicant who can demonstrate clear jurisdictional error on the part of the Tribunal from having his application heard according to law.
I feel some support in this view from the fact that the font of authority for the existence of the discretion is not found in decisions of this type, rather it is in more general administrative decisions whose facts do not easily translate into a world where applicants before the court may be at risk of their very lives. The oft-cited general principle of administrative law regarding the discretion to withhold the writ of mandamus was enunciated by Latham CJ, Rich, Dixon, McTiernan and Webb J in R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389:
“The writ of mandamus is not a writ of right nor is it issued as of course. There are well recognised grounds upon which the court may, in its discretion, withhold the remedy.
For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensure, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made.”
This case, later affirmed by the Court in R v Australian Broadcasting Tribunal; ex parte Fowler (1980) 31 ALR 565, is cited as authority for the proposition that a judicial officer can exercise his or her discretion to refuse to review an application for judicial review of a Tribunal decision in the case of ‘unwarrantable delay’ : SAAP v Minister for Immigration [2005] 215 ALR 162 as per McHugh J at [80]; Re Minister for Immigration & Anor; Ex parte Miah [2001] HCA 22 as per McHugh J at [150]; SZHJR v Minister for Immigration [2006] FCA 203 as per Sackville J at [20]; SZEIK v Minister for Immigration [2005] FCA 1199. The difficulties and the “serious legal inflexibility” created by statutory time limits in the Migration Act where an applicant for a protection visa becomes out of time, were also noted by Kirby J in Miah at [223]
“…To deny any facility of extension, whatever the circumstances, is to address attention solely to questions of procedure rather than substance. In the discharge of the humanitarian purposes of the Act, of protecting refugees, the legislation should, in my view, provide a measure of latitude where this can be clearly justified. For at least a century, the courts and the law in Australia have marched away from a rigid, unyielding application of rules as to time towards a more realistic acceptance of the fact that human error is inescapable and priority should be given to substantive merits. There is no reason why refugees should be excluded from this advance. There is every reason why they should not.”
On the other hand, as Mr Zipser also readily accepts, I am bound by decisions of the Federal Court sitting on appeal from the Federal Magistrates Court when considering whether or not any jurisdictional error did occur in relation to the decision. In this case the jurisdictional error alleged is the failure to provide the applicant with a genuine hearing, not through the fault of the Tribunal, but through the fault of his migration agent. Mr Cox set out in his cross examination to show that the applicant could not even establish that what occurred was the fault of his migration agent or that he was misled by the migration agent as he had submitted.
I think that if one takes the charitable view of the situation of a person such as the applicant who, although he had been in the country for some considerable time still spoke no English and who could not really be expected to understand the complexities of migration law, one would say that he was misled. He was misled to the extent that he believed from representations made to him by the migration agent that his case could be optimally articulated by the agent alone. He accepted that advice and the agent did not appear.
Mr Cox argues that the applicant accepted that he did not know why the agent had not appeared and he did not know why the agent had disappeared. I assume that he was postulating there were innocent reasons for both of those things happening. The agent may have disappeared because he is dead or returned to China. I am prepared to infer from the failure of the agent to respond to the call made to him by the Tribunal, his failure to appear and his disappearance that it is more likely than not that he did in some way mislead the applicant.
But this is not enough. In SZEYH v The Minister [2006] FCA 93 [21]-[35] Jacobson J considered the authorities relating to claims that the failure of a migration agent can ground jurisdictional error on the part of the Tribunal. At [30] his Honour says:
“It seems to me therefore that, subject to the caveat expressed by Dowsett J in B41 as to the remarks of the Chief Justice in Hot Holdings, and the remarks of the Full Court in Barrett, the learned Federal Magistrate was correct in holding at [28] of her reasons that an appellant cannot complain that his actions, taken in reliance upon the advice received from his migration agent, led to his being denied procedural fairness. Indeed, it should be noted that the Chief Justice’s observations in Hot Holdings addressed the question of actual or reasonable apprehension of bias resulting from the conduct of persons other than the decision maker and the role played by those persons.”
At [31]:
“There was nothing in the facts of the present case to enliven an obligation of procedural fairness as was found by Hely J in NAHF. Nor can it be said that the invitation provided anything other than a real and meaningful opportunity to appear. The appellant declined the invitation to attend a hearing without providing any information to the RRT as to his reasons for doing so.”
In this case the applicant was well aware of the opportunity being provided to him to attend a hearing. He was aware that the Tribunal had already determined that it was unable to make a favourable decision unless he appeared. He accepted certain advice on the basis of representations made to him which did not materialise. The situation does not seem to me to be any different from that considered by Jacobson J in SZEYH or in the many of the other cases therein referred to. I am bound by that decision and in those circumstances I can only conclude that this application must be dismissed. The applicant may have a good argument to put to the Minister under s.48B Migration Act. The applicant must pay the respondents costs which are assessed in the sum of $5000.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM.
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