SZGKZ v Minister for Immigration
[2005] FMCA 1645
•25 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGKZ v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1645 |
| 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 – applicant a citizen of China who claimed to have run away as a teenager because he was unhappy at home. PRACTICE & PROCEDURE – Objection to competency – privative clause decision – where application filed more than 28 days after the applicant was notified of the decision – where applicant notified of RRT decision by letter dated 20 January 2005 but application for review not filed until 30 May 2005. |
| Judiciary Act 1903 (Cth) Migration Act 1958 (Cth), ss.474, 477(1A) |
| Applicant: | SZGKZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1393 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 25 October 2005 |
| Date of Last Submission: | 25 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr Kennett |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the Refugee Review Tribunal be joined as the second Respondent to these proceedings.
The application is dismissed.
The application is not competent.
No order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1393 of 2005
| SZGKZ |
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 a review of a decision of the Refugee Review Tribunal made on 19th January 2005 after a hearing held on
13th January 2005. The Tribunal notified the applicant of the decision the next day, 20th January. The Tribunal affirmed the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant a protection visa to the applicant.
Background
The applicant is a citizen of The People's Republic of China, who arrived in Australia in mid-1995. The RRT decision says that he claimed to have entered on a false passport. He remained in the community until April 2003 when he was detained after being found working illegally in rural Victoria.
For reasons that are still not clear, he did not apparently have any assistance in applying for any sort of a visa until November 2004. Why he remained in detention all that time, without anything happening is unexplained, except that the applicant told the Court that he could not find a lawyer or someone who could assist him until November 2004.
On 1 December 2004, the applicant applied for a protection (class XA) visa. He gave his date of birth as 27th July 1978, which makes him 27 years of age now. He gave his reasons for leaving China as:
I do not like China. When I was 17 my parents told me to go with a man who was going to take me overseas.
On 6th December 2004, a delegate of the Minister refused his application for a protection visa.
On 14th December 2004, the applicant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal invited him to attend a hearing on 13th January 2005. The applicant attended with his migration advisor and gave evidence with the assistance of a Mandarin interpreter.
The Tribunal took the step of offering the applicant a week after the hearing to make further submissions.
On 18th January, the applicant's advisor told the Tribunal that no further submissions would be made.
The Tribunal's decision
The Tribunal was satisfied that the applicant was a citizen of The People's Republic of China, although there was no evidence supporting that fact. The Tribunal member noted that the applicant spoke fluent Mandarin and formed a positive view of his frankness in giving evidence.
The Tribunal member tried a number of approaches to see whether there might be any convention related claims behind some of the applicant's concerns.
The applicant had told the Tribunal that he had, essentially, run away from home at the age of 15 and met a people smuggler who helped him to get to Hong Kong and eventually to Australia. He said that life in China was too complicated and he had difficulties with school and finding work. He expressed a fear of returning to China after having been away for so long.
The Tribunal saw no need to refer to any independent country information because of the nature of the applicant's claims.
The applicant did not make any claim of a fear of persecution for any convention reason.
The applicant's application for review
The applicant filed his application for judicial review on 30 May 2005, which is more than 28 days after the Tribunal notified him of its decision. He seeks an order setting aside the Tribunal's decision.
The application contains four grounds:
(a)The Tribunal's decision and reason for decision, 19 January 2005;
(b)I am a citizen of China who claims to have a well founded fear of persecution for reasons of my political opinion in China under the Refugee Convention as amended by the Refugee protocol;
(c)The Tribunal was in error of law. Those findings were open to it from my side fact and evidence;
(d)The Tribunal failed to deal with the applicant's claim of fear of persecution by reason of my political opinion.
I would comment at this stage that ground (a) is not a ground for review. It only identifies the decision. Grounds (b) and (d) refer to a fear of persecution because of political opinion, but there does not appear to be any evidence that the applicant ever claimed to the Tribunal that he was ever persecuted for any political opinion.
The applicant put to the Tribunal that he was only young when he left China, so what political opinions could he have?
I have read through the written outline of submissions prepared by counsel for the first respondent Minister, Mr Kennett. In his outline of submissions, Mr Kennett refers to the four grounds in the applicant's application and offers his comments in respect of each of the four grounds. As he says, ground (a) merely identifies the decision under review. Ground (b) does not identify any error on the part of the Tribunal. It asserts that the applicant is a citizen of China, which the Tribunal accepted, and that he claims to have a well founded fear of persecution for reasons of political opinion, which was not a claim that he articulated in the Tribunal. I am of a view that this submission is correct. As I said, I have seen no evidence that the applicant made any claim of fear of persecution for reasons of political opinion.
That clearly means that ground (d) must fail because ground (d) asserts a failure by the Tribunal to deal with a claim of fear of persecution for reasons of political opinion. The applicant did not advance any such claim before the Tribunal, nor did any claim of that nature arise from the material before the Tribunal.
The only other ground is ground (c) which asserts an error of law by the Tribunal in respect of findings which are said not to have been open to it. As Mr Kennett submitted, the relevant findings are not identified. It may be noted, however, that the Tribunal did not doubt any of the factual assertions made to it by the applicant. Mr Kennett submits, and I believe correctly, that the Tribunal clearly did not err in law in deciding that those factual assertions did not make out a claim to refugee status. He submits, and again I agree, that the conclusion reached by the Tribunal was the only conclusion open to the Tribunal.
The applicant told the Court today that he had left home in China because he had been abused at home. He said that he was badly beaten by his parents at home. He also complained that the police took his dog away. As he said, and this is quite clearly correct, he has not had parents since a young age. I note that he was about 15 when he left China.
The applicant claims that the ill treatment that he suffered was quite severe to the extent that his leg was broken by his father. He ran away from home on quite a few occasions, but later returned. When he ran away and met up with the people smuggler, he went first of all to Hong Kong and then to several other countries. He cannot remember those countries, but he told the Court that he travelled there either by aircraft or ship.
He said that he spent about a year in Cambodia where he was made to work loading and carrying boxes, but he did not know what was in the boxes. He went to a few other countries after Cambodia, but he is not sure what countries they were. Eventually he travelled by air to Australia.
The applicant has been in Australia now for 10 years and fears to return to China because he is estranged from the country that he left when he was a teenager.
The trouble for the applicant is that the grounds contained in the application, no matter how generously they are interpreted, do not and cannot amount to any claim of a well founded fear of persecution for a convention reason.
The fact that this young man was abused as a child by his parents does not mean that he fits into any of the categories which would enable him to be classified as a refugee under the Refugees Convention as amended by the Refugees Protocol. It is clear that the applicant's case cannot succeed and his application must be dismissed.
There are, however, a few points that I consider that should be made in respect of this case, which is somewhat unusual. First of all, in fairness to the Tribunal member, Mr Hardy, it seems that he was concerned about the applicant's circumstances. He describes how he asked questions of the applicant in order to ascertain whether there was anything in the applicant's account that would correspond to a convention reason. He noted that the applicant acknowledged that he had, effectively, run away from home.
At page 74 of the Court Book, in the background, the Tribunal member expresses concern about the fact that the applicant had been detained for a period of 17 months before he appears to have obtained any assistance with his immigration issues. I share that concern.
At page 79 of the Court Book, the Tribunal member relates how he checked whether the applicant had been allowed a reasonable amount of time to confer with his solicitor prior to lodging his RRT application and established that he had been allowed a reasonable degree of contact.
In the following paragraph on that page, the Tribunal member describes how he offered the applicant a period of time with his solicitor for any required follow-up to matters discussed at the hearing. He relates that this offer was accepted and gives his reasons as follows:
The Tribunal provided this opportunity in order to help maximise the applicant's capacity to comprehend the potential outcome of his claims as they hitherto stood to facilitate the formulation of any post-hearing submission should he wish to prepare one and to allow him time to outline with his advisor any further or hitherto omitted issues of relevance to his application.
In my view, the Tribunal's actions in this case make it quite clear that the Tribunal cannot in any way be accused of any denial of natural justice or procedural unfairness. Quite the reverse appears to be the situation. The Tribunal appears to have bent over backwards in an effort to give the applicant all possible opportunity to formulate any claim that he may have of a well founded fear of persecution for a convention reason. The applicant was not able to do so, and indeed, elected not to make a post-hearing submission. It is quite clear that the Tribunal gave him every opportunity to formulate his case.
It is a matter of concern that the applicant was in detention for a period of 17 months before the applicant received any advice about lodging an application for visa. The fact that he could not obtain advice from a lawyer or a migration agent during that period does not adequately explain why he remained in the detention centre for that length of time. If he was not going to apply for a visa, then the respondent Minister should have made arrangements for him to be removed from Australia.
The other issue of concern is that when the applicant did apply for judicial review of the decision of the Refugee Review Tribunal, when the application came to Court on the 10th and 14th June 2005, the Registrar listed the matter for hearing at 10.15am on 25th October 2005. This is quite clearly earlier than applicants who were not in detention at that time could have expected to receive a hearing date, due to the large number of applications before the Court.
Nevertheless, whereas in this case the applicant has a clearly hopeless case for review, in my view, the respondent Minister, as a model litigant, should give consideration to making a specific request to the Court for expedition of the hearing date when such an applicant is in detention.
Whilst it may be undoubtedly true that applicants with a good case should receive an early hearing date, especially if they are in detention, it is equally true that applicants whose cases are without any chance or prospects of success, should have their cases heard as soon as possible if they too are held in immigration detention. If their case is not going to succeed, and there is no evidence in this case that it was ever likely to succeed, then the sooner that it is disposed of the better. It is not of any benefit to any party to spend time waiting in immigration detention for any longer than is necessary in order to have a hopeless case finalised. As I said, the evidence in this case shows that the applicant did not have any prospect of success.
I would make it clear that the Federal Magistrates Court - and I am sure my colleagues would take a similar view - would take a sympathetic view to any approach to expedite hearing dates where applicants are being held in detention and there is a need to resolve their matters as soon as possible.
The only other matter to be dealt with is the fact that the respondent Minister has filed a notice of objection to competency. The application for review was filed more than 28 days after the applicant was notified of the decision of the Refugee Review Tribunal. The evidence shows that the applicant was notified of the decision of the Tribunal by a letter dated 20th January 2005, but his application for judicial review was not filed with this Court until 30th May 2005. That is outside the period of time provided by s. 477(1A) of the Migration Act. Under subsection (2) of that section, the Court has no power to extend the time.
As I told the applicant during the hearing, that time limit would not apply if the decision was not a privative clause, that is if the decision was tainted by jurisdictional error. In this case, however, there is no jurisdictional error and the decision of the Refugee Review Tribunal is a privative clause that attracts the protection of s. 474 of the Migration Act.
There is an application for costs on behalf of the respondent Minister. The amount is estimated as $4,000.00.
The applicant said that if he could be let out of detention he would work to make money to repay the costs.
The fact is that the applicant has been in immigration detention since April 2003. This means that he has been in detention for over two years, in fact, nearly two and a-half years.
I accept the fact that he has no funds and no earning capacity. It would seem to me that any costs order made by the Court would be futile and the likelihood of recovery of those costs would be next to nil. As it is not my intention to make a futile order, in the circumstances of this case, I make no order for costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 31 October 2005
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