SZGMB v Minister for Immigration
[2006] FMCA 175
•1 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGMB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 175 |
| MIGRATION – Visa – protection (class XA) 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 the People’s Republic of China claiming a well-founded fear of persecution for reason of religion – credibility – delay – where application for review filed more than PRACTICE & PROCEDURE – Objection to competency – Notice of objection to competency – privative clause decision – where application filed more than 28 days after the applicant was notified of the decision – where applicant notified by letter dated 11 March 1999 – where application filed on 6 June 2005. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.474, 477, 483A |
| Kopalapillai & Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZGMB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1466 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 February 2006 |
| Date of Last Submission: | 1 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Ms McNaughton |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is not competent.
The application is dismissed.
The Application is to pay the First Respondent’s costs fixed in the sum of $6,000.00 and I allow (9) nine months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1466 of 2005
| SZGMB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| 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 10th March 1999 after a hearing that took place on 25th February 1999. The Tribunal forwarded a copy of the decision to the applicant on 11th March 1999. The Tribunal decided to affirm the decision of the Minister's delegate not to grant a protection visa to the applicant.
The applicant is a citizen of China who arrived in Australia on 29th October 1997. He applied for a protection visa on 14th November 1997 but a delegate of the Minister refused to grant him that visa on 30th April 1998. On 27th May 1998 the applicant sought a review of that decision from the Refugee Review Tribunal.
The applicant attended a hearing of the Tribunal on 25th February 1999 and gave evidence about having been persecuted because of his adherence to the Catholic faith. He said that he feared that he would be arrested if he were to return to China.
The Tribunal was not satisfied with the applicant's credibility.
The Tribunal found that there were a number of inconsistencies with the applicant's evidence about various matters including his inability to answer basic questions about the Catholic Church, Catholic teachings and Catholic practices. The Tribunal gave the applicant a week to address those inconsistencies in writing.
The decision says that:
At his hearing the applicant was unable to give any explanation for a number of the inconsistencies and his explanations for the rest were not reasonable. In his written submission to the tribunal the applicant has not addressed these inconsistencies.
See Court book at page 85.
The Tribunal was not satisfied that the applicant had been involved in religious activities as he claimed. The Tribunal was not satisfied about the credibility of his claim to have been arrested because of Catholic activities in which he had been involved. The Tribunal also found that there were inconsistencies between the applicant's written claims to the Department of Immigration & Multicultural Affairs as it then was and his Tribunal hearing.
The Tribunal's finding about the credibility of the applicant's claim was very critical:
At the Tribunal hearing the overall implausibility and lack of credibility of the applicant's claims was pointed out to him.
The applicant was given the opportunity to clarify the contradictions regarding the various claims that he has made but was unable to do so in any meaningful way either at his hearing or in the subsequent written submission. Given the significant adverse findings on credibility in relation to the applicant the Tribunal cannot be satisfied that the applicant has a real chance of being persecuted for a convention reason in China in the foreseeable future and is therefore not satisfied that the applicant's fear of persecution for a convention reason is well founded.
See Court book at page 87.
The Tribunal affirmed the decision not to grant a protection visa to the applicant. The applicant filed his application for review of the Tribunal's decision on 6th June 2005 whilst an inmate of the immigration detention centre at Villawood, New South Wales. In that application he seeks an order setting aside the Tribunal's decision and an order for costs.
The application gives the following grounds:
I am a citizen of China who claims to have a well founded fear of persecution for reasons of my religious belief in China under the Refugees Convention by the refugee protocol. The Tribunal ignored or failed to consider a claim made to it. The Tribunal misunderstood my claim or made a mistake in relation to an important finding of fact. The Tribunal was in error of law. Those findings were open to it from my side, fact and evidence.
The 1st respondent Minister has filed a written outline of submissions prepared by Ms McNaughton of counsel. The respondent submits that the application for review is not particularised and that the applicant is seeking a merits review of the factual findings made by the Tribunal. Merits review is not within the jurisdiction of the Court (Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437.
The respondent also submits that the findings which relate almost entirely to the applicant's credibility were properly open to the Tribunal (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 and also Kopalapillai & Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547).
Accordingly, counsel for the respondent Minister submits that a claim of jurisdictional error cannot be sustained. The 1st respondent has filed a notice of objection to competency objecting to the jurisdiction of the Court to try the application for review on these grounds:
a)Section 477(1A) of the Migration Act provides that:
An application to the Federal Magistrates Court in respect of a private clause decision must be made within 28 days of the notification of the decision.
b)The decision as a privative clause decision as defined in
sub-s.474(2) of the Migration Act.
c)The application for judicial review is made under s.483A of the Act.
d)The RRT decision was notified to the applicant on or about
11th March 1999.
e)The application for review was filed on 6th June 2005 which was not within 28 days of the notification of the RRT decision.
When the application was before the Court on 25th October 2005 the applicant complained that he had not had the benefit of legal advice from the pilot scheme provided for the benefit of applicants for review of decisions of the Refugee Review Tribunal. I noted that he had applied and a letter had been sent to a barrister on the panel by the Court registry on 27th June 2005. I noted that a copy of the Court book did not appear to have been forwarded to the barrister concerned.
I adjourned the proceedings to give the applicant the opportunity to obtain legal advice.
When the application came back to Court on 19th January 2006 I found to my disappointment that the member of the panel allocated to provide advice to the applicant had still not seen him. I directed that the person concerned should attend Court and confer with the applicant that afternoon making use of the interpreter who was available. I then adjourned the hearing until today.
I am informed today by the practitioner concerned that he has since provided advice to the applicant and will not be appearing for him in these proceedings. Whilst it appears that the practitioner concerned has been dilatory in carrying out his functions, I am now satisfied that the applicant has received the advice to which he is entitled under the RRT pilot scheme.
In oral submissions made to the Court today the applicant pointed out that he always suffers from car sickness and when he attended the Refugee Review Tribunal for a hearing he had never seen such a solemn thing before. He said he was very nervous. He complained that when the member asked him some questions he could not hear very clearly. He also took the view that the interpreter made some errors in translating from Mandarin into English and English into Mandarin.
He gave an example of difficulties with an interpreter which apparently had taken place at a hearing before the Migration Review Tribunal in September of last year. He speculated that errors made have occurred in the Refugee Review Tribunal proceedings.
He did not tell the Tribunal member at the time that there was any difficulty with the interpreter nor did he mention any difficulties relating to his car sickness. He told the Court that he had become car sick on the way into Court today and whilst his heart was beating more quickly than usual he did not otherwise complain of any ailment.
The applicant in answer to a question from the Bench as to why he had delayed for six years to commence Court proceedings said that he had not received the letter from the Refugee Review Tribunal. He denied that he had changed his address in that time. He indicated that he had been placed into immigration detention in about 1999 or 2000 for about a week and he was then released. He was subsequently apprehended and detained on 12th May 2005 and has remained in detention since that time.
He provided a written statement to the Court which I have read and considered. It is essentially a challenge to the factual findings of the Tribunal and his history of his involvement with the church, particularly the Catholic Church, since June 1978. He refers to circumstances of having been detained and badly treated by the police. He sets out his fears of ill treatment if he were to be returned to China and his fear of being thrown into a detention centre or gaol in China if he were to return. He indicates that if the worst came to the worst he would prefer to be a detainee in Australia because he would not suffer persecution or torture in this country. I would comment that I would certainly hope that no detainee in Australia would suffer persecution or torture.
The applicant's submission whilst moving is essentially a recital of factual matters and as the Court cannot conduct merits review it cannot take the matter any further.
I note that the applicant did not mention any problems with interpreters or car sickness in his post hearing written submission. The applicant told the Court that his knowledge of the Bible or his lack of it appeared to him to be a reason for his rejection by the Tribunal. That is certainly part of the reason.
The fact is that the Tribunal was not satisfied with the credibility of the applicant's claims. The Tribunal gave reasons for rejecting those claims and I agree with the submissions of counsel that the reasons given by the Tribunal made the findings open to the Tribunal. In short, there is no jurisdictional error. It is quite clear that the application has been commenced well out of time and the respondent's claim that the application is not competent because it has been commenced out of time must be upheld.
In any event, even if the applicant had made out jurisdictional error the lengthy and poorly explained delay would be sufficient to persuade the Court to exercise its discretion not to grant relief by way of a constitutional writ. It follows then that the application is not competent and the application must be dismissed with costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 6 February 2006
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