SZGML v Minister for Immigration

Case •

[2005] FMCA 1731

•

25 November 2005

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGML v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1731

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 – delay – delay of more than 7 years.

PRACTICE & PROCEDURE – Delay – where decision of RRT made on 29 September 1997 – where application for judicial review filed 6 June 2005.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474

R v Australian Broadcasting Tribunal; Ex parte Fowler & Ors (1980) 31 ALR 565
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 132
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Minister for Immigration & Multicultural Affairs v Bhardwaj (2001-2002) 209 CLR 597
Macfox v United African (1962) AC 152
Harkness v Bells Asbestos [1967] 2 QB 729
The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283
SZCTH v Minister for Immigration (No.2) [2004] FMCA 284
SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1528

Applicant: SZGML
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 1490 of 2005
Delivered on: 25 November 2005
Delivered at: Sydney
Hearing date: 14 October 2005
Judgment of: Scarlett FM

REPRESENTATION

Counsel for the Applicant: Mr Killalea (pro bono)
Counsel for the Respondent: Mr G. T. Johnson
Solicitors for the Respondent: Phillips Fox

ORDERS

  1. Leave granted to join the Refugee Review Tribunal as a party to the proceedings.

  2. Refugee Review Tribunal is joined as Second Respondent.

  3. That the Application is dismissed

  4. That the Applicant is to pay the First Respondent’s costs fixed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1490 of 2005

SZGML

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal made on 29th September 1997. The Tribunal forwarded a copy of the decision to the Applicant under cover of a letter of the same date. The decision of the Tribunal was to affirm the decision of a delegate of the Minister for Immigration and Ethnic Affairs not to grant a protection visa to the Applicant.

Background

  1. The Applicant arrived in Australia on a Malaysian passport on 10th September 1995. He lodged an application for a protection visa on 28th September 1995. A delegate of the Minister refused his application on 29th February 1996, and on 26th March 1996 he applied to the Refugee Review Tribunal for a review of that decision.

  2. The Applicant attended a hearing of the Tribunal on 17th September 1997 and gave oral evidence. He told the Tribunal that he was a Chinese national who had played a leading role in organising two demonstrations and a strike at the factory in China at which he worked. Eventually he was arrested, questioned and tortured by the police for a period of two weeks in an attempt to make him give up his political ideology. After that, he was imprisoned for four months. He said that he was hospitalised because of the injuries that he sustained during his torture.

  3. After the Applicant was released he organised another detention in February 1995. This led to his arrest, questioning, beating, torture and hospitalisation. He was dismissed from his job. He said that he escaped from the hospital and left China on false documentation.

The Tribunal’s Findings and Reasons

  1. The Tribunal was satisfied that the Applicant is actually a citizen of China, as he claimed. The Tribunal accepted that the Applicant does not support the prevailing political ideology of the Chinese government and that he may have been involved in organising workers’ protests, that he may have been detained and questioned and that he may have been dismissed because of his activities.

  2. The Tribunal had reservations about some of the Applicant’s claims, finding at Court Book page 71 that his accounts of some events “were not entirely plausible”.

  3. The Tribunal did not accept that the Applicant would have failed to mention his participation in the 1989 pro-democracy demonstration in Fuzhou and the resulting 6 month work period on a farm if it had in fact occurred. In addition, the Applicant gave different accounts of his torture on two occasions, leading the Tribunal to doubt the credibility of this aspect of his claims.

  4. The Tribunal found that there was no credible evidence that the Applicant was involved in protests advocating broader political reform nor did the Applicant claim any involvement in groups seeking to form an independent trade union.

  5. The Tribunal did not consider that the Applicant would face a real chance of persecution if he were to return to China. The Tribunal member said, at Court Book pages 72-3:

    It seems to me to be highly improbable that, against a background of major and rapid change, the authorities would pursue an individual such as the applicant whose involvement was limited to organising three workers’ protests or demonstrations and participating in the organisation of two other workers’ demonstrations from 1993 to 1995.

  6. The Tribunal affirmed the decision of the delegate not to grant a protection visa.

The Applicant’s Application

  1. The Applicant filed an application under s. 39B of the Judiciary Act 1903 on 6th June 2005, after he was taken into Immigration detention. He filed an Amended Application on 1st August 2005. His counsel, Mr Killalea, who appeared pro bono publico, then filed in court a 2nd Further Amended Application Under s. 39B Judiciary Act 1903 and s. 475A Migration Act 1958.

  2. In the 2nd Further Amended Application, the Applicant relies on the following grounds:

    1. The RRT failed, or constructively failed, to exercise jurisdiction, by reason that the RRT denied the Applicant procedural fairness.

    2. The RRT failed, or constructively failed, to exercise jurisdiction, by reason that the RRT failed to consider an integer of the Applicant’s claim.

  3. The particulars of Ground 1 are that:

    a)The RRT found that “The different accounts of the methods of torture claimed by the Applicant have led me to doubt the credibility of this aspect of his claims” but did not put the issue of those purportedly different accounts to the Applicant for his comments; and

    b)The RRT found as above but did not take into account that the Applicant claimed separate beatings in January 1994 and March 1994.

  4. The particulars of Ground 2 are that the RRT made the finding referred to above but did not take into account that the Applicant claimed separate beatings in January 1994 and March 1994 and proceeded to determine the Applicant’s application for a protection visa without considering his claims of torture on three separate occasions.

Delay

  1. Counsel for the Respondent Minister, Mr Johnson, has raised the question of the Applicant’s delay in commencing proceedings and the absence of any satisfactory explanation excusing that delay. He refers to the affidavit of Adele Alex, solicitor, sworn on 13th July 2005, to which is annexed a copy of a letter dated 29th September 1997 from the Refugee Review Tribunal to the Applicant, informing him of the decision and enclosing a copy of that decision.

  2. The Applicant filed his application for review at this Court on 6th June 2005. It can be seen that there has been a delay of over 7 years and 8 months in commencing proceedings.

  3. For the Applicant, Mr Killalea submitted that the Applicant had been warned after the RRT had affirmed the decision of the delegate that he was unlikely to succeed on judicial review of that decision. The submission continued:

    ·The Applicant feared return to China and so remained in Australia; presumably without a visa from about November 1997.

    ·The Applicant’s explanation for delay (implicitly if not expressly: fear of harm if returned to China) in instituting the present application is manifestly reasonable in human terms.

  4. For the Respondent Minister, Mr Johnston submitted that, because of the discretionary nature of a Constitutional writ, the Court has a discretion to dismiss the application if there has been unwarrantable delay. That discretion can be exercised with or without deciding whether there was jurisdictional error: R v Australian Broadcasting Tribunal; Ex parte Fowler and Ors (1980) 31 ALR 565 at 568.5 and 570.3.

  5. If the Applicant had sought an enlargement of time from the High Court, he could not have succeeded upon the material before the Court and would have needed to show exceptional circumstances even to obtain an enlargement of many months: e.g. Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 per McHugh J at 495-496 [13] – [17]; M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 132 at [7]. A delay in obtaining legal advice would not suffice to excuse such a long delay, nor would an application to the Minister to exercise discretion under s. 417 of the Migration Act.

  6. The discretion of the Court that the Respondent Minister now relies upon is quite distinct from the existence or otherwise of a statutory time limit and is not dependent upon whether the Tribunal’s decision was a privative clause decision within the meaning of s. 474 of the Act (as understood in the light of Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

  7. Mr Johnson submitted that, quite apart from whether there is any reviewable error in the decision of the Tribunal, the Court should dismiss the application in the exercise of its discretion on the grounds of unwarrantable delay, especially because of the great length of delay in this case and the absence of any evidence excusing it.

  8. In reply, Mr Killalea for the Applicant submitted that M70 of 2002 v MIMIA (supra) is not an apt authority for this matter, and nor is Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 (referred to in M70), because this matter does not invoke the Constitutional writs. In this matter, a declaration of right is sought.

  9. He went to submit that a decision made in the absence of jurisdiction is a nullity: Minister for Immigration & Multicultural Affairs v Bhardwaj (2001-2002) 209 CLR 597. Further, there is no obligation on a party the subject of a decision made in the absence of jurisdiction, to take judicial action in respect of the purported decision: Macfox v United African (1962) AC 152 at 160.2; Harkness v Bells Asbestos [1967] 2 QB 729 at 736F.

  10. The Applicant’s submission is that the lapse of time is irrelevant to the issue of whether the matter ought to be remitted to the RRT.

Conclusions

  1. In my view, the Applicant’s argument is misconceived. 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 would ordinarily lead to relief being refused in the exercise of the court’s discretion (see Re Commonwealth of Australia; Ex parte Marks (supra)).

  2. Similarly, even if jurisdictional error were established, it does not follow that an application may be made under s. 39B of the Judiciary Act in respect of a decision at any time. The common law principles relating to delay apply. The s. 39B jurisdiction is parallel to that of the High Court, so the High Court case law provides appropriate guidance as to the proper approach to the exercise of the discretion to decline to intervene on the ground of delay (see SZCTH v Minister for Immigration [2004] FMCA 284).

  3. An application for a declaration of right offers little remedy to an Applicant in this case, nor can an application be remitted to the Refugee Review Tribunal for rehearing and redetermination without an order in the nature of mandamus.

  4. A delay of over seven years is an unwarrantably long delay, especially without any satisfactory explanation. It is significantly longer than the delay of 4 years and 11 months in S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283, where the Full Court of the Federal Court held that it was eminently open to the trial Judge to characterise the appellant’s delay as ‘poorly’ or ‘unsatisfactorily’ explained.  

  5. The Applicant was notified of the decision but chose to do nothing about it, and his Bridging visa soon expired. From then on, he remained living in the community as an unlawful non-citizen until he was located and taken into immigration detention. It is a likely inference that he would not have even commenced these proceedings had he not been located.

  6. The submission by counsel for the Respondent Minister is clearly correct, and I am satisfied that the length of the delay and lack of a satisfactory explanation requires that the Court should, in the exercise of its discretion, refuse to grant relief.

  7. The application will be dismissed with costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  22 November 2005

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