SZGMN v Minister for Immigration

Case •

[2005] FMCA 1757

•

21 November 2005

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGMN v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1757

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 – credibility of Applicant’s evidence.

PRACTICE & PROCEDURE – 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 on 2 March 2002 but application not filed until 8 June 2005 – delay of more than 5 years and
3 months.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.474, 477(1A)

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703
Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260
Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 2125 ALR 733
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 (2005); 215 ALR 162
The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491

Applicant: SZGMN
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 1499 of 2005
Delivered on: 21 November 2005
Delivered at: Sydney
Hearing date: 21 November 2005
Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Mr Reilly
Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

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

  2. The application is dismissed.

  3. I RECOMMEND THAT the First Respondent Minister arrange for a psychologist to examine the Applicant.

  4. No order for costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1499 of 2005

SZGMN

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 that was made on 2nd March 2000 and handed down that same day.

  2. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs made on 26th September 1997, not to grant a protection visa to the Applicant. 

Background

  1. The Applicant is a citizen of China who arrived in Australia on 22nd June 1994. On 3rd July 1997 he applied for a protection visa, which was subsequently refused. He sought review of that decision by means of an application lodged on 3rd December 1997.

  2. The Applicant attended the hearing of the Tribunal on 2nd August 1999.  He told the Tribunal that he was at risk of persecution for his political opinions, or political opinions that may be imputed to him. He believed that he would be arrested and imprisoned on his return to China, because he would be suspected of having sold military secrets to another country.

  3. The Applicant told the Tribunal that his work involved designing parts for fighter planes. He said that he had paid a bribe to enable him to obtain a passport that described his occupation as “manager” rather than his real profession of engineer. The Applicant said that he lost favourable treatment after he spoke at a study meeting in 1992 and made critical comments about the Chinese government. 

The Refugee Review Tribunal’s findings and reasons

  1. The Tribunal stated that the Applicant's evidence was vague and inconsistent, about how he paid a very large sum of money that he claimed to have paid to obtain his passport. Whilst the Tribunal was satisfied that the Applicant had some technical skills, the Tribunal was critical of his evidence about involvement in or knowledge of military secrets, describing that evidence as “inconsistent, evasive and unconvincing” (at Court Book page 70).

  2. The Tribunal was not satisfied that the Applicant had knowledge of any military secrets, or that he would be suspected of having passed any military secrets to foreign governments. The Tribunal was not satisfied that the Applicant was at risk of arrest or imprisonment, or at risk of any harm for passing on military secrets. 

  3. Whilst the Tribunal accepted that the Applicant had spoken out against the Chinese government, and had, as a result, suffered the punishment of withdrawal of various privileges, the Tribunal was not satisfied that this punishment caused sufficient harm to amount to persecution. 

  4. The Tribunal was not satisfied that there was a real chance that the Applicant would suffer persecution if he were to return to China. The Tribunal was, therefore, not satisfied that any fear of persecution that the Applicant had was well founded.

  5. Accordingly, the Tribunal affirmed the decision not to grant a protection visa to the Applicant. 

The application for review

  1. The Applicant filed an application under the Judiciary Act 1903 (Cth) on 8th June 2005, after he was taken into detention.  In that application he seeks the following orders:

    (a)A writ of prohibition against the First Respondent; and

    (b)A writ of mandamus (although referred to as a writ of ‘mandarins’) compelling the Second Respondent to re-determine the application for a protection visa. 

  2. The application contains the following grounds:

    1.   If I go back to my country, I will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the Status of Refugees, and the 1967 Protocol relating to the Status of Refugees.

    2.   Member of RRT failed to understand my claim and failed to consider relevant matters.  Further particulars to be provided.

    3.   The Respondent refused to grant my protection visa application without any proper grounds and proper investigation. 

  3. The Applicant has not filed any Amended Application or any Written Submissions, which is hardly surprising for an inmate of an Immigration Detention Centre without legal representation. The solicitors for the Respondent Minister, however, have filed an affidavit of Imogen Mary Hartcher-O'Brien of 14th November 2005, to which she annexes an undated statement by the Applicant that was not in the Tribunal file but it was in the Departmental file. That statement sets out more details of the Applicant's claim and refers to discriminatory treatment meted out to his wife and child by the Chinese authorities. 

  4. I note that the copy of the statement appears to have a stamp on it, showing that it was received presumably by the Department on 11th February 1998.

  5. It appears that the Tribunal member read this statement, because at Court Book page 68 he states:

    The Applicant's claims are set out in written submissions to the Department, written submissions to the Tribunal, and oral evidence given to the Tribunal.

The respondent’s submissions

  1. The solicitors for the Respondents filed a document entitled “Respondent's written submissions” on 14th November 2005.  Those submissions were prepared by Mr Reilly of counsel.

  2. Counsel for the Respondent submits that it is apparent that the Applicant was unsuccessful because of the view that the Tribunal took of the facts. In particular its implicit conclusion that the Applicant was not credible and his essential claims were not true. Findings as to credibility are matters for the Tribunal par excellence.  (See Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407, per McHugh J [67]). He also submitted that so long as the Tribunal's credibility findings were open to it on the evidence, no error is demonstrated. (See Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9; and W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 per Tamberlin and R.D.Nicholson JJ at [64] to [69]. He submitted that the Tribunal's findings were open to it on the evidence for the reasons given in the Court Book.

  3. Similarly, whether conduct is sufficiently serious to amount to persecution is a question of fact and degree for the Tribunal alone.   (See Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 per Hill J at 269 – 270; Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 215 ALR 733 at [51] to [52] and a number of other authorities.)

  4. Counsel for the Respondents submitted that the application does not properly particularise any jurisdictional error in the Tribunal's decision, and in the absence of particulars raises no case to answer. The submission continues that there is no jurisdictional error in the Tribunal's decision, and thus it is a privative clause decision within the meaning of s.474 of the Migration Act.

  5. Counsel for the Respondents also raised the issue of delay by the Applicant in bringing the application, which should, he submits, lead the Court to refuse relief in the exercise of the Court's discretion. The application was not filed until 8th June 2005, more than five years after the decision was handed down on 2nd March 2000. 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]).

  6. Delay remains a basis on which relief may be refused, even if jurisdictional error is established. (See SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) HCA 24; (2005) 215 ALR 162 at [80], [174] and [211]). Counsel for the Respondent submitted that there is unwarranted and entirely unexplained delay of more than a year in this case which should ordinarily lead to relief being refused in the exercise of the Court's discretion. (See The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400; Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495-6).

Applicant’s submissions

  1. The Applicant did not file any written submissions, as I previously mentioned. Surprisingly, he told the Court that he had been in Immigration Detention since 24th September 2002.  He said that he had been at Villawood Immigration Detention Centre the whole time, and had been placed in solitary confinement on 15th May and remained there until 31st May 2005. 

  2. Disturbingly, he told the Court that he was placed in solitary confinement after he was interviewed by four Chinese people who knew all about him and secretly reported what he said. He said he asked them for their identities but they refused to disclose their identities. They just said that they came from China. He was concerned, because these people seemed to know all about him.

  3. I would ordinarily have been inclined to dismiss those comments without further consideration, except that in another case involving a long term detainee from the People's Republic of China, it was also asserted by the applicant that he had been interviewed by people whom he believed to be either from the Embassy or the Consulate of the People's Republic of China.

  4. Mr Reilly of counsel who appears for the Respondent recalled a similar allegation being made in an earlier case, but neither he nor his instructor had any instructions about the circumstances referred to by the Applicant.

  5. I would comment that if what the Applicant asserted is in fact true, it is perhaps a matter of some concern that applicants for refugee status should be interviewed in an immigration detention centre by officials of the Chinese government.  In my view it is something to which the Minister needs to have regard.

  6. I asked the Applicant why it was that he had only lodged an application in June 2005, in respect of a decision handed down in March 2000, as he had been in Immigration Detention since September 2002.  The only explanation he could give was that he had been preparing his appeal documents.  Bearing in mind that the only document that the Court has seen was a handwritten three page application filed on 8th June 2005, there appears to be precious little result for over five years of preparation.

  7. The Applicant told the Court that he had written to the Minister for Immigration and Multicultural and Indigenous Affairs, presumably to seek intervention and the substitution of a more favourable decision under the provisions of s.417 of the Migration Act.

  8. The Applicant told the Court that he had written those letters on 13th July 2005 and earlier on 28th October 2004. When asked why the Applicant had not made an application for review in the year 2000, he told the Court that he had never been sent a copy of the decision and his Migration Agent had just told him orally that his application had been unsuccessful.  He said that he had told his migration agent that the decision needed to be mailed to his address.

  9. When asked what he was doing between March 2000 and September 2002, when he went into detention, he said that he was preparing his documents for appeal. 

  10. Turning to the grounds of his application, the first ground asserts nothing more than he claims refugee status. As far as his second ground is concerned, that the RRT member failed to understand his claim and failed to consider relevant matters, the Applicant complained about the money that his migration agent asked him for, and complained that when he was unsuccessful, the migration agent asked him for $420.00 to lodge an appeal, presumably to the Federal Court. 

  11. He told the Court that he was forced to give the migration agent $420.00, but he was not treated well by his migration agent. He eventually went to another migration agent. He told the Court that the first migration agent prepared an application that did not bear any relation to the truth of his story, but the second migration agent prepared an accurate account.

  12. The Applicant complained about the Tribunal not making its own investigations, and believed that in some way the Tribunal had not shown him procedural fairness. He complained that he had been asked misleading questions, and gave as an example, the Tribunal asked him about things that he had done in particular timeframes. I am not satisfied that there is anything at all untoward about questioning in that manner.

  13. The Applicant told the Court about making protest statements about the Chinese government in Tiananmen Square.  There is no mention of that in the material given to the Department of Immigration and Multicultural and Indigenous Affairs, or to the Refugee Review Tribunal. 

  14. The Applicant holds the view that somehow the Refugee Review Tribunal disclosed personal information about him to the officials of the Chinese government who visited him in the detention centre.

  15. I am concerned that the Applicant's lengthy period in detention may have had some adverse psychological affect upon him, as some of his statements bordered on the paranoid. It is my view, and I propose to recommend, that the Respondent arrange for a qualified psychologist to examine the Applicant. 

  16. Even if I were satisfied that the Applicant had established any grounds for relief – and I am not – the lengthy and unexplained delay would of itself be a ground for refusing relief. This Applicant has provided no explanation of any degree of satisfaction as to why he knew of the decision of the Refugee Review Tribunal in March 2000, but did not lodge any application for review by a Court for more than five years until 8th June 2005, when he had even been in Immigration Detention since September 2002. Relief is discretionary, and lengthy and unexplained or unsatisfactorily explained delay justifies the Court in refusing relief.

  17. To my mind, even if I were satisfied that the Applicant had established jurisdictional error, it would, to my mind, be inappropriate to grant relief by way of a constitutional writ in the face of such delay.

  18. The application will be dismissed.

  19. I recommend to the Respondent Minister that the Applicant should be examined by a psychologist. As far as costs are concerned, I am not satisfied that there is any utility in making an order for costs. The Applicant has been in detention for such a lengthy period of time that he has no ability to access any funds, and such an order, to my mind, would be futile.  I make no orders for costs.

  20. I am of the view that the Respondent Minister would be well advised to make arrangements for the Applicant's removal from Australia at an early stage. 

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  29 November 2005

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