SZGNM v Minister for Immigration - [2005] FMCA 1158

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGNM v MINISTER FOR IMMIGRATION

[2005] FMCA 1158

MIGRATION – Visa – Protection Visa – Refugee Review Tribunal – delay – inordinate delay as a bar to discretionary relief – where applicant did not commence proceedings for over four years – competency – objection to competency.

Judiciary Act 1903 (Cth), s.39B

Applicant:

SZGNM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1546 of 2005

Delivered on:

4 August 2005

Delivered at:

Sydney

Hearing date:

4 August 2005

Judgment of:

Scarlett FM

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Mr Lloyd

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1546 of 2005

SZGNM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal. The decision was handed down on 6 February 2001. The hearing took place on Thursday 7 December 2000. At that stage, there were two Applicants. Those Applicants were this gentleman, who has made his application to the court today, and his wife. The wife has not made an application to this court for review of the decision.
The Applicant sought a review by the Refugee Review Tribunal based on two grounds. First that the wife was a Falun Gong practitioner and she had become an instructor. She believed that if she were to return to China she would be persecuted as a follower of Falun Gong. The other reason, brought by both Applicants, was their concern about the One Child Policy in China. They, at the time, had one child and the wife was pregnant with the second child. That second child was, in fact, born in January 2001, after the hearing but before the decision was handed down.
The Applicants put to the Tribunal that their child that they were expecting at the time would suffer if they were obliged to return to China. In fact, the Applicant said today that if his children were to return to China they would be regarded as black people with no rights to education or social security benefits. The Applicant fears that his children would be discriminated against to the point of persecution.
I have read through the Tribunal’s decision. It is clear that the Tribunal considered both the claim of a fear of persecution for being Falun Gong practitioners and the claim of fear of persecution for a breach of the One Child Policy. At page 55 of the Court Book the Tribunal member noted that any practise of Falun Gong that the Applicants had undertaken in the past two and a half years had been of a private nature and they had not made public their practise of Falun Gong. The Tribunal was not satisfied that they would be subject to persecution on those facts.
The Tribunal also considered the effect on the Applicants if they were to return to China with a new baby in breach of the One Child Policy. The Tribunal, at pages 56 and 57 of the Court Book, considered independent information from the Department of Foreign Affairs and Trade. The Tribunal was satisfied that neither the new baby nor the parents would be persecuted on their return to China. The Tribunal did find that the Applicants would, in all probability, have to pay a fine, perhaps a substantial fine. The Tribunal did not find that the application of a law of general applicability and one of which the Applicants were aware could be described as persecution.
The Respondent Minister has also raised the question of delay by the Applicant in bringing these proceedings. This has been done by means of a Notice of Objection to Competency. The Minister’s counsel, Mr Lloyd, points out that an application to this court for relief of the type sought should be made within 28 days of the notification of the decision of the Tribunal. This is provided by sub-section 477(1A) of the Migration Act. This application is more than four years out of time. The breach of the time limit in sub-section 477(1A) would not be a difficulty for the Applicant if the court were to be satisfied that the decision of the Tribunal was not a privative clause decision. In other words, if a consideration of the merits of the Applicant’s claim showed that there had been a jurisdictional error of some sort, then the decision would not be a privative clause decision.
I should explain, and make it clear, that when I referred to the merits of the Applicant’s claim I am referring only to the merit of the Applicant’s application to this court and not to the overall factual basis of the claim for a Protection Visa. It is, of course, well established that the court does not have jurisdiction to reconsider the merits of a claim for a Protection Visa as matters of fact are solely a question to be decided by the Tribunal.
I have looked at the Applicant’s application carefully. There are set out four grounds of the application in paragraphs (a), (b), (c) and (d). Paragraph (a) only refers to the Applicant’s factual position as an applicant for a Protection Visa. Paragraphs (b) and (d) together refer to a claim that the Tribunal made an error of law. I have asked the Applicant about his claim of an error of law, bearing in mind that he is not fluent in English and needed some help in preparing his application. Paragraph (b) says that there was an error of law because the findings were open to the Tribunal from the Applicant’s side and on the Applicant’s evidence. Paragraph (d) says there was an error of law, whether or not that error appeared on the record of the decision.
I asked the Applicant to explain that claim further and he said that the error related to what he perceived to be an impulsive decision by the Tribunal, or the fact that the Tribunal had rushed to get the decision through without considering the matter properly. I’m not satisfied that that is the case. The hearing took place at the end of the first week in December and the decision, which is quite comprehensive, was not made until 15 January. There does not seem to me to be any evidence of undue haste in preparing a decision or of matters being overlooked or incorrectly considered.
Paragraph (c) of the application says, and I quote:
The Tribunal failed to take in an irrelevant consideration into account in the exercise of a power.
I accept that the application was prepared with the assistance of another person because the Applicant’s command of written English is not sufficient to allow him to prepare the application himself. I have taken this ground to mean that the Tribunal either failed to consider a relevant consideration or considered an irrelevant consideration in exercising its power. I put this interpretation to the Applicant with the assistance of the Mandarin interpreter, Mr Chen, and he agreed that that was an appropriate way to consider his claim.
The Applicant said that the Refugee Review Tribunal did not take into account the fact that he would face persecution by the Chinese Communist Party upon his return to China. He said that persecution would arise from his Felon Gong practice and particularly from having the second child. He said that the Tribunal did not conduct a proper investigation of his case and only referred to documents and material provided by the Department of Immigration and Multicultural and Indigenous Affairs. I am not satisfied that this ground has been made out.
The decision shows that the Tribunal took into account material from the Department of Foreign Affairs and Trade. The Tribunal does not have an obligation to conduct an independent investigation of an Applicant’s claim. It is the task of the Applicant to provide to the Tribunal material that will support the Applicant’s claim. In my view, the Applicant has not shown that there was any error of law, or a failure to take into account a relevant consideration, or the taking into account of an irrelevant consideration.
Both on the Applicant’s case and on my own independent reading of the decision, I am satisfied that no jurisdictional error has been made out. As such, the decision is a privative clause decision and the Court has no jurisdiction to review it. The Respondent is therefore correct in objecting to the competency of the application under sub-section 477(1A) of the Migration Act. In any event, even if I were to be satisfied that the Applicant had established a ground for relief, I am not satisfied that this is a case where the Court should exercise its discretion to grant that relief. This is because of the lengthy and unwarrantable delay in seeking relief from the Court.
The decision was handed down on 6 February 2001 and the Applicant did not lodge an application for relief until 15 June 2005. The Applicant says that at the time the decision was handed down he was preoccupied by the fact that his wife had given birth by caesarean section at the end of January 2001 and he was concerned about the welfare of his wife and the new baby. He also submitted that his migration agent had not speedily informed him of the decision. I am not satisfied that that is an explanation for a delay of more than four years.
The Applicant has been in immigration detention for approximately two years and two months. It is most unusual for an applicant to delay, for even two years after being taken into detention, before bringing an application. The Applicant was aware that his application for a Protection Visa had been refused and that he had no visa which allowed him to remain living in Australia. He did not do anything about that. It is perhaps relevant that the Applicant’s wife and child were not taken into detention and apparently remained in the community. Nevertheless, the delay in bringing these proceedings is so great that even if I were to be satisfied that a ground for relief had been made out, I would not be persuaded that there was a ground for exercising the court’s discretion in favour of the Applicant.
It is for all of those reasons that the application is dismissed.
There is an application for costs for a lump sum of $5500. The Applicant has been wholly unsuccessful in his application and I am satisfied that this is a proper matter for an order for costs in favour of the Respondent. The amount sought is $5500 of which $2000 is set as Counsel’s fees and $3500 as solicitor’s costs, estimated at 75% of the solicitor/client costs. In my view, this is a calculation that comes well within the scale provided by the Federal Magistrates Court Rules and I propose to order accordingly.
The Applicant is to pay the Respondent’s costs, fixed in the sum of $5500.
I require a transcript of my reasons for this decision. The Applicant may be returned to his former detention.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: Virginia Lee

Date: 16 August 2005