SZGNO v Minister for Immigration
[2005] FMCA 1433
•30 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGNO v MINISTER FOR IMMIGRATION | [2005] FMCA 1433 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – issue of competency – exercise of discretion to deny relief. |
Migration Act 1958 (Cth), ss.91X, 417, 424A, 474
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
R v Kelly; Ex parte Victorian Chamber of Manufacturers (1953) 88 CLR 285
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
R v Transport Regulation Board; Ex parte Main Carrying Co Pty Ltd (1940) VLR 19
| Applicant: | SZGNO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1551 of 2005 |
| Delivered on: | 30 September 2005 |
| Delivered at: | Sydney |
| Hearing date: | 22 September 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Mr G Kennett |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1551 of 2005
| SZGNO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 15 June 2005 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 June 2001 and handed down on 18 July 2001, affirming the decision of the delegate of the respondent (“the delegate”) made on 28 February 2000 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZGNO”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 11 February 2000. On 17 February 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-26) (“CB”). On
28 February 2000 the delegate refused to grant a protection visa (CB pp.30-35) and on 21 March 2000 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.36-44).
The applicant’s claims were set out in a type written statement which he submitted to both the delegate and the Tribunal. The applicant claimed he ran a restaurant and had problems with the local authorities who coerced him into providing them with free meals. He claimed his problems with the authorities escalated when the site of his restaurant was resumed for industrial development. The applicant stated he organised a protest, prosecuted his case twice in the Courts and was subsequently detained when he refused to leave the premises.
He claimed the experience led him to become an activist in the Democracy Party. The applicant claimed his activities in the Party brought him to the attention of the security forces and he fled China using a passport in a false name (CB pp.57-63).
The Tribunal’s findings and reasons
The applicant’s testimony before the Tribunal raised two distinct issues, being that of his restaurant and his involvement in the Democracy Party. In respect of the restaurant, the Tribunal accepted the applicant’s evidence that he was coerced into providing free meals to the local officials but did not pursue recovery for these services through the avenues available. The applicant did not pursue debt recovery despite a well publicised anti-corruption campaign. The Tribunal also accepted that the municipal authorities resumed the applicant’s restaurant in what they considered to be the interests of economic development in Fuqing. The Tribunal found that the applicant may have been disadvantaged by the short time frame of the resumption notice and he may have felt he was underpaid for the property but he was able to take his grievance to two Courts of law. The Courts upheld the municipal government’s right to resume land as it did. The applicant’s first detention was likely lawful in that he did not vacate the premises in the time specified and was therefore removed. Although not clearly articulated by the applicant, the second Court case was probably a consequence of his detention. The Tribunal found that the applicant may have felt that he was left at a disadvantage but it would appear the course of events complied with Chinese law and could not be said to be persecutory. It appears the applicant’s restaurant was closed during 1999 while he was in detention.
He pursued his second Court case unsuccessfully during May 1999 and the Tribunal found that there was nothing during this part of the applicant’s testimony to give rise to support of a Convention related claim (CB pp.65-66).
The second part of the applicant’s testimony related to his involvement in the Democracy Party. He claimed he became a member in April 1998 and became more active in August 1999. The applicant stated that unemployment and disillusionment with the official processes made the Democracy Party an antithesis of wide spread corruption. The Tribunal accepted that the applicant saw the Democracy Party in this light and that he tacitly supported the Party. However, the Tribunal noted inconsistencies in the applicant’s claim regarding the date he joined the Party and became an activist. The Tribunal noted that the Democracy Party was not formed until late June 1998 and that the first branches were all in the northern provinces. The applicant had some familiarity with the Party’s philosophies. The Tribunal rejected the applicant’s claim that in Fuqing there were 400 members of the Party and each member was issued with a pager to enable communication between members. The Tribunal did not believe that a purchase on this scale would go unnoticed by the police. The Tribunal rejected the substantial part of the applicant’s evidence relating to the activities of the Democracy Party in the Fuqing province during 1998/1999. There were major inconsistencies between the applicant’s oral and written submissions (CB pp.64-65).
The Tribunal rejected the applicant’s claim that he was an activist or even a member of the China Democracy Party and found that the story about the applicant’s wife being detained in March 2000 was an embellishment to support his claim. The Tribunal rejected the applicant’s claim that he was on a wanted list and would be detained on his return to China in relation to activities associated with the Democracy Party. The Tribunal found that the applicant had not been harmed in the past for a Convention reason and the chance that he would so suffer in the reasonably foreseeable future was remote (CB p.69).
Application for review of the Tribunal’s decision
On 15 June 2005 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
1.I’m a citizen of China. If I go back to my country I will be risk of suffering persecution within the meaning of the 1951 Convention relating to the status of (RRT) Refugees and the 1967 protect relating to the status of Refugees.
2.Member of RRT failed to understand my claims and failed to consider relevant matters. Further particulars to be provided.
3.I seek relief under s38B of the Judiciary Act 1903 (Ch) on the grounds that the tribunal; a exceeded jurisdiction in arrival at the decision to affirm the respondent’s decision not to grant me a protection visa in the that it: I was not accorded natural justice. Further particulars to be provided.
4.The respondent refused to grant my protection visa application without any proper grounds and proper investigation. (Errors included)
The Law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Submissions
Counsel for the respondent, Mr G Kennett, advised the Court that he had received instructions from his instructing solicitors that the Minister conceded that the Tribunal had failed to comply with s.424A by not drawing the applicant’s attention, in writing, to material included in his primary visa application, which contradicted or undermined the applicant’s claim he was making to the Tribunal.
In rejecting the applicant’s claim to have been active in the Democracy Party, the Tribunal referred to “the divergence of the applicant’s testimony at the different stages of the refugee determination process” (CB p.67). In addition, the Tribunal rejected a claim that the applicant’s cousin had obtained a passport for him using his biographical details. The information that led the Tribunal to this conclusion was obtained from the material lodged in the primary visa application. The information included details shown in the passport, the applicant’s true biographical details which were shown on his identity card and the date of issue of the passport. Mr Kennett indicated that the Minister would only proceed in requesting the Court to exercise its discretion in respect of the issue of competency.
The applicant appeared self represented with the aid of a Mandarin interpreter. The concession by the respondent was explained to the applicant and indicated there was only a single issue before the Court. The applicant was invited to make submissions to the Court in respect of the period of delay between the date of notification by the Department that the applicant’s application under s.417 of the Act had been refused and the date of his application for judicial review of the Tribunal’s decision. The Department wrote to the applicant on
21 December 2001 indicating that his application under s.417 had been considered and was refused. The current application seeking judicial review was filed on 15 June 2005, a delay of three and a half years. The applicant made a number of statements from the bar table which did not specifically address the issue. The arguments in support of a request for the Court to exercise its discretion are set out in the written submissions prepared on behalf of the respondent by Mr Kennett.
I adopt paragraphs 17-21 of those submissions for the purpose of this judgment as follows:
17.In that event the Minister would submit that relief should nevertheless be refused, on discretionary grounds.
18.As noted above, nearly four years elapsed between the handing down of the Tribunal’s decision and the commencement of the present proceedings.
19.The Applicant evidently received the Tribunal’s decision on or before 31 July 2001, and requested the exercise of the Minister’s discretion under s.417 of the Migration Act. A letter from the Department to the Applicant dated 21 December 2001 told him that that request had been unsuccessful (CB p.70). The decision to pursue a request under s.417 might perhaps explain why judicial review proceedings were not commenced immediately.
20.However, no explanation is apparent (and none has been offered by the Applicant) as to why he waited until June 2005 to commence the present proceedings. In the circumstances, the proper inference is that the Applicant accepted the validity of the Tribunal’s decision and decided to seek to remain in Australia without a visa.
21.A further factor relevant to the exercise of discretion is that the Tribunal appears to have discussed with the Applicant, during the hearing, the problems with his account of how the passport had been obtained. This discussion occurred at least partly by reference to the contents of the passport and the Applicant’s biographical details (CB p.63). Denial of relief would therefore not perpetuate any substantial unfairness.
Reasons
The applicant in his submissions from the bar table indicated he was unaware that he remained in Australia illegally until his arrest in June this year by compliance officers. He stated that no one from the Department had informed him of his migration status. The applicant was invited to review the letter from the Tribunal dated 18 July 2001 which informed him that the Tribunal had decided that he was not entitled to a protection visa and had attached a copy of its decision and reasons which had been handed down on the same date (CB p.53).
In the Tribunal’s letter the applicant was advised that he was entitled to seek a review of the decision in the Federal Court. The letter advised that an application for review had to be filed with the Court within
28 days from the date of the letter. In respect of any review, the letter strongly advised that the applicant should seek legal advice if he wished to proceed to the Federal Court for a review of the Tribunal’s decision. The letter contained the following statement:
“If you have any questions about your current residency status in Australia you should contact your regional office of Department of Immigration and Multicultural Affairs.” (CB p.53)
A copy of the letter was also forwarded to Pricilla International Co of Sussex Street, Haymarket, NSW being the adviser nominated by the applicant. That same adviser was nominated as the applicant’s agent at the time of the filing of his original visa application in February 2000. All correspondence from the Department to the applicant had also been copied to Pricilla International Co. The applicant advised the Court that on the advice of his migration agent on 30 July 2001 an application was made to the Minister requesting an exercise of his discretion under s.417 of the Act. The applicant was advised in a letter from the Department dated 21 December 2001 that the Minister had considered the request and had decided not to exercise his power in this case
(CB p.70). The suggestion by the applicant that he was unaware of his immigration status after the decision of the Tribunal notified by letter dated 18 July 2001 was inconsistent with the application to the Minister on 30 July 2001 requesting the Minister to exercise his discretion under s.417.
The Minister has no discretion to depart from the Act or the Regulations in every day administration of the Act. However, if the Minister thinks it is in the public interest to do so, he or she is empowered to substitute a more favourable decision (from the applicant’s point of view) for the decision of the Tribunal (pursuant to s.417). Matters that might lead to substitution of more favourable decisions include:
a)Where the result was clearly unintended by the legislation;
b)Compassionate circumstances that would harm Australian citizens or permanent residents;
c)Exceptional economic or cultural benefit to Australia.
It is difficult to accept that the applicant, who had been assisted by a registered migration agent throughout the various steps since filing his original visa application, would not have aware of his migration status or his right to reside in Australia without a valid visa since July 2001. Further, the applicant’s statement that he was unaware until his apprehension by compliance officers in June 2005 that his continued residency in Australia in the absence of a valid visa was illegal is implausible. His statement that he believed Australia was a free country is belied by the fact that he had made the original visa application and challenged its refusal before the Tribunal followed by an application to the Minister. The application to the Minister confirms the applicant must have received notification from the Tribunal and that correspondence was interpreted and explained to the applicant. Consequently, the period between notification of the Tribunal’s decision and his application for judicial review in 2005 remains unexplained. I am satisfied that the applicant was provided with a competent interpreter in the Mandarin-English medium and that the Court was seeking from the applicant an explanation that he could provide to explain this delay.
The applicant seeks writs of prohibition and mandamus. The respondent submitted the Court has a broad discretion to deny mandamus to an applicant who has otherwise made out a good case: Re Refugee Review Tribunal; Ex parte Aala at 136. The Court can in the exercise of its discretion refuse ‘mandamus’ if good reason is shown or the discretionary refusal: R v Kelly; Ex parte Victorian Chamber of Manufacturers per Fullicker J at 309 and also R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd at 400. Delay can also be seen as an indicator of an election to waive complaint of any possible illegality: R v Transport Regulation Board; Ex parte Main Carrying Co Pty Ltd. Similarly, the Court has a discretion to refuse prohibition even though the grounds have been established. The respondent relied on the authority of Aala and in particular, the decision of Gaudron and Gummow JJ at 105-109, Kirby J at 136-137. Gleeson CJ at 89 and Hayne J at 144 agreed with Gaudron and Gummow.
The respondent submitted that the applicant did not protect his rights by pursuing review of the decision before the Federal Court as advised in the letter from the Tribunal dated 18 July 2001. The action of pursuing discretionary relief from the Minister was an indication of the applicant’s acceptance of the Tribunal’s decision. After such a substantial delay, it is now inappropriate to seek relief from a new judicial review. The action of seeking substituted decision by the Minister under the operation of s.417 can only be granted if the Tribunal’s decision had some legal effect. The applicant was assisted at this time by a qualified migration agent who should have been aware that to pursue a substituted decision from the Minister was an acceptance that the Tribunal’s decision was legally effective and which is contrary to the position the applicant now takes seeking to have the decision of the Tribunal set aside on the grounds of legal flaw.
Conclusion
In the circumstances, I believe it is appropriate that this Court exercise its discretion because of the substantial delay by the applicant in raising any challenge to the validity of the Tribunal’s decision handed down in July 2001. Without the apprehension of the applicant by compliance officers of the Department, the applicant is unlikely to have taken any action to pursue a judicial review. The applicant appears to have been willing to remain in Australia without a valid visa and without pursuing any remedy of his illegal status. The applicant’s claim that he was unaware of his status until informed by compliance officers at the time of his apprehension belies earlier actions in seeking a protection visa and challenging the initial rejection of the protection visa. The action to pursue a substituted decision by requesting the Minister to exercise his discretion is an acknowledgement that the delegate and the Tribunal had reached the correct decision and the applicant would have been made aware of this by his registered migration agent. I believe it is appropriate in this circumstance to deny the applicant the relief sought.
I am satisfied that an order that an order for costs should be made in this matter. I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 30 September 2005
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