SZGNQ v Minister for Immigration - [2006] FMCA 1755

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGNQ v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1755

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a grant of refugee status – unexplained period of delay in commencing these proceedings – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 417, 483A
Racial Discrimination Act 1975 (Cth), s.10

Applicant M221/2003 v Minister for Immigration [2006] FCA 45
F Hoffmann-La Roche & Co AG v Secretary of State of Trade and Industry [1975] AC 295
Macabenta v Minister for Immigration (1998) 90 FCR 202
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185
SAAP v Minister for Immigration [2005] HCA 24

Applicant:

SZGNQ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1557 of 2005

Judgment of:

Lloyd-Jones FM

Hearing date:

15 November 2006

Delivered at:

Sydney

Delivered on:

12 December 2006

REPRESENTATION

Advocate for the Applicant:

Mr M Newman

Solicitors for the Applicant:

Newman & Associates

Counsel for the Respondents:

Mr J Smith

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application filed on 9 June 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1557 of 2005

SZGNQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 9 June 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

The Tribunal decision was made on 4 March 1996, affirming a decision of the delegate of the first respondent made on 6 June 1995, refusing to grant the applicant refugee status and a Domestic Protection (Temporary) Entry Permit (“DPTEP”). The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZGNQ”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
For the purpose of this application, the respondents tendered and applied for the affidavit of Angela Louise Radich, sworn on

8 November 2006 (“the affidavit of Ms Radich”) to be admitted into evidence. A Court Book (“CB”) prepared by the respondents’ solicitors was filed and served on 17 August 2005 and was read into evidence.

Background

The Tribunal decision of Martin Tsamenyi, reference N95/08253, provides background material in respect of this matter. The applicant is a national of Fiji and of Indian ethnicity. The applicant arrived in Australia on 29 April 1987 on a transit visa which was valid for 72 hours. The applicant’s attempt to seek refugee status has a long and complex history. The applicant’s first application for refugee status and a DPTEP was lodged with the Department on 23 October 1990. On or about 6 September 1993, a delegate of the Minister refused to grant the applicant refugee status and a DPTEP. The applicant’s application for review to the Tribunal was received by it on 21 October 1993. The Tribunal declined to accept the application as valid because it was lodged out of time. On 31 March 1994, the applicant lodged another application with the Department. This application was rejected by a delegate of the Minister on 6 June 1995 and on 26 June 1995, the applicant made another application to the Tribunal. The applicant attended the Tribunal hearing of 18 December 1995.(CB 81)
Mr Smith in his written submissions, provided a convenient chronology of events and I adopt that chronology:
18 March 1996 - Application to the Minister for exercise of discretion under s.417 of the Migration Act made on behalf of the applicant by Adrian Joel & Company, Migration Agents and Solicitors.
27 October 1997 -Applicant notified of decision to refuse the exercise of power under s.417.
11 November 1997 - The applicant advises the Department that she has lodged an application although she was not sure what that application was.
1 December 1997 - The applicant tails the Department that she has lodged a ‘Macabenta’ class action.
18 December 1998 - The Full Court dismisses an appeal in the “Macabenta” class action (this does not appear from the affidavit but from the authorised report: Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202)
22 March 1999 -The applicant joins the Muin and Lie class action.
18 June 1999 - High Court refuses special leave to appeal from the decision of the Full Court in Macabenta (this again, appears from the authorised report of Macabenta in 90 FCR 202 at 202)
20 June 2003 - The applicant’s involvement in the Muin & Lie class action finalised.
9 June 2005 - The applicant files the current proceed in this Court.

Applicant’s Claims

The written submissions of Mr Newman, solicitor for the applicant, contains a brief summary of the applicant’s claims, which I adopt for the purposes of this judgment:
1.She was raped by one or several indigenous people at her home;
4.Her house was stoned by indigenous people after the coup and her home destroyed;
5. Because of the stigma of defilement, in Indian culture the applicant suffered ostracism and exclusion;
6.The applicant’s husband deserted her when he was informed and refused to reconcile.
7.At work she was subject to racist insults;
8.Her temple was destroyed and she was left without a place of worship;
9.Her brother was attacked whilst at prayer and was injured; and
10. The applicant is fearful of returning.

Application for Review of the Tribunal’s Decision

On 9 June 2005, the applicant filed an application in this Court under s.39B of the Judiciary Act, setting out the following grounds:
The Tribunal erred in law and failed to exercise its jurisdiction by:
1. By finding that rape and consequential ostracism does not amount to persecution for a Convention reason.
Particulars
At page 11 of the Tribunal’s decision the Tribunal says, “The applicant’s evidence at the Tribunal indicated that she did not know who raped her.” Yet at page 10 the Tribunal says, “At the Tribunal hearing, the Applicant stated that she was raped by 2 Fijians at her home in Fiji when her husband was away.”

Submissions

Mr Newman, appearing for the applicant, filed an outline of submissions on 9 November 2006. Those submissions address the issue of the Tribunal making a jurisdictional error in finding that there was no evidence before it that the applicant was raped for a Convention reason. Mr Smith, appearing for the respondents, concedes that the Tribunal made a jurisdictional error, which ordinarily means that the Court would make an order setting aside the Tribunal decision and remitting the matter for consideration according to law. However,

Mr Smith argues that there was a considerable delay on the applicant’s part in commencing these proceedings in this Court. Therefore, the question for the Court is whether it ought to refuse to exercise its discretion to grant the relief sought. In light of this admission by the respondents, I do not believe it necessary to pursue the issues raised by Mr Newman in his written submissions. I will instead direct my attention to the oral submissions made by Mr Newman in respect of the question of delay.
Mr Newman directed the Court’s attention to Question 23 of the “application for refugee status in Australia” filed on 23 October 1990.(CB 5) The applicant had indicated that she attended Nabara Primary School in Suva, Fiji between 1964 and 1970. This was the only education she received. Question 25 of the same application form relates to employment history.(CB 6) The applicant indicated that she had worked as a packer for different periods for two different organisations and as a machinist for another. These were all unskilled employment positions. In response to questions about her family, she stated that she did not have a husband but had three children.(CB 7-8)
At Question 79 of the application to the Department, the applicant set out the circumstances in which she was attacked:
The native people always attack Indians at night time especially when we are sleeping at night time. Every time when I was attacked by them they tried to rape me before my family. Fijians throw stones and destroyed all my furnitures and even my house. If I report police they don’t want to take any action. I don’t want to go back to my country for me and my children’s lives are very danger. I was divorced from my husband and I am living now with my three children. After the coup in 1987 it’s almost impossible to find a job for an Indian for the government of Fiji declared that Fiji island is just for the native Fijians. There’s no opportunity to get a job and no future for Indian people in Fiji.(CB 21)
At Question 80, the applicant indicated that she was not “registered with any agency, organisation or group in Australia assisting refugees”.(CB 23)
The applicant’s profession in her Fijian passport was described as “domestic duties”.(CB 34) Further, a decree nisi was issued in the Suva Magistrates Court on 23 May 1983, dissolving the applicant’s marriage of 26 April 1974. A decree absolute was issued on

21 September 1983.(CB 48-49) A letter written by the applicant to the Department indicated that the coup in Fiji would leave her without support from her community.(CB 56-58) Mr Newman drew the Court’s attention to the Tribunal decision under the heading ‘Applicant’s reasons for claiming refugee status’ and in particular to the fourth point:
The Applicant is divorced and looks after three children. It is impossible for the Applicant to find a job in Fiji because of the government’s affirmative action in favour of Fijians.(CB 86)
Mr Newman submits that at different times the applicant had the assistance of various migration agents and solicitors. In 1990, she was represented by Hardy’s Immigration Professionals who prepared her refugee application. She also received assistance from Adrian Joel & Co, who lodged an application under s.417 of the Act on 18 March 1996.(Annexure “A”, affidavit of Ms Radich) Subsequently, the applicant joined the Macabenta class action and the Muin and Lie class action: Macabenta v Minister for Immigration (1998) 90 FCR 202; Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601. Mr Newman admits that none of these practitioners pursued judicial review of the Tribunal’s decision, but rather, requested the Minister at the time to exercise his discretion, or alternatively, to participate in various class actions. Mr Newman submits that because of the applicant’s limited education, her lack of opportunity in employment and the advice she received from the migration agents and solicitors, she had not pursued a challenge of the Tribunal decision, the most important element in her endeavour to obtain refugee status.
Mr Smith in his written submissions, submits that while it may be that where a party establishes a want or excess of jurisdiction, constitutional writs will issue almost as of right, the Court nevertheless retains a discretion to refuse relief if it is the proper course in the circumstances: R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 194. Two questions arise from this. The first is whether the Tribunal has acted in want or in excess of jurisdiction; the second is whether the writ should not issue, having regard to the delay, waiver, acquiesced or other conduct of the prosecutor of the applicant in the course of administrative proceedings or in any other relevant circumstances: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (“Aala”) at [53] per Gaudron and Gummow JJ.
Mr Newman also drew the Court’s attention to and relied upon Aala at [50]:
The position respecting refusal of prohibition was expressed in more general terms by Gibbs CJ in R v Ross-Jones; Ex parte Green. After referring to various authorities, including Australian Stevedoring Industry Board (in which the expression "in excess of its authority" was used with reference to the activities of tribunals), Gibbs CJ said:
"If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course."
However, I accept the submission by Mr Smith which referred to Aala at [52] - [53]:
52.The recognition of an element of discretion attending the exercise of the jurisdiction conferred by s 75 (v) with respect to prohibition involves "two separate questions". The first is whether the officers of the Commonwealth in question acted in want of or in excess of jurisdiction. The second is whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances. The denial of prohibition by reason of an adverse answer to the second question does not necessarily deny to the prosecutor the opportunity to vindicate any private law rights in appropriate proceedings. For example, damages or equitable relief may be sought for tortious injury to private or individual rights. In such actions, the parties are likely to be different and, in any event, the doctrine of res judicata may not be applicable.
53.The text and structure of Ch III do not suggest that prohibition should occupy any special position among the constitutional remedies provided in s 75 (v). The other two remedies specified there are attended by discretion. This is "well settled" with respect to mandamus. It is a remedy which does not go either as of right or as of course. The same certainly is true of the injunction where, as here, it is a public law remedy. In Annetts v McCann, Brennan J pointed out that a writ of prohibition or an injunction may be sought to restrain the exercise of a power where natural justice has not been accorded, this being "a failure to satisfy some condition governing the proposed exercise of the power". In other cases, upon analysis, an injunction with the same effect as prohibition quousque may be the appropriate remedy that is sought.(references omitted)
Mr Smith referred to F Hoffmann-La Roche & Co AG v Secretary of State of Trade and Industry [1975] AC 295 at 320 per Lord Denning MR:
He may be debarred from relief if he has acquiesced in the invalidity or has waived it. If he does not come with due diligence and ask for it to be set aside, he may be sent away with nothing. If his conduct has been disgraceful and he has in fact suffered no injustice he may be refused relief.(references omitted)
He submits that since constitutional writs are directed at acts or decisions of public bodies or officials, public interest requires that there be an end to litigation: Applicant M221/2003 v Minister for Immigration [2006] FCA 45 at [19].
Mr Newman submitted that F Hoffmann-La Roche & Co AG v Secretary of State of Trade and Industry concerned a large international chemical conglomerate and the dispute involved significant international trade issues. The question of delay in that case encompassed issues of commercial delay which are not relevant to the matter before this Court. I do not believe that the argument raised by Mr Newman in any way diminishes the principle contained in F Hoffmann-La Roche & Co AG v Secretary of State of Trade and Industry nor its relevance to these proceedings.
Mr Smith submits that the applicant did not explain why it took her so long to commence these proceedings. The chronology reveals that she was represented by solicitors and migration agents shortly after the Tribunal decision. Also that her s.417 application shows she was aware that the Tribunal had made its decision. Whether or not the s.417 application shows that the applicant acquiesced that the Tribunal decision was correct (a situation which is difficult in light of the fact that the s.417 application itself is not before the Court), what is clear is that she embarked upon a serious of actions, none of which were consistent with taking issue with the correctness of the Tribunal’s decision. First, an application under s.417 is an application for an exercise of executive power rather than judicial power, relating to the merits of the applicant’s personal circumstances rather than to the legal merits of the Tribunal decision. Secondly, the Macabenta class action involved a question of whether the granting of visas to people from particular countries (such as Fiji in this case) constituted a breach of s.10 of the Racial Discrimination Act 1975 (Cth).
Mr Smith submits that the respondents do not rely upon the period during which the applicant was a member of the Muin and Lie class action (26 March 1999 to 20 June 2003). However, there is an unexplained period of delay from 20 June 2003 to the commencement of these proceedings – a period of two years. Even if the Court were to accept that the period from the Tribunal decision and the joining of the Muin and Lie class action was not sufficient to warrant a refusal of relief because the applicant had taken some action to remain in Australia legally, the period after the Muin and Lie class action is so significant that it alone warrants a refusal of relief in this case.
Mr Smith submits that the applicant is legally represented in these proceedings but has not sought to put any evidence in respect of the period from June 2003 until these proceedings commenced in June 2005. Mr Smith argues that it can be inferred that no evidence that she could have brought before the Court would have assisted her.

Conclusion

Mr Newman for the applicant, made detailed submissions indicating that the applicant had received minimal education and had only ever worked in positions which provided limited opportunities. As a result of this background, the applicant was disadvantaged in seeking a protection visa. However, I note that at each stage of the respective applications the applicant was represented by either a registered migration agent and/or a solicitor with experience in immigration law. In the application to this Court, the applicant is represented by a qualified legal practitioner who regularly appears in this Court and holds himself out to be a practitioner in this area of the law. Despite this, there is no affidavit material before the Court, nor was the applicant called to provide sworn evidence to explain her delay in pursuing judicial review of the original Tribunal decision.

Mr Newman’s oral submissions do not address the issues raised in the respondents’ written submissions. The affidavit of Ms Radich contains documentary evidence of the litigation history of this matter. This affidavit was read into evidence and was unchallenged. Mr Newman has made no attempt to address the issue of delay which remains the sole issue for this Court in light of the concessions made by Mr Smith for the respondents. In the circumstances, I believe the application should be dismissed.

I am satisfied an order for costs should be made in this matter. I order the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 11 December 2006