SZGRC v Minister for Immigration
[2005] FMCA 1752
•30 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGRC v MINISTER FOR IMMIGRATION | [2005] FMCA 1752 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – issue of competency – exercise of discretion to deny relief – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 417, 426, 474, 483A
Judiciary Act 1903 (Cth), s.39B
R v Australian Broadcasting Tribunal; Ex parte Fowler & Ors (1980) 31 ALR 565
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
| Applicant: | SZGRC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1757 of 2005 |
| Delivered on: | 30 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 16 November 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Mr G Johnson |
| 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 |
SYG1757 of 2005
| SZGRC |
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), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 5 July 2005 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
25 February 1999, affirming the decision of the delegate of the respondent (“the delegate”) made on 20 October 1997 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.
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 “SZGRC”.
The respondent tendered and applied for two affidavits of Brooke Marie Griffin affirmed on 16 November 2005 (“the affidavits of Ms Griffin”) to be admitted into evidence. A Court Book (“CB”) prepared by the respondent solicitors was filed and served on 3 August 2005.
Background
The applicant, who claims to be a citizen of China, arrived in Australia on 30 August 1997. On 19 September 1997 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (CB pp.1-24). On 20 October 1997 the delegate refused to grant a protection visa (CB pp.27-35) and on 20 November 1997 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.36-39).
The applicant was born in Shanghai in 1959. He completed high school in 1977 and was employed by the Shanghai Yin Gang Company between then and August 1997. The applicant stated in his protection visa application that he had lived at the same address in Shanghai until August 1997. He obtained a passport on 8 July 1997 and arrived in Australia on 30 August 1997. The applicant stated that he did not have any difficulties obtaining his travel documents and that he left China legally (CB p.49).
In the applicant’s original protection visa application filed on
19 September 1997 under the section headed “Your reasons for claiming to be a refugee” the following questions and responses were noted (CB pp.17-20):
36.Why did you leave that country?
A.Please refer to the statement that will be provide later.
37.What do you fear may happen to you if you back to that country?
A.Please refer to the statement that will be provide later.
38.Who do you think may harm/mistreat you if you go back?
A.Please refer to the statement that will be provide later.
39.Why do you think they will harm/mistreat you if you go back?
A.Please refer to the statement that will be provide later.
40.Do you think the authorities of that country can and will protect you if you go back? If not, why not?
A.Please refer to the statement that will be provide later.
(Errors included)
The applicant’s statement was not forthcoming and the material contained in the Court Book does not disclose the full extent of the applicant’s claimed refugee protection (CB pp.17-20).
The applicant was apprehended and placed in Immigration Detention in the first half of 2005 for a breach of his visa conditions. On 5 July 2005 the applicant filed an application under s.39B of the Judiciary Act 1903 (Cth) seeking judicial review of the Tribunal decision made on
25 February 1999. The matter came before a Registrar of the Court on 28 July 2005 where consent orders were made setting out a timetable scheduling this matter for hearing on 16 September 2005. At the initial Registrar’s first court date directions hearing the applicant indicated that he wished to participate in the Pilot RRT Legal Advice Scheme (NSW) to assist him in his preparation for the hearing.
On 16 September 2005 it was established that the applicant had not been visited in detention by the Panel Adviser allocated to him under the Scheme so the matter was adjourned to 16 November 2005 to permit the applicant’s participation in the Scheme. As a consequence of the conference with the Panel Adviser the applicant filed an amended application on 11 October 2005. The significance of the amended application is set out in the reasons for this decision.
Reasons
Counsel for the respondent conceded that the Tribunal’s decision of
25 February 1999 contains a jurisdictional error. A summary of that jurisdictional error was set out in Counsel’s written submissions filed in this matter on 7 September 2005. I adopt paragraphs 2-6 of those written submissions for the purpose of this judgment:
[2]On 8 January 1999, the Tribunal had written to the applicant, a national of China, indicating that it had considered all of the papers relating to the application but was unable to make a favourable decision on that material alone. The applicant was advised by the same letter that he was entitled to come to a hearing of the Tribunal to give oral evidence in support of his claims. The letter asked that an enclosed “response to hearing offer” be completed and returned to the Tribunal by 29 January 1999. The letter further told the applicant: “If you do not respond by 29 January 1999 we will assume that you do not want to come to a hearing and the Tribunal may make a decision on your case without further notice”. The Tribunal’s letter dated
8 January 1999 included other matters, but these are the only parts that are presently important. A copy of the letter is at RD42-43 and the Tribunal’s description of it is at RD49.[3]No hearing date was ever fixed by the Tribunal. The applicant did not respond by the time specified in the letter.
[4]The Tribunal felt satisfied that it had discharged its obligation to provide the applicant with an opportunity to give oral evidence and that the applicant had effectively declined that opportunity (RD49.5). In those circumstances, the Tribunal determined the application on the evidence then before it. Unsurprisingly, in view of the Tribunal’s indication to the applicant that it could not make a decision in his favour on the available material, the Tribunal was not satisfied that the applicant met the criteria for the grant of the visa and the application was dismissed.
[5]It is significant that the Tribunal’s decision was made prior to the decision of the Federal Court of Australia (Cooper J) in Xie v MIMA (1999) 95 FCR 543. The relevant legislative provisions in Division 4 of Part 7 of the Migration Act 1958 (“the Act”) were, at the time of this Tribunal’s decision, the same as were considered in Xie and in the subsequent case of Cabal v MIMA [2001] FCA 546 (Wilcox, Whitlam and Marshall JJ).
[6]In the light of Xie at 550-551 ([19]-[27]) and Cabal at [18], it seems that a jurisdictional error was made by the Tribunal in this matter. That is because no hearing date was set and the Tribunal proceeded to decide the matter on the material already available without discharging its obligation under section 425(1)(a), as it then was, to give the applicant an opportunity to appear before it to give evidence. It is clear from Xie and Cabal that this consequence could arise notwithstanding the applicant’s non-response to the Tribunal’s letter. The position would have been different if a hearing date had been fixed and advised.
The applicant’s amended application filed on 11 October 2005 raised a distinct possibility that the Tribunal’s decision may be infected by a second jurisdictional error, in that the grounds pleaded state that the Tribunal had no power or authority to make a decision under review for the reason that the applicant had not lodged a valid application for a protection visa. The particulars in support of that ground were stated as follows:
“The applicant lodged a completed form 866 with the Department of Immigration on 19 September 1997 [RD 1 ff]. Although this purported to be an ‘application for a protection visa’ the applicant responded to each of the questions relating to his reasons for lodging the application with the words ‘Please refer to the statement that will be provide [sic] later.’ At no time did the applicant provide such a statement. The application, which may have been ‘inchoate’ at the time of lodgement, was never completed and was therefore not a valid application (see Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245; Minister for Immigration & Multicultural Affairs v “A” [1999] FCA 1679). Unlike the situation in Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906, the applicant did not remedy the fault when the case came before the Tribunal [RD 38], with the result that there was never at any time a valid application before the Tribunal.”
The pleadings also contained the ground that the Tribunal failed to exercise its jurisdiction by failing to invite the applicant to a hearing in accordance with s.426 of the Act as then in force. I do not believe it is necessary to pursue this ground any further because it is the same ground that the respondent has identified as a jurisdictional error. The Panel Adviser who assisted the applicant in the preparation of these pleadings made reference to the respondent’s submissions filed on
7 September 2005 and to the authorities cited in support of that submission. There was no further evidence or submissions in support of this second ground that was submitted by the applicant or on his behalf. However, in the circumstances the decision of the Tribunal made on 25 February 1999 contains at least one and possibly two jurisdictional errors. This was acknowledged by Counsel for the respondent and does not require any further examination.
The remaining issue to be considered by this Court concerns the unwarrantable delay by the applicant in filing his application for judicial review. The Tribunal made its decision on 25 February 1999 and there was a period exceeding six years before the applicant filed his application in this Court on 5 July 2005 seeking review of the Tribunal’s decision. The discretionary nature of a constitutional writ gives this Court a discretion to dismiss an application if there has been unwarrantable delay and that discretion can be exercised with or without deciding there has been a jurisdictional error: R v Australian Broadcasting Tribunal; Ex parte Fowler & Ors at 568.5 and 570.3.
Counsel for the respondent submitted by way of comparison, that, if the applicant had sought an enlargement of time from the High Court, the authorities indicate that the applicant would not be successful upon the material before the Court and needs to show exceptional circumstances even to obtain an enlargement of many months: Re Commonwealth of Australia; Ex parte Marks per McHugh J at 495-496, [13]-[17] and Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at [7].
The delay in obtaining legal advice or unavailability of legal advice, for example would not suffice to excuse such a long delay. Nor would an application to the Minister to exercise discretion under s.417 of the Act which is the situation with this applicant. The applicant made an application to the Minister to exercise discretion under s.417 of the Act on 2 August 1999 however on 8 February 2000 the Minister decided not to exercise his power under that section and the applicant was advised of that decision by letter dated 16 February 2000.
Counsel for the respondent also indicated the discretion of the Court that he relied upon was quite distinct from the existence or otherwise of statutory time limits and was not dependent on whether the Tribunal’s decision was a privative clause or decision within the meaning of s.474 of the Act: Plaintiff S157/2002 v Commonwealth of Australia.
The affidavit material tendered and read by the respondent in these proceedings contained correspondence between the solicitor representing the Minister and the applicant seeking an explanation from the applicant for the unwarranted delay that had occurred. The affidavits contained documents from the Department’s files which exist in establishing the parameters for this enquiry. The response forwarded by the applicant to this broad enquiry was that he was unaware of the outcome of the Tribunal’s decision and that he was under the impression that he had been provided with a tax file number and visa which entitled him to remain and work in Australia.
Counsel for the respondent requested that the applicant confirm his statements under oath and be subject to cross examination. It was briefly explained to the applicant the significance of formally making his claims under oath and being subjected to cross examination on those statements or alternatively the inference that this Court could draw if the applicant elected to decline making a formal statement under oath and thereby avoiding cross examination. The applicant indicated that he wished to make a formal statement and was willing to be cross examined on that material. The applicant and the interpreter both took the oath and the applicant gave sworn evidence.
During the course of cross examination a number of significant issues in the applicant’s explanation for the delay in the filing of his review application were exposed as being untruthful or unreliable. The examination brought into question the credibility of the applicant’s explanation for the delay. I am not satisfied that the applicant’s claim of total ignorance of the status of his Tribunal’s proceedings is truthful. Nor can I accept that he would execute an application to the Minister seeking the exercise of the Minister’s powers to substitute a more favourable Tribunal decision or alternatively grant a humanitarian visa without knowing why he was executing such a letter and for what purpose. I acknowledge that there may well be aspects of a migration agency’s operation where it has failed to keep their client accurately informed as to the status of his claim. However, it is difficult to accept that the applicant appears to have met the agent on a number of occasions, executed new documents, paid further funds and yet not be informed in any respects as to the progress of the matter. Consequently, I am not satisfied that the applicant is able to adequately explain the extensive delay between the Tribunal’s decision and the initiation of the application for review in this Court.
The remaining issue to resolve is whether the discretion of this Court should be exercised to dismiss the application because of the unwarrantable delay given that the decision of the Tribunal contained at least one jurisdictional error: R v Australian Broadcasting Tribunal; Ex parte Fowler & Ors at 568.5 and 570.3.
In the applicant’s original application he sought writs of prohibition and mandamus. The amended application sought to make a number of amendments to the original application but did not indicate that the constitutional writs were not pursued. 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 (“Aala”) at 136. The Court can, in the exercise of its discretion, “refuse mandamus” if good reason it shown for the discretionary refusal: R v Kelly; Ex parte Victorian Chamber of Manufacturers per Faulkiner J at 309 and also R v The Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aus) 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 Mayne Carrying Co Pty Ltd. Similarly, the Court has a discretion to refuse prohibition even if those the grounds have been established: Aala per 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.
An abuse of process can lead to the refusal of relief on discretionary grounds. McHugh J has recently identified this issue in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs at [80]:
“The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands.”
The applicant did not protect his rights by pursuing review of the Tribunal’s decision before the Federal Court as advised in the letter from the Tribunal dated 26 February 1999. The letter was addressed to the address listed in Form B of the applicant’s original application as well as the address of his agent notified at the same time. The action of pursuing discretionary relief from the Minister was an indication of the Tribunal’s decision. The action of seeking substituted decision by the Minister under the operation of s.417 can only be granted if the Tribunal’s decision has 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 of the Tribunal’s decision as being legally effective and which is now contrary to the position the applicant takes seeking to have the decision of the Tribunal set aside on the grounds of legal flaw.
Without the apprehension of the applicant by Compliance Officers of the Department, it is unlikely the applicant would 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 for his illegal status. The applicant claims that he was unaware of his status until informed by Compliance Officers at the time of his apprehension. However, the action to pursue a substituted decision by requesting the Minister to exercise his discretion is an acknowledgment that he would have been aware of this when asked by his registered migration agent to execute the letter in 1999 and received by the Minister on 9 August 1999. I believe it is appropriate in this circumstance to deny the applicant the relief sought.
Conclusion
I am satisfied 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-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 30 November 2005
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