SZGRC v Minister for Immigration and Multicultural Affairs

[2006] FCA 729

FEDERAL COURT OF AUSTRALIA

SZGRC v Minister for Immigration and Multicultural Affairs [2006] FCA 729

MIGRATION – no point of principle

SZGRC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND THE REFUGEE REVIEW TRIBUNAL
NSD 2600 of 2005

MOORE J
7 JUNE 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2600 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:

SZGRC
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

7 JUNE 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent's costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2600 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:

SZGRC
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MOORE J
DATE:	7 JUNE 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Lloyd-Jones FM of 30 November 2005: SZGRC v Minister for Immigration [2005] FMCA 1752. The Minister for Immigration and Multicultural Affairs conceded that there was jurisdictional error in the decision of the Refugee Review Tribunal ("the Tribunal") of 25 February 1999. Nonetheless, his Honour refused relief on the basis of the appellant's unwarrantable delay in bringing the application for review to the Federal Magistrates Court. The Tribunal had affirmed the decision of a delegate of the Minister of 20 October 1997 refusing to grant the appellant a protection visa.

2. The appellant claimed to be a citizen of the People's Republic of China who had arrived in Australia on 30 August 1997.  He applied for a protection visa on 19 September 1997.  In his application, in response to the four major questions under the section "Your reasons for claiming to be a refugee", was written "Please refer to the statement that will be provide [sic] later".  No such statement was received by the Department of Immigration and Multicultural Affairs ("the Department").  On 20 October 1997, the Department wrote to the appellant advising that his application had been refused essentially for the reason that the appellant had not made any claims in relation to having a well founded fear of Convention based persecution.

   The Tribunal's decision

3. On 20 November 1997, the appellant lodged an application for review with the Tribunal.  Under the section headed "Your reasons for making this application" in the form, was written "Please see my statement.  I will provide later".  On 8 January 1999, the Tribunal wrote to the appellant informing him that it was not prepared to make a favourable decision on the material it had, and invited him to attend a hearing.  However, details of the time and date of the hearing were not provided.  The letter asked the appellant to complete an enclosed "response to hearing offer" form and return it by 29 January 1999.  No response was received.  On 26 February 1999, the Tribunal wrote to the appellant informing him that the Tribunal had decided he was not entitled to a protection visa, enclosing the decision and reasons for decision of 25 February 1999.  The Tribunal had not received any further information or statement from the appellant, notwithstanding what he had said in his application.  The Tribunal affirmed the delegate's decision because it was "unable to establish any relevant facts" on the basis of the limited material before it.

4. By letter received 9 August 1999, the appellant wrote to the Minister in effect asking the Minister to exercise the power under s 417 of the Act by substituting the Tribunal's decision with a decision granting a protection visa.  On 16 February 2000, the Department replied to the appellant advising that the Minister had decided, on 8 February 2000, not to exercise his power.  In 2005, the appellant was placed in Immigration Detention following his apprehension for breach of visa conditions.

   Federal Magistrate's reasons for judgment

5. On 5 July 2005, more than five years after the Department advised of the Minister's decision not to exercise the power under s 417, the appellant made an application to the Federal Magistrate's Court.  With the assistance of a solicitor appointed to advise him under the Federal Court Advice Scheme, an amended application was lodged on 11 October 2005.  Two grounds were raised.  The first was that there had been no valid application for a protection visa, and the Tribunal had no power or authority to make the decision it did.  The second, expressed in the alternative, was an allegation 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.

6. The Minister conceded that by reference to Xie v Minister for Immigration and Multicultural Affairs (1999) 167 ALR 188, jurisdictional error had been made by the Tribunal, as alleged in the second ground. That then raised the question of whether relief should be refused because of the delay in bringing the application. Evidence was given by the appellant seeking to explain the delay. The Federal Magistrate did not accept the explanation as truthful or reliable. In particular, his Honour did not accept that the appellant was completely unaware of the Tribunal's decision.

   The appeal and its disposition

7. The grounds identified in the notice of appeal are that the Tribunal failed to consider and exercise its discretionary power under the Act, and secondly, that "The judgment of Lloyd-Jones FM failed to consider the Tribunal decision no basis for making such a statement".  No written submissions were filed by the appellant.

8. The power to refuse relief for unwarrantable delay is a discretionary power.  In an appeal from the exercise of such a power, it is necessary for the appellant to demonstrate that there was some error of principle or some fundamental misapprehension of the facts when the discretionary power was exercised.  The appellant has not pointed to any such error in this appeal.

9. I have read the reasons for judgment of the Federal Magistrate.  It is not apparent to me that any error attended the exercise of the discretionary power to refuse relief.

10. The appeal should be dismissed with costs. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             13 June 2006

The Appellant appeared in person

Counsel for the First Respondent	G T Johnson
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	7 June 2006
Date of Judgment:	7 June 2006