SZGRL v Minister for Immigration
[2006] FMCA 632
•19 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGRL v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 632 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) Visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.483A |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Dranichnikov v Minister for Immigration (2003) 197 ALR 389 Kopalapillai v Minister for Immigration (1998) 86 FCR 547 Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 NAAH v Minister for Immigration [2002] FCAFC 354 NARE v Minister for Immigration [2004] FCA 554 Re Minister for Immigration; Ex parte Applicants S134/2002 (2003) 211 CLR 441 SAAP v Minister for Immigration [2005] HCA 24 SZDFO v Minister for Immigration [2004] FCA 1192 |
| Applicant: | SZGRL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1780 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 7 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 19 May 2006 |
REPRESENTATION
| Advocate for the Applicant: | Applicant appeared in person with the assistance of a Mandarin interpreter |
| Advocate for the Respondents: | Mr J Bird |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The application 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 |
SYG1780 of 2005
| SZGRL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS 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 7 July 2005, for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 29 January 1998, affirming a decision of the delegate of the first respondent made on 2 September 1996, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks unstated relief 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 “SZGRL”.
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].
Background
The Tribunal decision of Paula Cristoffanini, reference number: N96/12141 was made on 29 January 1998 and contains the following background material. The applicant claims to be a citizen of the People’s Republic of China. He arrived in Australia on 3 February 1996 and on 19 March 1996, lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 2 September 1996, a delegate of the Minister refused to grant the applicant a protection visa and on 16 September 1996, he applied to the Tribunal for a review of the delegate’s decision (Court Book (“CB”) 73).
The applicant was born in 1960 in Liaoning where he lived until he came to Australia. He completed his secondary education around 1978 and learned carpentry from his relatives whilst employed by them for two years. From 1980 to 1995 he worked as a carpenter in a Shenyang furniture factory. His wife and two daughters remain in China. He claims he had no future in China and that he fears that he would be persecuted as a political dissident for the rest of his life. He claims to have been involved in political activities in the late 1970s and again in 1995, and fears incarceration if he returns to China (CB 75).
The tribunal’s findings and reasons
A convenient summary of the Tribunal’s reasons are contained in paragraphs 3 to 8 of the first respondent’s written submissions prepared by Mr Bird:
3.The applicant applied to the RRT for review of the original decision on 16 September 1996. A written submission was forwarded to the RRT on 21 March 1997. This document sought to respond to some of the findings made by the delegate. He also stated that he had been involved in a play about the dictatorship of the Communist party. He had since heard that the play was banned by the municipal government in December 1996. The PSB conducted an investigation which resulted in the arrest of the company’s director and of other characters in the play. He stated that the PSB was also investigating his departure and his family warned him not to go back. He feared being arrested and imprisoned again.
4.The appellant attended a hearing at the RRT and gave oral evidence.
5.The RRT sent letters to the applicant notifying him of the outcome of its decision on 29 January 1998. These letters were sent by registered post to his home and mailing addresses. They clearly explained his judicial review rights and drew his attention to the time limits that applied.
6.The RRT was not satisfied that the applicant had a well founded fear of persecution within the meaning of the Convention. Its findings and reasons are set out at CB 78-81 and need not be repeated in detail.
7.The RRT did not accept that the applicant was a witness of credit. It considered his claims to be implausible. It rejected his claim to have been involved with a theatrical production critical of the government as a “fabrication” to overcome the problems identified by the primary decision maker.
8.It also considered that his ability to leave China legally demonstrated the absence of a well founded fear of persecution. It based this finding on independent country information which appears to have been discussed with the applicant during the hearing.
Application for review of the tribunal’s decision
On 7 July 2005, the applicant filed an application for review under s.39B of the Judiciary Act setting out the following grounds:
a)The Tribunal member failed to take relevant consideration into account to exercise it’s power to determine to the applicant as a refugee.
b)The Tribunal member make some errors in deciding the case.
c)The Tribunal member refused to accept the applicant has a well founded fear of persecution on Convention reasons.
d)The Tribunal member didn’t consider the application properly. (copied without alteration or correction)
Reasons
The applicant in these proceedings represented himself and made no oral or written submissions. The grounds in the original application are vague and unparticularised. At the time of the hearing, the applicant was in detention at the Villawood Immigration Detention Centre. The applicant first appeared before me for first court date directions on
2 August 2005, at which time he indicated that he wished to participate in the Court’s free Legal Advice Scheme. The applicant was allocated a panel lawyer under the Scheme. The matter was adjourned to
22 November 2005 for further directions. Unfortunately the applicant had not received his legal advice by that date and did not comply with any of the orders made on 2 August 2005. The applicant appeared before me again on 3 March 2006, at which time he indicated that he had now received his legal advice, but that he did not intend to file an amended application or any supporting affidavit material. The matter was set down for a final hearing on 7 April 2006. Although the applicant has been encouraged to prepare further material in support his application, he has declined to do so. When invited to make oral submissions to support his application, he also so declined.
The applicant forwarded to the Court a letter dated 15 December 2005, which said that he did not speak English and had no knowledge of the laws of Australia, nor could he afford a lawyer and did not know how to defend himself. He made a statement, which he requested the Court to read and to take into account. The letter contains an explanation of why he missed his initial Tribunal hearing and how the intervention of his agent enabled him to attend a rescheduled hearing. The letter then contains a series of complaints against the agent in respect to the manner in which she handled the applicant’s case. It proceeds to describe the circumstances which led the applicant to leave China and seek protection in Australia. The contents of this letter are in fact an attempt for an inadmissible merits review. Clearly merits review is not available in this Court: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259. In that case, Brennan CJ, Toohey, McHugh and Gummow JJ said at [31]:
…any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.
Merits review is an assessment of the appropriateness of a decision, as distinct from judicial review, which focuses on the lawfulness of an earlier decision. Merits review provides a complete rehearing of all the issues relevant to the application. Unfortunately, the applicant’s reliance on this letter appears to be the result of a mistaken view that the Court will conduct a rehearing of the merits of his original visa application. This is not part of the Court’s task and has been explained on numerous occasions, particularly by Allsop J in SZDFO v Minister for Immigration [2004] FCA 1192 and NARE v Minister for Immigration [2004] FCA 554 and also in the Full Federal Court in NAAH v Minister for Immigration [2002] FCAFC 354. The Courts cannot engage in merits review.
Mr Bird, appearing for the respondents, submits that the applicant made no attempt to explain or support his application for judicial review, which unlike merits review, focuses on the lawfulness of the earlier decision, not its appropriateness.
The Tribunal’s findings were based on the applicant’s credibility. The consequent rejection of the applicant’s claims was due to an adverse assessment of the applicant’s credibility, which is a matter for the Tribunal par excellence: Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407. The Tribunal explains its finding as follows (CB 79-80):
The Tribunal finds that the applicant’s claims of recent involvement in an anti-government play and his alleged difficulties in exiting China, which were first contained in the review application and subsequently made at the hearing, were fabricated to overcome the problems identified by the primary decision maker in relation to the applicant’s case for protection. The Tribunal believes that the claim of coming to the attention of the authorities as a result of his involvement in the play was made to give the applicant a new avenue to apply for protection as his earlier claim, even if it had been accepted, had taken place 20 years ago, when he was still at school, would have not been sufficient to support a well founded fear of persecution in the foreseeable future.
The Tribunal’s finding in this respect was open to it on rational grounds on the material before it and no error is disclosed in its treatment of the applicant’s credibility: Kopalapillai v Minister for Immigration (1998) 86 FCR 547. The Tribunal’s reasons for its decision, in the absence of any affidavit material, transcript or submissions, is the only evidence before this Court in relation to the conduct of the Tribunal hearing. Further, the Tribunal had, in relation to aspects of the applicant’s evidence, raised these issues with him during the course of the hearing.
The other substantial issue in respect of creditability relates to the applicant’s departure from China without intervention of the authorities. This is reflected in the Tribunal decision as follows (CB 80):
Finally, and most importantly, the applicant was able to leave China legally on a passport in his own name. Although he claimed that he obtained this with the assistance of others, information from authoritative sources (see above) indicates that it would not be possible for someone to depart the country with the proper documents if he was wanted by the authorities unless they were unusually well connected which the applicant agreed he was not.
The Tribunal formed the view that the applicant may not have attained the level of recognition and the standard of living to which he aspired but the problem of economic hardship was not the basis for the granting of a protection visa.
Mr Bird submits that the Court should exercise its discretion and dismiss the application on the basis of the applicant’s unwarranted delay in seeking traditional review. The Tribunal decision was made on 29 January 1998 and a copy of the decision and a covering letter from the Tribunal was forwarded to the applicant on the same date. Within that correspondence, it clearly states that if the applicant wanted the Federal Court of Australia to review his case he must seek that review within 28 days of notification of the Tribunal decision (CB 71). No application was filed until 7 July 2005, when the applicant had been placed in detention. This delay represents a period in excess of seven years. The application in this Court seems to only have been motivated by the applicant’s detention. The applicant did not attempt to explain this seven year delay. Mr Bird submits that, “relief under s.75(v) of the Constitution is, like prerogative writs generally, discretionary”: Dranichnikov v Minister for Immigration (2003) 197 ALR 389 at [33]; Re Minister for Immigration; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [90]. Further, Mr Bird submits that discretion and its exercise in respect of delay was referred to in SAAP v Minister for Immigration at [80] per McHugh J (see also Hayne J at [211] with Kirby J concurring at [174]):
The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary [59]. 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 [60]. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome [61]. [Footnotes omitted]
Conclusion
The applicant appeared before me as a self-represented litigant and that places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. Mr Bird has assisted the Court with written submissions, supplemented by oral submissions. As I have indicated, it is unfortunate that I have before me a very limited application with general and unparticularised grounds. He indicated that due to his lack of understanding of the language and the Court processes that he is unable to present submissions to the Court in support of his application. To fulfil my obligation, I have reviewed the contents of the Court Book prepared by the respondents’ solicitors, and in particular the decision of the Tribunal. I am satisfied that none of the grounds pleaded in the application can be sustained. Neither is it apparent that any other ground of review exists which suggests that the Tribunal has made a jurisdictional error in its decision to reject the applicant’s application for a protection visa. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order the applicant to pay the first respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 15 May 2006
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