SZGSN v Minister for Immigration
[2005] FMCA 1793
•23 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGSN v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1793 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – Applicant a citizen of People’s Republic of China – Applicant forgot to make a claim to the Tribunal that he was a refugee sur place – claim that Tribunal member should have known that he had a faulty memory and should have considered the claim anyway rejected. PRACTICE & PROCEDURE – Delay – where RRT decision made on |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.475A
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
R v Australian Broadcasting Tribunal; Ex parte Fowler & Ors (1980) 31 ALR 565
Naguit v Minister for Immigration [2005] FMCA 930
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 541
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283
King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres Australia Ltd (1949) 78 CLR 389
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 419
| Applicant: | SZGSN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 1808 of 2005 |
| Delivered on: | 23 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 23 November 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Pepper |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Leave to join Refugee Review Tribunal as a Respondent.
That the Application is dismissed.
That Applicant pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1808 of 2005
| SZGSN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 15th October 1998 after a hearing that took place on 13th October 1998. The Refugee Review Tribunal handed down its decision on 15th October 1998.
The decision of the Tribunal was to affirm the decision of the delegate of the Minister made on 19th June 1997 not to grant a protection visa to the Applicant.
Background
The Applicant is a citizen of China who arrived in Australia on 1st June 1996. On 28th June 1996 he applied for a protection visa claiming a well-founded fear of persecution on the ground of his political opinions. A delegate of the Minister refused this application on 19th June 1997. The Applicant sought a review of that decision by means of an application lodged with the Refugee Review Tribunal on 30th June 1997.
The Applicant attended a hearing of the Tribunal and gave oral evidence on 13th October 1998. He told the Tribunal that he worked for a company owned by his father and said that members of his family had suffered difficulties with the authorities after the Communist Party came into power in 1949. After the massacre in Beijing on 4th June 1989 he and members of his family sheltered one of the student leaders who had been involved. That person left their care in 1990 but was subsequently caught by border guards when he attempted to leave the country in Guangxi province. The Applicant said that his father was sentenced to two years in prison for sheltering the student leader and he himself was detained for approximately six months.
The Applicant said that his difficulties in China stem from his activities in 1990 when he assisted a pro-democracy activist. He told the Tribunal he was arrested in 1995 and detained for one year. He later stated that he was arrested in 1990, not 1995, but later reverted to his earlier account that he had been arrested in 1995. I note that the Applicant's written application to the Tribunal said in May 1990 some policemen broke into the family home and questioned his father and him.
In the end, my father was sentenced to two years imprisonment and I had been detained until the end of 1990.
The Applicant also says in his written application:
Early in September 1995 I was suffered the persecution again.
I was denounced to organise the political activities against Communist government, especially set up an illegal organisation. For this reason I was sent to a political class organised by the Public Security Bureau. It was a typical Chinese detention because I was not allowed to go to any place even including to go back home. I had to accept the re-education and do hard manual jobs for nearly a half year. In January 1996 the only house left by my ancestors was taken by the Chinese Army. My family even was not able to have a place to live. In such a terrible situation I had to decide to leave my home country so as to find a chance to save my family.
The Applicant told the Tribunal that if he were to return to China he would be subjected to persecution. The Applicant told that to the Court today.
Refugee Review Tribunal’s Decision
The Tribunal told the Applicant that his statements during the hearing contradicted the claims he had made in his application for a protection visa. The Applicant stated that he was ill as a child and he had poor short-term memory. This is at page 89 of the court book.
The Tribunal told the Applicant that after considering the inconsistent manner in which he presented his claims the reasons he gave for the inconsistencies and the nature of the claims the Tribunal had doubted that the Applicant had presented a truthful account of his circumstances in China. The Applicant responded that he could not return to China and that he had presented a truthful account of his circumstances.
After considering the discrepancies in the Applicant's statement and the reasons he provided for the discrepancies, as well as the nature of the claims, the Tribunal reached the conclusion that the Applicant did not present a truthful account of his circumstances in China. The Tribunal went on to say at page 93 of the court book:
It appears to the Tribunal that the Applicant fabricated all his claims in order to enhance his application for a protection visa. The Tribunal affirmed the decision not to grant the protection visa.
Applicant’s submissions
The Applicant did not commence these proceedings until he filed an application at this Court on 11th July 2005. The application was dated 6th June 2005. The Applicant said that he did not commence proceedings at the time because he was afraid to be caught by the Department of Immigration and Multicultural and Indigenous Affairs and would be returned to his country of origin. It was not until he was actually taken into detention after having come to the notice of the police for a traffic offence that the Applicant was incarcerated on 6th May 2005. He prepared his application for review, which I note was dated 6th June. He did not file the application. He was released on a bridging visa on 14th June. He told the Court that he was later taken back into detention on 5th July.
When asked why he had been released and then taken back into detention the Applicant said that it was a condition of his visa and he had been granted a bridging visa so that he could make arrangements to return to China. He did not return to China. He did not want to return to China so he did not do so and of course he was in breach of his visa, which in any event being a bridging visa would have expired. Thus, he was taken back into detention where he remains to this day.
The Applicant has made four claims. He seeks an order quashing the decision of the Refugee Review Tribunal. The grounds that he gives for this are first:
I am citizen of China who claims to have a well-founded fear of persecution for reasons of my political opinion under the Refugee Convention by the Refugees Protocol.
That is of course no more than a statement of his claim and it does not provide any ground for review of the Tribunal decision.
The next ground that the applicant gave was this:
The Tribunal failed to take relevant consideration into account to exercising its power to determine that the applicant is a refugee.
When asked by the Court what the Tribunal had failed to take into account the Applicant said that the Tribunal did not consider his claim according to law, but was not able to indicate what sort of a breach of the law there was.
The third claim was this:
The Tribunal failed to deal with the Applicant's sur place claim of persecution by reason of my political opinion.
I asked the Applicant about his sur place claim to ask what it was. The Applicant said that since he had left China he had heard that the police had gone to his wife and asked her questions about his whereabouts. My understanding of sur place claims is that it does not constitute a sur place claim as it does not relate to a change in circumstances in a person's home country that makes that person or puts that person in a position where he can no longer return because of a fear of persecution as a result of circumstances that have arisen.
In any event, I note that the Applicant did not mention this sur place claim either in his written application for review or in the oral evidence to the Tribunal. It was of course impossible for the Tribunal to consider a claim that was never put to it and would certainly not be obvious from any of the material.
The Applicant agrees that he did not mention it in his application because he had a poor memory. He had been arrested and beaten about the head and that has caused him memory loss. That is somewhat different from the claim that he told the Tribunal. The Applicant said that he was very nervous at the hearing and his brain was blank. It was because of the Applicant's memory loss, he said, that he did not remember to make his claim. The Tribunal, however, should have considered this claim because the Tribunal should have considered a matter that appears in the writings of Dr James Hathaway, a well-known author on refugee law, that people who have been subject to persecution, especially violent persecution, are quite likely to suffer memory loss.
The Applicant's argument is that the Tribunal should have been aware that he was likely to have suffered memory loss and that memory loss would have been a likely cause for his forgetting to include a claim about memory loss and a claim about being a refugee sur place. The Tribunal, however, should be aware that those circumstances arise and should therefore have addressed this claim that the Applicant forgot to make.
That is a novel argument. That is its only merit.
The Applicant also said that the Tribunal was in error of law. Those findings were open to it from my side, fact and evidence. That is no more than a statement that there was evidence upon which the Tribunal had it believed that evidence could have found in his favour. The fact is that the Tribunal did not believe his evidence. The Tribunal did not believe that the Applicant was telling the truth at all. The Tribunal considered that the Applicant had fabricated all of his claims to enhance his application for a protection visa.
Respondent’s submissions
Whilst it appears that there is no merit in any of the grounds, counsel for the Respondent, Ms Pepper, has pointed out that the delay by the Applicant in commencing these proceedings is both extraordinary and unwarrantable and is not the subject of any explanation whatsoever. For that reason she submits that the Court should exercise its discretion to dismiss the application. Ms Pepper points out the original application was filed in this Court on 11th July 2005, but the decision was handed down on 15th October 1998; over six years later. That is a very lengthy delay.
The Court has a discretion to dismiss an application for a Constitutional writ in cases where there has been an unwarrantable delay and that discretion can be exercised against an applicant without determining whether there has been any jurisdictional error (See R v Australian Broadcasting Tribunal; Ex parte Fowler & Ors (1980) 31 ALR 565 per Barwick BJ and Gibbs, Stephen, Mason and Aickin JJ; a decision of O'Dwyer FM in Naguit v Minister for Immigration [2005] FMCA 930; S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 541 and affirmed on appeal by the Full Court in (2004) FCAFC 283; and also per McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) HCA 24).
Counsel submits there is plainly unwarranted delay in this case justifying the withholding of relief. She refers to the King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres Australia Ltd (1949) 78 CLR 389 and submits from the judgment of McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 419 that a delay of more than a year should ordinarily lead to relief being refused in the exercise of the Court's discretion. In Marks, McHugh J made the point that where a person in the knowledge of a decision delays seeking relief, certainly in excess of 12 months, the Court should exercise its discretion to refuse that relief.
Conclusions
The delay here is very lengthy indeed. It is certainly considerably longer than the delay in either Re Commonwealth of Australia; Ex parte Marks and than the delay in S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs. The explanation given by the Applicant is not an explanation of any merit at all. The Applicant did not bring proceedings in the Court because he was afraid of being caught and afraid of being removed from Australia. I have said before that an applicant cannot rely on a deliberate choice to remain in the country as an unlawful non-citizen and avoid the Department of Immigration and Multicultural and Indigenous Affairs until that person comes under notice and is detained as an unlawful non-citizen as an excuse or any sort of an explanation for a lengthy delay in commencing proceedings. It is an unacceptable reason and an unacceptable practice and it is not one that this Court will sanction in any way.
To my mind, the length of the delay and the total lack of an acceptable explanation would justify the Court in exercising its discretion not to grant relief. The Applicant's explanation of his memory loss, totally unsupported by any medical evidence and indeed the subject of two different explanations, one to the Tribunal and one to this Court, is no explanation at all. Even if the Applicant had not taken such an extraordinarily long time until he brought these proceedings, the grounds that he has given are no grounds at all. There is no jurisdictional error. There is no reviewable error. The application should be dismissed and will be. It will be dismissed with costs.
I note that the Applicant himself said that he was released on a bridging visa after he had been taken into detention and was released on a bridging visa for the purpose of his leaving Australia. He did not leave Australia and hence he was taken back into immigration detention where he remains. In my view, the Minister for Immigration and Multicultural and Indigenous Affairs should make early arrangements for this Applicant to be removed from Australia at the conclusion of his legal proceedings.
The Applicant is to pay the First Respondent's costs in the sum of $5,000.00. I require a transcript of my reasons for this decision. The application will be removed from the list of cases awaiting finalisation. I have of course already made an order joining the Refugee Review Tribunal as a party.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 2 December 2005
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