SZGSN v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 308

FEDERAL COURT OF AUSTRALIA

SZGSN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 308

SZGSN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 2416 OF 2005

EDMONDS J
18 APRIL 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2416 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGSN
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

EDMONDS J

DATE OF ORDER:

18 APRIL 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 2416 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGSN
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	EDMONDS J
DATE:	18 APRIL 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

EDMONDS J:

INTRODUCTION

1. This is an appeal from the Federal Magistrates Court (Scarlett FM) dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) to refuse to grant the appellant a protection visa.

   BACKGROUND

2. The appellant, a 36 year old citizen of the People’s Republic of China, arrived in Australia on 1 June 1996.  On 28 June 1996 he lodged an application for refugee status with the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) pursuant to the Migration Act 1958 (Cth) (‘the Act’).

3. On 19 June 1997 a delegate of the Minister refused the grant of a protection visa after the appellant did not attend the interview.  On 30 June 1997 the appellant applied to the Tribunal for a review of the delegate’s decision.

4. On 3 September 1998 the appellant was invited to give evidence at a hearing before the Tribunal on 13 October 1998, and was informed that the Tribunal was not prepared to make a decision in the appellant’s favour based on the material provided to it.  The appellant accepted that invitation.

5. The Tribunal hearing took place on 13 October 1998 during which the appellant
   gave oral evidence with the assistance of a Mandarin interpreter.

6. The Tribunal affirmed the delegate’s decision on 15 October 1998.

   THE TRIBUNAL’S DECISION

7. The Tribunal’s primary finding was that ‘the applicant did not present a truthful account of his circumstances in China’.  The Tribunal expressed the view that ‘despite some similarities between the initial and subsequent information presented by the Applicant, he essentially presented two different accounts of his circumstances in China’.  The Tribunal did not accept the explanation for these inconsistencies, namely that he suffered from short-term memory loss.  The Tribunal went on to find that the appellant’s major claim was not supported by information from external sources.  The Tribunal concluded that the appellant had ‘fabricated all his claims in order to enhance his application for a protection visa’.

8. The Minister submitted that all these findings were open to the Tribunal to make and no jurisdictional error is apparent.

   PROCEEDINGS IN THE COURT BELOW

9. By an application for judicial review filed in the Federal Magistrates Court on 11 July 2005 the appellant sought a review of the Tribunal’s decision on four bases. 

10. The first ground stated: ‘I am citizen of China who claims to have a well-founded fear of persecution for reasons of my political opinion under Refugee Convention by the Refugee Protocol’ which his Honour found to be ‘no more than a statement of his claim and it does not provide any ground for review of the Tribunal’s decision’.

11. The second ground was that: ‘The Tribunal failed to take relevant consideration into account to exercising its power to determine to the applicant as a refugee’.  The appellant was unable to explain what this ground meant or what was meant by it having regard to the Tribunal decision.

12. The third ground advanced was that: ‘The Tribunal failed to deal with the Applicant’s sur place claim of persecution by reason of [his] political opinion’.  In relation to this ground the court found that the alleged sur place claim was in fact not one by definition, but even if it were, the appellant did not raise the claim before the Tribunal in either his written or oral evidence, nor was it so obviously raised by the material before the Tribunal that it ought to have considered it in any event.

13. The fourth ground was that the Tribunal had erred in law. However, the court considered that the Tribunal’s findings were open to it.

14. The court also considered the issue of delay having regard to the fact that more than six years had elapsed between the decision of the Tribunal on 15 October 1998 and the commencement of proceedings in the Federal Magistrates Court on 11 July 2005 (which only took place after the appellant had been placed in immigration detention).

15. The court undertook a consideration of the exercise of the court’s discretion to withhold relief on the basis of delay: See SZGSN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1793 at [25] and [26].

16. His Honour concluded at [27]:

    ‘27.     The delay here is very lengthy indeed.  It is certainly considerably longer than the delay in either Re Commonwealth of Australia; Ex parte Marks [(2000) 177 ALR 419] and than the delay in S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [(2004) FCAFC 283].  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.’

17. His Honour considered the delay to be sufficiently lengthy and the explanation for that delay to be sufficiently unpersuasive to warrant the exercise of his discretion to withhold relief.

18. His Honour went on to find that, even if the appellant had not delayed as he had in bringing proceedings, the grounds raised by the appellant were not made out and there was no jurisdictional error.  Accordingly, the court dismissed the application.

    APPEAL TO THIS COURT

19. The notice of appeal raises the following grounds of appeal:

    ‘A. The Federal Magistrates Judgment of Judge Scarlett FM decision was jurisdictional error on law from the Tribunal decision dated on 15 [October] 1998.

    B.The Judge Scarlett FM made such decision of statement without any foundation on the evidence and was not exercising power to consider the applicant [providing] the evidence.’

20. The Minister submitted that these grounds are incomprehensible.  I agree.

21. I am unable to discern any jurisdictional error in either the decision of the Tribunal or the learned Federal Magistrate.

22. Even if I could, the delay of the appellant in bringing proceedings in the court below is sufficiently significant and insufficiently explained as to, on any view, attract the exercise of the court’s discretion to withhold relief.

    CONCLUSION

23. There being no jurisdictional error manifest, the decision is a privative clause decision for the purpose of s 474 of the Act: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

24. The appeal must be dismissed with costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:             18 April 2006

Solicitor for the Applicant:	The appellant appeared in person
Counsel for the Respondent:	Ms S A Mason
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	22 March 2006
Date of Judgment:	18 April 2006