SZGSQ v Minister for Immigration
[2006] FMCA 113
•24 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGSQ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 113 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of RRT affirming a decision of delegate not to grant a protection visa to the applicant – applicant a citizen of Indonesia – delay – where RRT decision handed down on 15 March 2001 but application to Court not made until 8 July 2005 – where delay explained. |
| Migration Act 1958 (Cth), ss.48B, 417, 422B, 424A, 474, 477(1A) |
| Re Commonwealth of Australia Ex parte; Marks (2000) 177 ALR 491 SZAWW v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 479 |
| Applicant: | SZGSQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1811 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 January 2006 |
| Date of Last Submission: | 24 January 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 January 2006 |
REPRESENTATION
| The Applicant: | In Immigration Detention |
| Solicitors for the Respondent: | Ms Radich Blake Dawson Waldron |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,200.00 and I allow (9) nine months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1811 of 2005
| SZGSQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| 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 23rd February and handed down on 15th March 2001. The applicant did not commence these proceedings until the year 2005. His application and a supporting affidavit were filed at the court on 8th July 2005. The intervening time between the finalisation of the Refugee Review Tribunal proceedings and the commencement of these proceedings were taken up in a number of other applications. First of all the applicant joined a representative action in the High Court of Australia which is known as the Lie class action. He did that on 24th April 2001.
Those proceedings were eventually remitted to the Federal Court of Australia and were dismissed by Emmett J on 20th February 2004.
The applicant then made several applications to the Minister for Immigration and Multicultural and Indigenous Affairs. First of all a solicitor acting for him at the time, Adrian Joel wrote to the Minister on 6th May 2004 asking her to exercise her power under s.417 of the Migration Act in favour of the applicant. On 9th November 2004 the Minister decided not to consider exercising her power in the applicant's case. The applicant then made his own application to the Minister on 20th December 2004.
In a letter dated 17th March 2005 the applicant was informed that the Minister was not going to take any action in respect of his request.
On 15th April 2005 the applicant then made an application to the Minister asking her to permit him to lodge a further refugee application under provisions of s.48B of the Migration Act. On 9th May 2005 the Ministerial intervention unit acknowledged receipt of that letter but on 30th June the applicant was informed his case did not meet the guidelines and would not be referred to the Minister for consideration under s.48B.
The applicant commenced these proceedings for review of the Refugee Review Tribunal decision on 8th July 2005. In effect it is the second application he has made to a court in its original jurisdiction seeking review of the Tribunal's decision. He told the court that he had not understood the process before and did not receive a great deal of information from his migration agent. He claimed that he had received a tape of the Refugee Review Tribunal proceedings but he does not know where that tape is now.
The applicant claimed to fear persecution in Indonesia both on the basis of his ethnicity and also because he was a follower of the Christian religion. He claimed to have suffered harassment of various types in the past and feared that if he were to return to live in Indonesia he would suffer further harassment. He attended a hearing of the Refugee Review Tribunal on Thursday, 15th February 2001. He gave oral evidence to the Tribunal and provided a letter of support from a church group in Sydney with whom he had been involved. He told the Tribunal that he had come to Australia in 1998 as a student and had returned to visit his family in 1999.
He is a leader of a group at his church and feels a calling to spread the Gospel. He described an incident where two men on a motor cycle were driving past and they slowed down and hit him and then sped off. He claimed that his sister's house had been looted during a riot in 1998. He told the Tribunal that he attended a church in Sydney and he wished to study more about the church so that he could spread the Gospel.
The Tribunal in its findings and reasons quoted extensively from independent information about Indonesia. It reported actions against ethnic Chinese people, and a spate of bombings at Christian churches on Christmas Eve in the year 2000.
The Tribunal found the applicant to be a credible witness.
The Tribunal accepted that he was a person of mixed Chinese and Manadonese ethnicity, and that he was a devoted Christian who felt a calling to work with his church. The Tribunal found that he had suffered from incidents of what the Tribunal described as minor forms of harassment whilst living in Indonesia. The Tribunal noted that there had been very severe rioting in Jakarta and other cities in Indonesia during the year 1998. The Tribunal noted violence which has continued in some parts of Indonesia and also the series of bomb attacks which occurred on Christmas Eve 2000.
The Tribunal also noted the political situation in Indonesia at the time of the hearing and noted that in October 1998 Abdul Rahman Wahid and Megawati Sukarnoputri were elected as President and Vice President. The Tribunal said that both of them were seen as moderates, with support from both Christian and Islamic communities, and Chinese and indigenous Indonesians alike. The Tribunal said that Wahid in particular has a long history of attempting to heal Indonesia's "deep-seated religious and ethnic rifts". At page 86 of the court book the Tribunal said of Wahid:
He has steadfastly fought against any intrusion of religion into politics. Both Wahid and Megawati have a genuine concern for a more egalitarian, democratic and inclusive society.
Further on that page the Tribunal made these findings:
The Tribunal finds that the significant change in circumstances in Indonesia in the past two-and-a-half years, brought about by the downfall of former President Suharto, give both ethnic and religious minorities cause for optimism. Given these significant changes and the resulting reduction in incidence of unrest since mid 1998, the Tribunal is not satisfied that there is a real chance that the violence of May 1998 or other significant ethnic or religious violence will be revisited in the reasonably foreseeable future, causing the applicant to have a well-founded fear of persecution.
Whilst the Tribunal noted at page 87 of the court book that there had bee a significant rise in political tensions in Indonesia there was no evidence before the Tribunal to suggest that there was a real chance that those tensions would erupt into anti-Chinese or anti-Christian violence like that seen in 1998. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution in Indonesia for a Convention reason. The Tribunal affirmed the decision of the Delegate not to grant the applicant a protection visa.
The applicant, as I said, commenced proceedings in this court seeking a review of that decision. He was at that time held in immigration detention at Villawood, New South Wales. His application came before the court on 4th August 2005 and the Registrar listed the application for hearing on 20th December. In September 2005, however, the applicant was transferred from Villawood to the detention centre at Baxter in the State of South Australia. He had correspondence from a lawyer who was on the panel to give him legal advice and the letter of advice was forwarded on to him from Villawood to Baxter.
As a result, the application could not be heard in Sydney on
20th December 2005. I adjourned the proceedings until today's date so that the matter could be dealt with by video link from South Australia.
The court facilities in the John Maddison Tower do not have a video link facility available to be used. Fortunately, we were able to sit here in Queens Square this afternoon where there are video links available. Even so, the move to South Australia delayed the proceedings by about five weeks.
The applicant sought to file an amended application. By the time that document was received at the Registry it was out of time for filing. Nevertheless, I made the decision to grant leave to file the amended application in court today. I took into account the fact that the applicant was in detention in another State and that it was more difficult for him to file documents on time. The applicant also filed an affidavit which was accepted for filing and has produced a document headed, "Statement I wish to make to the Federal Court".
Whilst that document contains a number of references to factual matters I have taken it into account as a written submission and will give it the same weight as I will give other submissions in proceedings of this nature. At the same time, the document refers not only to factual matter but to incidents of violence that are said to have occurred relatively recently. I have explained to the applicant that these proceedings are proceedings for judicial review and are not a fresh hearing of his claim on the merits of his case.
The court cannot consider evidence of incidents that occurred that were not put before the Refugee Tribunal nor can the court make its own decision on the facts in substitution for those made by the Tribunal. The applicant relies on six grounds in his amended application.
I will read those six grounds onto the record. I will however delete the applicant's name as he is entitled to the protection of s.91X of the Migration Agent.
i)That the Tribunal selectively took the view that the anti-Christian strife and bombings were not religion related but were political and that there was no evidence of continuing patterns of violence directed at the ethnic Chinese or Christian communities in Indonesia particularly in Manado and Ujungpandang.
ii)
This was conclusion the Tribunal reached just two months after the then latest violent incidents. A premature conclusion and an error. Of the country information the applicant was not given an opportunity to comment on it.
A breach by the Tribunal of s.424A of the Migration Act 1958.
iii)The Tribunal failed to consider the respondent's statement that back in Indonesia he felt and would be compelled to spread the gospel. The statement is referred to once but never again mentioned or considered. When it clearly elevates the risk of persecution the applicant might face.
iv)Likewise the only direct but fleeting reference to the applicant's Christianity appears on one page of the RRT’s findings but the Tribunal did not talk clearly about it.
v)Although finding him a credible witness the Tribunal erroneously dismissed the applicant's status in Indonesia as a member of a group of people who are discriminated against and for whom protection by the state is not guaranteed.
vi)The RRT’s negative answer to the underlying question, is there a chance the applicant would suffer serious harm because he was a Christian must be challenged.
In the applicant's written submission, which was his statement, he refers to the difficulty that he faced in obtaining legal advice when transferred from Villawood to Baxter detention centre. He explained that because he was in Baxter he had received no further advice and did not amend or file any other documents although a friend did so for him last week. The applicant's friend attended court today and was able to provide the court with a copy of the applicant's statement.
The applicant described his frustration when the Tribunal failed to consider his claim as a member of a distinct social group, namely that of Chinese Christian proselytisers.
The applicant also said that he was not given the opportunity to comment on written material opposed to his claims and says that the Tribunal breached its fundamental obligation of procedural fairness and natural justice for that reason. The applicant noted that the Tribunal could pick and chose material on which it relied to make its findings on matters of fact and that that process can involve great selectivity.
The applicant also referred to two recent incidents when a number of people were killed. Once when a Christian market was bombed and also the rather appalling murder of two young Christian women.
The applicant also referred to two new studies of country of origin information that he would have liked to have presented to the Tribunal.
The applicant submitted that the RRT failed to take into account the evidence that he gave to it that if he were back in Indonesia he would be obliged to work and support his church publicly. He submitted that that state of affairs put him at a much higher risk than ordinary followers of the Christian faith and that the Tribunal failed to take that into account. He stated that even if he wanted to be an inconspicuous Christian and just attend church he would suffer such fear that he may not be game enough, to use his words, to attend church.
The applicant told the court that he had not understood the entire legal process for challenging the Tribunal decision. He also spoke of having some difficulty of telling his secrets to the person at the office of his Migration Agent. He said that he told the Tribunal a lot of general things, but not a great deal about his own personal situation.
He thought that he had told the Tribunal enough to meet the Tribunal's requirements. The applicant also told the court about another incident in which he had been involved in Indonesia, but he told the court that he had not given any details of that incident to the Tribunal at all. As a result, I cannot take it into account and will not take it into account.
For the respondent Minister, Ms Hanstein, solicitor, submitted that no jurisdictional error was apparent in the Tribunal's decision.
She submitted that s. 474 of the Migration Act does not apply to the Tribunal's decision because, at the commencement of sch. 1 to the Migration Legislation (Amendment) Judicial Review Act 2001 which was 2nd October 2001, the applicant had lodged an application for judicial review, namely his part in the Lie class action in the High Court. Consequently, she submits, the time limit in s.477(1A) does not apply and she refers to SZAWW v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 479. She pointed out that s.424A of the Migration Act did apply, but s.422B of the Act did not.
Ms Hanstein also submitted that even if the Tribunal's decision was affected by jurisdictional error, the court should refuse relief in the exercise of its discretion because the present application was not filed until 16 months after the earlier application was dismissed by Emmett J on 20th February 2004. I have considered the grounds of the applicant's application. The first ground is that the conclusion reached by the Tribunal that anti-Christian strife and bombings were not religion related but were political was a premature conclusion and an error.
To my mind, this amounts to a challenge to a factual finding reached by the Tribunal and is inviting the court to undertake a merits review of the Tribunal's findings.
The court does not have the jurisdiction to do this as the arbiter of the facts is the administrative decision-maker and not the court.
The second ground is that the Tribunal breached s.424A of the Act by not giving the applicant an opportunity to comment on country information. The Tribunal notes in its decision, particularly at page 68 of the court book that the applicant was given an opportunity to comment on aspects of country information. The applicant did not present a transcript of the Tribunal hearing and he did admit that he had received the tape but he was not sure where it had gone. I am mindful of the fact that he has been in immigration detention for a considerable amount of time and it is hardly surprising that he may have mislaid the tape of the proceedings over the last seven years. I am not satisfied, though, that he has made out his claim under ground 2.
The third ground is the allegation that the Tribunal failed to consider the applicant's statement that he would be compelled to spread the gospel upon his return to Indonesia which placed him at a greater risk of harm than other people in his situation. In my view the Tribunal did take that into consideration, and I am mindful that the Tribunal was satisfied that he was a credible witness. This ground therefore fails.
The fourth ground refers to a direct but fleeting reference to the applicant's Christianity, appearing on only one page of the Tribunal's findings. It does not appear to me that the Tribunal failed to talk clearly about the applicant's Christianity. Indeed, the Tribunal accepted that he was a devoted Christian who feels a calling to work with his church. Ground four must therefore fail.
Both grounds five and six appear to me to be challenges to factual findings made by the Tribunal, and as a merits review is impermissible in judicial review proceedings, these grounds must also fail.
It appears therefore that the applicant has not been successful in establishing jurisdictional error on the part of the Tribunal. Even if there had been a finding of jurisdictional error, the application was commenced 16 months after the earlier application to the High Court and then the Federal Court was dismissed.
Unwarrantable and unexplained delay is grounds for a discretionary refusal of relief even if jurisdictional error has been made out. In Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 McHugh J noted that a delay in excess of 12 months would ordinarily be sufficient to entitle the court in the exercise of its discretion not to grant relief by way of a prerogative writ.
Whilst there were in the intervening time two applications to the Minister to exercise her discretion under s.417 of the Act, and one application to the Minister under s.48B of the Act, these were not court proceedings and cannot therefore be used as an explanation for the delay.
The first of these applications was in fact made by the applicant's solicitor and it seems to me that the applicant should have been advised of the results of the course that he was taking. In any event, I'm not satisfied that a jurisdictional error in the Tribunal's decision has been made out, and it is for this reason that I'm obliged therefore to dismiss the application.
I accept the fact that the applicant has no funds and is not in a position to meet an order for costs. That is not normally a reason for not making an order for costs in favour of a successful party. At the same time I accept the fact that a person in the position of the applicant, who has been in detention for 16 months, would be unlikely to have any funds that would enable him to meet an order for costs like that at the present time. That is certainly a ground for time to pay, and I allow time to pay in the amount of nine months.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 30 January 2006
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