SZGTD v Minister for Immigration
[2006] FMCA 95
•31 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGTD v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 95 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – Applicant a citizen of China – where Applicant did not attend RRT hearing – delay – where decision handed down on 31 July 2001 but application not filed at Court until 13 July 2005 – no jurisdictional error – relief refused in the exercise of the court’s discretion in any event due to unwarrantable and unexplained delay. |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.426A
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 referred to.
Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 referred to.
Abebe v Commonwealth (1999) 197 CLR 510 referred to.
Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 referred to.
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287.
SZCGM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1196
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306
SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811
SZBQE v Minister for Immigration & Anor [2005] FMCA 1090 distinguished.
SZBSZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 779 followed.
M172 v Minister for Immigration & Anor [2004] FMCA 23 followed.
B41 of 2003, Re an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 followed.
The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 followed.
Re Commonwealth of Australia; Ex parte Marks (2000) 178 ALR 491 followed.
| Applicant: | SZGTD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 1844 of 2005 |
| Delivered on: | 31 January 2006 |
| Delivered at: | Sydney |
| Hearing date: | 21 December 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person (In Immigration Detention) |
| Solicitor for the Respondent: | Mr Chami |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the Application is dismissed.
That the Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1844 of 2005
| SZGTD |
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 Tribunal made its decision on 4th July 2001 and handed the decision down on 31st July 2001.
The decision of the Tribunal was to affirm a decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection (class XA) visa to the Applicant.
Background
The Applicant is a citizen of the People’s Republic of China who arrived in Australia on 27th June 2000. On 25th July of that year he applied for a protection visa. On 26th September 2000 a delegate of the Minister refused the application so on 27th October the Applicant applied to the Refugee Review Tribunal for a review of that decision.
The Tribunal sought to invite the Applicant to attend a hearing to give oral evidence and present arguments. The hearing was scheduled for 2nd July 2001, but the Applicant did not attend. The Tribunal proceeded to make its decision on the review without taking any further action to enable him to appear. The Tribunal has the power to do so under the provisions of s.426A of the Migration Act 1958.
The tribunal’s decision
The Tribunal noted that the Applicant claimed his religion to be Falun Dafa, which is another name for Falun Gong. The Applicant did not submit any documentary evidence to support his claim, apart from a photocopy of his passport.
The Tribunal referred to a number of items about Falun Gong in independent country information for assistance in deciding the review.
The Tribunal was satisfied that the Applicant was a national of the People’s Republic of China. However, without the opportunity to discuss his claims further with him, the Tribunal was not satisfied that the Applicant had any links with Falun Gong or Falun Dafa practitioners.
The Tribunal gave five reasons for the finding of non-satisfaction:
a)According to independent country information, the adherents of Falun Gong/Falun Dafa do not regard it as a religion.The Tribunal inferred from the fact that the Applicant described Falun Dafa as his “religion” that he was not familiar with it.
b)There was too little in the Applicant’s account to enable the Tribunal to be satisfied that the Applicant was even suspected of having any links with the Falun Gong movement or that he lost his government employment as a result.
c)The Applicant did not explain why he did not try to find employment in China’s “booming” private sector. The Tribunal saw this as an important issue as the Applicant had claimed that it was his dim hopes of finding employment that led to his decision to leave China.
d)The Applicant did not explain why he continued to reside at his home address for at least six months after his claimed detention if, as he claimed, the authorities intended to jail him.
e)The fact that the Applicant was able to leave China using a passport in his own name, without paying a bribe except to obtain an Australian visa or taking any steps to avoid police checks was not consistent with his claim to fear that the authorities intended to imprison him.
The Tribunal affirmed the delegate’s decision not to grant the Applicant a protection visa.
The application for judicial review
Although the Tribunal handed down its decision on 31st July 2001, the Applicant did not file his application to this court until 13th July 2005, after he had been taken into Immigration detention at Villawood.
In his application, the applicant seeks the following orders:
a)a writ of prohibition directed to the Respondent Minister; and
b)a writ of “mandates” (presumably mandamus) directed to the Refugee Review Tribunal requiring the Tribunal to re-determine the Applicant’s application for a protection visa.
The Applicant relies on these grounds:
(i)If I go back to my country I will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the status of refugees and the 1967 protocol relating to the status of refugees.
(ii)Member of RRT failed to understand my claim and failed to consider relevant matters. Further particulars to be provided.
(iii) The respondent refused to grant my protection visa application without any proper grounds and proper investigation.
Submissions
The Respondent Minister filed a written outline of submissions. The Applicant did not file any Written Submissions, which is perhaps not surprising as he has been in Immigration Detention.
The Applicant made oral submissions to the Court. He claimed that he was persecuted in China as a practitioner of Falun Gong. He said that when he arrived in Australia he found a migration agent and applied for a protection visa. The agent asked the Applicant for his passport and the application fee and said that she would do the rest.
The Applicant told the Court that he was waiting for the result of his application and would inquire about once a month. He said the agent told him “You should be waiting patiently. I will let you know.” Eventually the agent told the Applicant that his application had been refused.
The Applicant said that the contents of the documents the migration agent wrote for him were wrong. All the telephone numbers and addresses were false. Eventually he found that his migration agent’s registration had been cancelled by the Government.
Conclusions
The Applicant’s first ground is no more than a statement of his belief that if he returns to China he will suffer persecution. If anything, it is no more than a request for a merits review, which the Court has no jurisdiction to give. This ground must fail.
The Applicant’s second ground claims that the Tribunal failed to understand his claims and failed to consider relevant matters. Although the Applicant said that he would provide further particulars, he did not do so. There is nothing to suggest that the Tribunal failed to consider any relevant matter, bearing in mind that the information provided was very limited. What information that was provided was adequately summed up and considered by the Tribunal.
There is no evidence that the Tribunal failed to understand the Applicant’s claim or failed to consider any relevant matter. This ground must clearly fail.
The third ground is that the Tribunal refused to grant the application without any proper grounds or investigation. The Tribunal did not need to have grounds or evidence to affirm the decision of the delegate. This ground is misconceived. It is up to the Applicant to make out his case by providing material for the Tribunal to consider. (See Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 per Kirby J at 596; Abebe v Commonwealth (1999) 197 CLR 510 per Gummow and Hayne JJ at 576). The Tribunal is not required to accept the Applicant’s claim just because there is no positive evidence to the contrary. (See Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 per Beaumont J at 451).
As to whether the Tribunal had any obligation to investigate the Applicant’s claim, this obligation only arises where it is obvious that material is readily available and centrally relevant to the decision. (See Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170).
The Applicant’s third ground fails.
It should be abundantly clear by now that applicants who do not attend before the Refugee Review Tribunal when it invites them to give evidence at a hearing cannot be heard to complain if the Tribunal does not make a decision in their favour. A rejection of the application is almost an inevitable consequence because the Applicant is not able to provide further comment on adverse information or provide the necessary information to allow the Tribunal to be satisfied that the Applicant meets the criteria for a protection visa. (See NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287; SZCGM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1196; SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306; SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1181).
The solicitor for the First Respondent has drawn my attention to a number of cases where applicants have claimed that their migration agents have not advised them of the Tribunal hearing. In my view, the decision of Driver FM in SZBQE v Minister for Immigration & Anor [2005] FMCA 1090 can be distinguished on its facts. In that case the Court was satisfied that the application to the Refugee Review Tribunal was made without the applicant’s knowledge or consent, with the result that the application was held to be invalid as the Tribunal had no jurisdiction to review the decision. That is not what the Applicant alleges in this case.
In SZBSZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 779 the applicant claimed that he had not received notice of the Tribunal hearing and that the migration agent had declined the invitation without consultation or instructions. The Court held that the notice to the applicant was sent according to statutory requirements. Although the applicant asserted that he did not receive notice of the hearing, the Tribunal was held to have complied with its obligations to give the applicant notice of the hearing.
In M172 v Minister for Immigration & Anor [2004] FMCA 23, the applicants claimed that they did not receive notice of the Tribunal hearing and consequently did not appear. The applicants’ migration agent informed the Tribunal that the applicants would not be attending. Bryant CFM (as she then was) held at [31] that the applicants’ assertion that they were misled by their migration agent was not an admitted fact and no evidence was led to support it. A mere allegation falls short of establishing procedural unfairness, however described, and the applicants had failed to make out their case.
In B41 of 2003, Re an application for a Writ of Mandamus Prohibition and Certiorari Against Refugee Review Tribunal [2004] FCA 30, Dowsett J considered the situation where the prosecutor claimed he was badly advised by his immigration adviser, which led to his not appearing before the Refugee Review Tribunal. His Honour said at [25]:
In my view, the prosecutor cannot complain that his actions, taken in reliance upon the advice received from his immigration adviser, led to his being denied procedural fairness.
In the case before me, the Applicant has not made out any claim that he was in some way denied procedural fairness by the actions, or the inaction, of his migration agent. She may or may not have been subsequently deregistered, but there is no evidence of this, either. I note that the Applicant did not refer to this claim in his application.
In any event, the delay in bringing this action is, to my mind, sufficient to deny the Applicant any relief. The decision was handed down on
31st July 2001 but the Applicant did not commence these proceedings until 13th July 2005, nearly four years later.
The Applicant told the court that he had been in Immigration Detention at Villawood since 13th July 2004, a year before he filed his application. He has not explained this delay, which is lengthy. He has not explained any of the delay. Unwarrantable delay justifies the withholding of relief (The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400). A delay of more than a year should ordinarily lead to relief being refused in the exercise of the court’s discretion. (See R v Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 per McHugh J at 495-496).
Even if I were satisfied that jurisdictional error had been made out, and I am not, I would decline to grant any relief on the basis of such a long and unexplained delay.
The application will be dismissed with costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 30 January 2006
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