SZGUD v Minister for Immigration
[2006] FMCA 823
•9 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGUD v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 823 |
| MIGRATION – Review of decision by Refugee Review Tribunal – applicant alleges claims not dealt with – claim subsumed in finding of generality – use of country information – delay of more than six years between notification of decision of Refugee Review Tribunal and seeking of relief – whether applicant’s explanation of delay satisfactory. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.474; 477A(1); 483 |
| Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd (1949) 78 CLR 389 Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 O’Reilly v Mackman [1983] 2 AC 237 |
| Applicant: | SZGUD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1894 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 30 May 2006 |
| Date of last submission: | 30 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 9 June 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser |
| Solicitors for the Respondent: | Mr A. Cox, Phillips Fox Lawyers |
ORDERS
The application before this Court is dismissed.
That the applicant pay the First Respondent’s costs in an amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1894 of 2005
| SZGUD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 31 December 1998 to affirm the decision of the delegate of the Minister for Immigration and Multicultural Affairs (“the Delegate”) not to grant a protection visa to the applicant.
On 20 November 1996, the applicant arrived in Australia from the Peoples Republic of China (“PRC”) and applied for a protection visa on 16 December 1996 (“the Applicant”). On 25 July 1997, the Delegate refused to grant the Applicant a protection visa.
On 26 August 1997, the Applicant lodged an application for review of the Delegate’s decision to refuse to grant a protection visa.
On 31 December 1998, the Tribunal affirmed the decision not to grant a protection visa to the Applicant.
Tribunal proceeding
The Applicant attended a Tribunal hearing on 23 December 1998 and gave oral evidence.
The Tribunal accepted that the Applicant is a national of PRC and that his uncle, now resident in the United States, co-authored an autobiographical book about his persecutory treatment by the Chinese authorities before and during the cultural revolution.
The Tribunal found that the Applicant was summoned to Beijing in late November 1993, was arrested not earlier than 12 December and was released in early January 1994.
The Tribunal noted that, in his statement dated 16 December 1996, the Applicant made no mention of arrests or detention subsequent to his release from the December 1993 detention. The Tribunal noted that “he merely states that since then, his home was under strict surveillance by the police, his home telephone was tapped and all of his correspondence was censored.” The Tribunal noted that the Applicant did not explain at any stage how he knew of the surveillance and the censoring.
The Tribunal noted that the Applicant gave oral evidence that he was arrested and detained 7 or 8 times up until July 1995, after which time the authorities had no further contact with him.
The Tribunal found that the Applicant’s claims concerning arrest, detention and dismissal from employment to be “variously confused, contradictory, exaggerated and implausible and does not give weight to them.”
The Tribunal was not satisfied that the Applicant suffered any further arrest or detention after his release from detention in late 1993/early January 1994. The Tribunal gave no weight to oral claims made at the hearing that the Applicant continued to be interviewed by authorities through 1994 and 1995.
The Tribunal accepted that the Applicant’s employment with the motor transport company ceased early in 1994.
Particularly, the Tribunal found that “irrespective of the authorities’ interest in and treatment of the applicant up to July 1995, the Tribunal finds, having regard to the applicant’s own evidence at the hearing, that the authorities made no contact with the applicant during the 18 months from July 1995 to November 1996 when he left China.”
The Tribunal noted that the Applicant was issued officially with a Chinese passport in his own name and claimed to have left the PRC legally, although the Applicant claimed that his passport and visa were arranged for him by one of his uncle’s students.
The Tribunal drew no conclusion from the Applicant’s claim that his passport was obtained irregularly, the irregularity being the assistance of the student of his uncle. The Tribunal noted that the assistance of the uncle’s student did not of itself prove that the passport would not otherwise have been issued.
The Tribunal was satisfied that the Applicant was “neither wanted by the authorities nor of serious ongoing interest to them as a dissident or activist at the time that he left China.”
The Tribunal found that there is not a real chance of the Applicant being persecuted for reasons of his family association or his past assistance to his uncle if he were to return to the PRC.
The hearing before this court
The Applicant was represented by Counsel at the hearing before this Court and gave evidence in respect of the delay in filing his application in this Court, the delay being in the order of more than 6 years.
The Applicant relied on an amended application filed in this Court on 10 October 2005, relying on the following 3 grounds:
“1. The applicant claimed that, following his release from detention, his “home was under strict surveillance by the police, [his] home telephone was tapped and all [his] correspondence was censored”. (CB 80.1) The tribunal found that it was “satisfied that the applicant is neither wanted by the authorities nor of serious ongoing interest to them as a dissident or activist as the time that he left China”. (CB 89.3) However, this finding does not deal with the applicant’s claims concerning surveillance. On this basis, the Tribunal fell into jurisdictional error.
2. The applicant claimed that his passport was obtained irregularly. The Tribunal rejected the claim on the basis that “even with corruption it is most improbable that a passport would have been issued had the PSB security authorities had an active interest in the applicant”. (CB 89.1) The Tribunal, in making this important finding, relied on country information. However, the Tribunal did not put the country information to the applicant and give him an opportunity to comment. As a result, the Applicant was denied procedural fairness.
3. It was clear from the applicant’s claims to the Tribunal that after the authorities became interested in him in late 1993 he had difficulties retaining full time paid employment. A question is whether the applicant would be able to obtain full time paid employment if required to return to China. The Tribunal did not deal with this aspect of the applicant’s claims, giving rise to jurisdictional error.”
Ground 1
Counsel for the Applicant submitted that the Tribunal failed to consider the Applicant’s claim that he was under strict surveillance by the police, his home telephone was tapped and his correspondence censored.
In arriving at that conclusion, the Tribunal had regard to the Applicant’s claim in respect of being the subject of surveillance in the following terms:
“In his statement of 16.12.1996, the applicant made no mention of arrests or detention subsequent to release from the December 1993 detention; he merely stated since then, his home was under strict surveillance by police, his home telephone was tapped and all of his correspondence was censored; he did not explain then or later how he knew of the surveillance and censoring.”
The Tribunal noted that the Applicant had “merely stated” that he was under surveillance. Implicit in the use of the word “merely” in the context is that the Applicant’s claim of being under surveillance was not sufficient to satisfy the Tribunal that he met the criteria of a refugee.
The Tribunal found that it was satisfied that the Applicant was “neither wanted by the authorities nor of serious ongoing interest to them as a dissident or activist at the time that he left China”.
In those circumstances, consideration of the claim in respect of the surveillance is subsumed in the finding of generality made by the Tribunal that it was not satisfied that the Applicant was wanted by the authorities, nor that they had a serious ongoing interest in him as a dissident or activist at the time he left China (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641).
For those reasons this ground is not made out.
Ground 2
Counsel for the Applicant submitted that the Tribunal failed to afford the Applicant procedural fairness in that it did not put to the Applicant independent information that it had regard to in consideration of the irregularity of the Applicant’s passport.
After the Tribunal noted that it drew no conclusion from the Applicant’s claim of the irregularity of the obtaining of his passport, the Tribunal went on to state that even with corruption it was improbable that a passport would have been issued if the PSB security authorities had an active interest in the Applicant. The Tribunal then went on to quote from a source that “if you were a really high profile dissident or wanted by the PSB there is no way an official would take a bribe to process your exit documents. It simply isn’t worth the risk of being found out.”
There is no claim by the Applicant that there was corruption to his knowledge involved in the obtaining of his passport. Rather, the Applicant does no more than assert that a student of his uncle’s assisted him in the attaining of the passport. The Tribunal concluded that, in any event, even if influence or an irregular channel was used for the attaining of the passport, that by itself did not prove that the passport would not otherwise have been issued.
In those circumstances, the Tribunal’s comments in relation to the situation whether or not corruption was involved are irrelevant to its conclusion in respect of the Applicant’s claims. In any event, the Tribunal clearly said that it drew no conclusion from the Applicant’s claim that his passport was obtained irregularly. That finding alone is dispositive of this ground, however, I have dealt with the Applicant’s contention as to the use of adverse independent material below.
In support of the Applicant’s contention that the Tribunal failed to put relevant adverse independent information to the Applicant, the Applicant tendered a copy of the transcript of the hearing before the Tribunal.
The Tribunal certainly put to the Applicant that “from what the Tribunal knows of the system of blacklisting people and so in China it’s difficult to see that you would have been allowed to leave the country if they really wanted you.”
The Tribunal also put to the Applicant during the course of the hearing that information available to it from a variety of sources indicated that people who had left China and come to Australia, even if they made a refugee application were not in trouble for doing that on their return.
The Tribunal also put to the Applicant that, whilst the authorities may keep an eye on him were he to return to the PRC, the Tribunal was not satisfied that such conduct amounted to persecution and that the situation would be no different to the situation when the Applicant left the PRC.
In the circumstances, the Applicant’s contention that he was denied the procedural fairness because the Tribunal failed to put to him adverse independent material to which the Tribunal had regard, is not made out.
Accordingly, ground 2 is rejected.
Ground 3
Counsel for the Applicant submits that the Tribunal erred in failing to consider the Applicant’s claim about having been dismissed from his employment and whether or not that situation was capable of amounting to persecution such that there was a real chance of persecution if the Applicant were to return to China. The Applicant submitted that he claimed that one of the forms of persecution he would experience if he were to return to China was the inability to obtain employment. It was common ground that a denial of employment opportunities can, in certain circumstances, amount to persecution.
However, the Tribunal did not make a finding that the Applicant was dismissed from his place of work because of his association with his uncle. The Tribunal simply accepted that his employment with the motor transport company ceased early in 1994. The Tribunal stated that it did not give weight to claims at the hearing that the Applicant continued to be interviewed by authorities through 1994 until July 1995. It noted the Applicant’s claims concerning his dismissal from employment to be “variously confused, contradictory, exaggerated and implausible and does not give weight to them.”
In those circumstances, it is clear that the Tribunal considered whether or not the Applicant had been dismissed from his employment because of his family association or past assistance to his uncle, and found that it did not give weight to such claims. Those are findings of fact that were open to the Tribunal on the material and evidence before it and for which it provided reasons.
Accordingly, that ground is not made out.
Conclusion
In the circumstances, the Tribunal’s decision is a privative clause decision and accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
On 15 December 2005, the First Respondent filed a notice of objection to competency on the basis that the Applicant’s application for review was not filed within 28 days of notification of the Tribunal’s decision, in accordance with s.477A(1) of the Act. The Applicant, in a statement annexed to an affidavit affirmed by him on 17 October 2005, made it clear that he received a letter from the Tribunal refusing him a protection visa, at the latest, sometime in 1999. The Tribunal’s letter enclosing its decision is dated 31 December 1998.
Accordingly, the Applicant’s application is incompetent and should be dismissed.
Delay
Even if the decision was affected by jurisdictional error, the Applicant’s oral evidence of his explanation as to what he was doing for more than 6 years between when he acknowledged he was notified of the Tribunal’s decision (see paragraph 40 above) and his filing in this Court on 19 July 2005 was most unsatisfactory.
The Applicant relied on an affidavit sworn by him on 17 October 2005, and filed in this Court on 18 October 2005. The affidavit annexed a statement signed by the Applicant. At the outset of his oral evidence, the Applicant confirmed that the contents of his affidavit and statement were true and correct..
During the course of his evidence he departed from 5 assertions made by him in that statement, thereby providing inconsistent evidence with that statement. When the inconsistency was put to him and he was asked to concede that his oral evidence was entirely different from that contained in his statement the Applicant’s answers were wholly unresponsive. The Applicant’s ultimate explanation was that the affidavit was “probably written by my solicitors”. Examples of the inconsistencies are set out below.
a)In his written statement the Applicant stated that Mr. Deng wrote to the Minister as referred to above on his behalf. In oral evidence the Applicant stated that he did not know that Mr. Deng wrote a letter on his behalf to the Minister and simply responded that Deng was a migration agent who had been found to be crooked. It took many questions in cross-examination before the Applicant conceded that any letter had been written to the Minister on his behalf at any stage in 2003. His repeated answer was that he never signed such a letter, it having been signed by his adviser.
b)In his statement the Applicant stated that a friend had helped him in 1999 and suggested that he seek free legal aid and had written to the legal aid and filled in forms for him. In his oral evidence before this Court the Applicant stated that he did not know in 1999 that he could seek free legal advice. When it was put to him that in his statement he had said that his friend had told him he could get free legal advice, his response was that his friend was not a lawyer or migration agent and that he (the Applicant) did not know there was legal aid in 1999. He said that his friend simply told him that it was available. When it was put to him that if he did not know he could seek legal aid, then why did he have legal aid forms filled in on his behalf. The Applicant responded that he did not know how to go about filling in forms and that he did not fill them in himself.
c)The Applicant was obstinate in his testimony and evasive in respect of whether he knew he could approach a court following the Tribunal decision to seek review of the decision. Yet in his statement he said that the agent who assisted him before the Tribunal had said that if he went to the High Court it would cost him many thousands of dollars. The Applicant gave evidence before this Court that in fact he had some savings of several thousands of dollars but that he wished to have free legal advice rather than to have to pay for it. In his affidavit the Applicant said that Mr. Deng represented him between 2003 and 2004 and that in 2004 Mr. Deng stopped answering or returning his calls, after which he realised Mr. Deng was no longer taking responsibility for his case. Thereafter, in 2005 he said that he found a migration agent who told him he could commence proceedings in this Court, but that prior to July 2005 he did not know that he could commence proceedings in this Court.
Moreover, the Applicant conceded in cross examination that for over more than 6 years, from 28 days after the Tribunal decision until he filed an application in this Court in 2005, he knew that his presence in Australia was illegal and not pursuant to any visa. The Applicant also stated that he was not aware that whilst in Australia illegally he was unable to work.
The Applicant was a singularly unimpressive witness. He did not provide reliable evidence of any genuine attempt to pursue the obtaining of advice in respect of his rights of prosecuting an appeal in respect of the Tribunal’s decision. Nor did he give any satisfactory explanation as to why he did not make any such attempt during the period of delay of more than 6 years.
The relief sought by the Applicant is discretionary and delay is certainly a ground upon which constitutional writ relief may be refused. (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”) at [84] and [211]; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd (1949) 78 CLR 389). McHugh J in SAAP at [80] observed:
“The issuing of writs s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. 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.”
In considering the delay by the Applicant of more than six years in seeking review of the Tribunal’s decision and the importance of finality of administrative decisions, I have regard to the comments of McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 (“Ex parte Marks”) at 495 in which he said the following:
“Where an applicant seeks the issue of constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases.”
Similarly, Lord Diplock stated in O’Reilly v Mackman [1983] 2 AC 237 at 280-281:
“The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in the purported exercise in decision making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.”
Further, the nature of constitutional writ relief, as referred to by McHugh J in Ex parte Marks, makes it clear that in considering the public interest in there being efficacy in public acts, decisions and judgments cannot be allowed to become “hostage of an applicant’s search for favourable legal advice’’ (Ex parte Marks at 496).
In balancing the interests of justice to the community in having such administrative decision making finalised and the interests of the Applicant in having an opportunity to have his claims heard and considered according to law, it is my view that the Applicant’s evidence in explaining his delay of more than six years is neither reliable nor sufficient in all the circumstances, and that, therefore, the delay is undue and unwarranted.
For those reasons, even if the Tribunal’s decision is affected by jurisdictional error, I would not exercise the Court’s discretion to grant relief to the Applicant.
Accordingly, the application is dismissed.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 7 June 2006
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