SZGVF v Minister for Immigration - [2005] FMCA 1498

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGVF v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1498

MIGRATION – Visa – protection (Class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – Applicant a citizen of China claiming a fear of persecution – claim that RRT “failed to understand” applicant’s claim – delay – more than 6 years – delay poorly explained – refusal of relief on ground of delay – no reviewable error – claim for relief unmeritorious in any event.

PRACTICE & PROCEDURE – Notice of Objection to competency – privative clause decision – where application filed more than 28 days after the Applicant was notified of the decision – where Applicant was notified of RRT decision on 20 May 1999 but application for review not filed until 25 July 2005 – where Applicant did not attend RRT hearing.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.426A, 474, 477

Abebe v Commonwealth (1999) 162 ALR 1
Applicant S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283

Applicant:

SZGVF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG 1957 of 2005

Delivered on:

5 October 2005

Delivered at:

Sydney

Hearing date:

5 October 2005

Judgment of:

Scarlett FM

REPRESENTATION

Applicant:

In Person

Solicitor for the Respondent:

Ms Watson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1957 of 2005

SZGVF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of the decision of the Refugee Review Tribunal. The decision was made on 19^th May 1999.
The Tribunal posted a copy of the Tribunal’s decision to the Applicant’s address on 20^th May 1999. The decision of the Tribunal was to affirm a decision by a delegate of the Minister for Immigration & Multicultural Affairs not to grant the Applicant a protection visa. The Applicant now seeks a review of that decision.
The background to this matter is that the Applicant is a citizen of China. He arrived in Australia on 17^th January 1998 and he applied for a protection visa. He claimed that he had suffered persecution in China for reasons of his religion. He claimed to be a follower of the Christian religion.
His application for a protection visa was refused and he sought a review of that decision from the Refugee Review Tribunal. The Refugee Review Tribunal listed his application for review on
21^st April 1999. The Applicant, or someone on his behalf, sought a postponement of that hearing. The reason for the postponement was that the Applicant was badly injured in a hail storm. The Applicant told the Court that he had been injured but was not hospitalized.
The Tribunal agreed to a postponement of the hearing. A new hearing was scheduled for Thursday, 6^th May 1999 at 9:00 am. The Applicant did not appear. The Tribunal made a decision under section 426A of the Migration Act to decide the Applicant’s case on the basis of the material before it. The Tribunal did not give the Applicant a further opportunity to attend a hearing. The Tribunal made its decision on
19^th May and posted a copy of that decision to the Applicant on
20^th May 1999.
Not surprisingly, the application was unsuccessful because there was insufficient information in support of the Applicant’s claim. The Tribunal noted at page 64 of the Court Book that a number of relevant questions were left unanswered because of the Applicant’s failure to provide either written information or attend the hearing.
The Applicant says that he had relied on a migration agent to process his claim. He said that the agent had not informed him of the date of the hearing. He said that the agent had not told him of the Tribunal decision. He said that he had been living in a rural area west of Liverpool, New South Wales, and I note from the Court Book that at one stage he had an address in Glenfield.
The Applicant said that he did not know about legal procedures, and the agent just did not tell him anything. He did not make any enquiries from the agent for a considerable time and eventually he found that the agent had left the address.
The Applicant was taken into immigration detention earlier this year. He lodged his application for review of the Tribunal decision on
25^th July 2005. He said that the first that he knew that his application was unsuccessful was when he was taken into custody.
I turn to the Applicant’s application, filed on 25^th July 2005. It contains three grounds. The first ground is no more than a statement that if he returns to his country of origin he will be at risk of persecution.
He asserts that that persecution would be persecution within the meaning of the 1951 convention relating to the status of refugees, and I take it to be an assertion that he is a refugee.
The first ground given is no more than that, and as it is an assertion that he comes under the auspices of the Refugees Convention it is at best a request for a merits review as the Tribunal was not satisfied that he was a refugee entitled to a protection visa.
The second ground is as follows:
Member of Refugee Review Tribunal failed to understand my claim and failed to consider relevant matters. Further particulars to be provided.
The Applicant did not provide any further particulars. He was not able to explain to the Court why the member of the Refugee Review Tribunal failed to understand his claim, nor did he recall telling anyone, not least the person who prepared the application for him, that the Tribunal had failed to consider relevant matters. Ground 2 does not contain any ground for review.
Ground 3 says as follows:
The Respondent refused to grant my protection visa application without any proper grounds and proper investigations.
The Applicant has misconceived the function of the Court conducting judicial review. On a judicial review the Court does not reconsider the factual aspects of the Applicant’s case. An application for review is not a hearing de novo. An application for review is an application to the Court to consider the lawfulness or otherwise of the decision by the Tribunal. The High Court made this quite clear in Abebe v Commonwealth (1999) 162 ALR 1.
The solicitors for the Respondent Minister have also filed a Notice of Objection to Competency. The Respondent Minister objects to the jurisdiction of the Court to try the application on the grounds that the decision is a privative clause decision and that the application for review is out of time. If an application for review of a privative clause decision is made to the Court, subsection 477(1A) of the Migration Act requires that it should be lodged within 28 days of the Applicant being notified of the decision of the Refugee Review Tribunal. A privative clause decision is one that attracts the protection of section 474 of the Migration Act. This application is more than 28 days out of time. It is more than six years out of time.
I am mindful of the fact that the Applicant is not legally represented.
I am also mindful of the fact that he does not speak, read or write English and the proceedings have been conducted with the assistance of a Mandarin interpreter. I have read through the decision myself in order to satisfy myself that the decision does not disclose any jurisdictional error. I am unable to discern any jurisdictional error.
The application does not show any grounds for the granting of relief. Even if I were satisfied that there were grounds for the granting of relief, the delay in bringing the proceedings is so lengthy that it would be inappropriate to exercise the Court’s discretion to grant relief.
If there were jurisdictional error, then the restriction on commencing the proceedings under subsection 477(1A) would not apply because the decision would not attract the protection of section 474 of the Migration Act. In other words, it would not be a privative clause decision. Nevertheless, the delay is so lengthy and the explanation is so poor that it would be inappropriate to exercise the Court’s discretion.
I refer to the decision of the Full Court of the Federal Court in Applicant S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283. In that case, there was an appeal against a decision of the primary Judge not to grant relief where an application for review for the decision for the Refugee Review Tribunal was not made until approximately four years and eleven months after notification of the decision that it should be lodged within 28 days of the Applicant being notified of the decision of the Refugee Review Tribunal.
The delay in this case is even greater, I notice, nearly six years. An appeal against the decision of the primary Judge was dismissed. The Full Court of the Federal Court, constituted by Ryan, Merkel and Conti JJ, quoted with approval the finding of the primary Judge at paragraph 21 of the primary decision:
In all these circumstances, in my opinion it would be quite wrong, even if the applicant has a good case on its merits for constitutional relief and notwithstanding the possible importance of the case to him, to sanction such a long and poorly explained delay. Where there is a formal time limit, I would not extend time to permit him to claim the relief sought. Further, I would as a matter of discretion decline on the ground of the application’s long and unsatisfactorily explained delay to grant any relief to which he might otherwise be entitled.
Their Honours quoted that paragraph with approval in paragraph 8 of the Appeal decision
In the case before me, the delay is even longer – over six years. The only explanation is that the migration agent did not tell the Applicant. In my view that clearly constitutes a long and poorly explained delay.
I also note that the case, as far as constitutional relief, appears not to have any merit whatsoever. The application is dismissed.
There is an application for costs in the sum of $3,800.00. The Applicant has been wholly unsuccessful in his claim and I am satisfied that I should make an order for costs in favor of the First Respondent Minister. The amount sought is the amount of $3,800.00.
It is the normal practice in the Federal Magistrates Court to fix costs in a lump sum rather than having them assessed or taxed. In my view the sum of $3,800.00 is well within the scale of costs provided by Schedule 1 of the Federal Magistrates Court Rules 2001. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,800.00.
I require a transcript of my reasons for this decision. The application is removed from the list of cases awaiting finalization. The Applicant may be returned to his former detention.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: Virginia Lee

Date: 12 October 2005