SZGWC v Minister for Immigration
[2005] FMCA 1515
•27 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGWC v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1515 |
| 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 Indonesia – claim of fear of persecution for reason of being ethnic Chinese – delay – whether applicant a member of a particular social group – procedure fairness – impermissible merits review – privative clause. 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 RRT handed down its decision on 30 June 2000 – applicant filed application on 1 August 2005 – excessive delay – unsatisfactory explanation – delay a ground for declining to grant relief. |
Judiciary Act 1903 (Cth) s.39B.
Migration Act 1958 (Cth) ss.474, 477(1A).
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283.
| Applicant: | SZGWC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 2019 of 2005 |
| Delivered on: | 27 October 2005 |
| Delivered at: | Sydney |
| Hearing date: | 12 October 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Immigration Detention |
| Counsel for the Respondent: | Ms Mason |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the Application is dismissed.
That the Application is not competent as the Court has no jurisdiction.
That the Applicant is to pay the First Respondent’s costs fixed in the sum of $3,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2019 of 2005
| SZGWC |
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 that was made on 30th June 2000 and handed down on
21st July 2000. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the Applicant.
Background
The Applicant is a citizen of Indonesia who arrived in Australia on
6th June 1997. He applied for a protection visa on 29th September 1997, claiming a fear of persecution because of his Chinese ethnicity. After his application was refused on 11th November 1997, the Application applied to the Refugee Review Tribunal for a review of that decision on 12th December 1997.
The Tribunal held a hearing on 23rd February 2000, at which the Applicant attended and gave evidence. The Tribunal, whilst acknowledging that there had been rioting in Indonesia caused by racial hatred, took the view that the Indonesian Government had, in recent years, intervened to halt racial violence and prosecuted perpetrators of it. The Tribunal noted the accession to power of President Abdurrahman Wahid, noted for his long history of support for the ethnic Chinese community and decided that the Applicant would be able to access adequate state protection if he were targeted in anti-Chinese rioting in the future. The Tribunal affirmed the decision not to grant a protection visa to the Applicant.
Application for adjournment
On the morning of the hearing, the Applicant sought an adjournment of the proceedings until such time as he was “no longer circumstantially at a disadvantage.” The bases of his application were that:
a)The Court book that had been prepared did not contain any documents relating to his migration history prior to 1997, as the Department of Immigration and Multicultural and Indigenous Affairs had misplaced his file. He contended that the missing material “undoubtedly would be of fundamental value with respect to the prospects of success of the applicant in his court proceedings”.
b)He had only been seen and advised by a lawyer under RRT Pilot Scheme two days before the hearing, which did not allow him sufficient time to prepare his case. As a result, he argued that the refusal to grant an adjournment “would be a denial of natural justice”.
The Applicant told the Court that he had received advice from a friend who had studied law but had not qualified, and that person had helped him to prepare various documents, including his Amended Application, the Notice of Motion seeking an adjournment and the affidavit in support.
Counsel for the Respondent Minister opposed the application for adjournment. I refused the application on two grounds. First, the Applicant was not able to explain how a file relating to matters before 1997, if any, would be relevant to a decision made in 2000 refusing an application for a protection visa made on 29th September 1997. I noted that the Court Book contained a copy of his application for review and copies of the correspondence leading up to hearing of the Tribunal, and that his Amended Application related only to the Tribunal decision itself.
Second, I found that the Applicant had received other advice prior to the receipt of the advice from the lawyer. Many applicants appear unrepresented before the Federal Magistrates Court in migration proceedings. It is the exception rather than the rule for an applicant to be fortunate enough to have legal representation.
The amended application
In his Amended Application, filed on 4th October 2005, the Applicant sets out the following grounds for relief:
a)The Tribunal did not consider whether the Applicant had a well-founded fear of persecution by reason of his membership of a particular social group;
b)The Tribunal breached the requirements of procedural fairness in assuming that the Applicant could have no well-founded fear of persecution if he lived his life discreetly or in secret;
c)That the Tribunal failed to apply the correct test, constructively failed to exercise its jurisdiction and breached the requirements of procedural fairness in assuming that the Applicant could have no well-founded fear of persecution;
d)That the Tribunal failed to appreciate that in some circumstances fear of persecution may include transgressions on the freedoms traditionally associated with democratic societies, including economic discrimination;
e)The Tribunal failed in asking itself whether it was satisfied that the Applicant would be harmed for the reasons he claimed if he returned to Indonesia;
f)The Tribunal failed to determine whether or not there have been significant changes in Indonesia;
g)The Tribunal unreasonably rejected the applicant’s claims based on a disproportionate persecution of members of the Applicant’s particular social group; and
h)The Tribunal erred in finding that the Applicant is not a person to whom Australia has protection obligations.
Conclusions
I will consider the grounds claimed by the Applicant.
In respect of ground (a), the Tribunal did consider the fact that the Applicant was a member of a particular social group as an ethnic Chinese Indonesian. The Tribunal considers the Applicant’s claims in this regard on pages 26 and 27 of the Court Book, considers Independent evidence on this subject from pages 27 to 39, and makes findings and gives reasons on this issue from pages 37 to 40 of the Court Book. This ground of review must fail.
In respect of ground (b) (assuming that the Applicant would not be persecuted if he lived his life discreetly or in secret), the Tribunal made no such finding or assumption. This ground of review fails.
In respect of ground (c) (assuming that the Applicant could have no well-founded fear of persecution), the Tribunal did not make this assumption. The Tribunal considered the independent evidence and then decided that the Applicant would be able to access state protection. This ground of review fails.
In respect of ground (d) (failing to appreciate the nature of persecution), the Tribunal correctly cited the “real chance” test at Page 25 and applied it page 40 of the Court Book. This ground of review fails.
In respect of ground (e) (failed in asking if it was satisfied that the Applicant would be harmed if he returned), again I am satisfied that the Tribunal correctly applied the “real chance” test. This ground of review fails.
In respect of ground (f) (failing to determine whether there have been significant changes in Indonesia), the Applicant was unable to explain the meaning of this ground. Clearly, the Tribunal did consider that there had been changes in Indonesia at pages 32, 33, 36, 39 and 40 of the Court Book. If the ground refers to changes up to 2005, it is irrelevant to the review of a decision made on 30th June 2000. Either way, this ground of review fails.
In respect of ground (g) (unreasonable rejection of claim of disproportionate persecution of ethnic Chines Indonesians), the Tribunal did consider that claim, at pages 38 and 39 of the Court Book. This ground of review fails.
In respect of ground (h) (finding that the Applicant is not a person to whom Australia owes protection obligations), this is no more than a “catch-all” claim (top quote counsel for the First Respondent). To my mind, it is no more than a merits review claim, which is impermissible. This ground of review must also fail.
As to a claim of denial of procedural fairness generally, this ground fails. The Applicant had the assistance of a Migration Agent up to the hearing. He attended the hearing and gave oral evidence with the assistance of an interpreter. He made no claim that the hearing itself was in any way flawed.
Notice of objection to competency
The First Respondent has filed a Notice of Objection to Competency, claiming that the application for review was filed outside the time of 28 days from notification of the decision provided by s.477 (1A) of the Migration Act 1958. The Applicant was notified of the decision of the Refugee Review Tribunal on 21st July 2000. He did not file his Application to this Court until 1st August 2005. The application was made more than five years after the Applicant was notified of the decision.
The court has no power to extend the time limit contained in s.477(1A). It would not apply if the decision was not a privative clause. In my view, the Applicant has not made out any jurisdictional error. The Tribunal decision is a privative clause decision and attracts the protection of s.474 of the Migration Act.
As the application is out of time, the Court has no jurisdiction to hear the application. The application is not competent.
Delay
Even if there were a ground for review of this decision, in my view the delay in commencing proceedings is so excessive and so poorly explained that it would be quite wrong to grant relief. The Applicant admitted to the Court that he became aware of the decision in July 2000 but said that he did not have the money to get a lawyer to challenge the decision in a court. He said that he did not have a full-time job and had no money for a lawyer. He did not make any inquiries about a lawyer.
The Applicant said that he was taken into immigration detention on 17th March 2005. Even then, he did not seek to commence court proceedings. He wrote a letter to the Minister on 1st April 2005 but received an unfavourable reply on 29th April. Even after that, he did not file his application to this Court until 1st August 2005.
The delay is so excessive and the explanation is so unsatisfactory that it is inappropriate for a court to grant relief by way of a constitutional writ. I note that the delay in this case, more than five years, is even longer than the period of delay referred to in S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283. That decision, being a decision of the Full Court of the Federal Court, is binding on the Federal Magistrates Court.
In my view, the application must be dismissed. The application is incompetent, and I will make such a finding.
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: 17 October 2005
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