SZGXL v Minister for Immigration - [2007] FMCA 694

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGXL v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 694

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R, 417, 424A , 425, 483A

Applicant A169 of 2003 v Minister for Immigration [2005] FCAFC 8
Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289
Attorney-General (NSW) v Quin (1990) 170 CLR
Minister for Aboriginal Affairs v Peko-Wallsend (1985) 66 ALR 299
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v Yusuf (2001) 206 CLR 323
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
NAOA v Minister for Immigration [2004] FCAFC 241
Paul v Minister for Immigration (2001) 113 FCR 396
Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal Affairs (2000) 103 FCR 539
Re Commonwealth of Austrlia; Ex parte Marks (2000) 177 ALR 491
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Re Minister for Immigration; Ex parte Applicant S154/2002 (2003) 77 ALJR 1901
Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407
Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57
SAAP v Minister for Immigration [2005] HCA 24
SZBEL v Minister for Immigration (2006) 231 ALR 592
SZBPM v Minister for Immigration [2006] FCA 215
SZGPB v Minister for Immigration (No.2) [2006] FCA 587
VHAP of 2002 v Minister for Immigration (2004) 80 ALD 559
WAEE v Minister for Immigration (2003) 75 ALD 630

Applicant:

SZGXL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:	SYG2098 of 2005
Judgment of:	Lloyd-Jones FM

Hearing date:

20 April 2007

Delivered at:

Sydney

Delivered on:

11 May 2007

REPRESENTATION

Advocate for the Applicant:

Applicant appeared in person with the assistance of a Burmese interpreter

Counsel for the Respondents:

Mr J Mitchell

Solicitors for the Respondents:

Mr O Young of Blake Dawson Waldron

ORDERS

The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 8 August 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2098 of 2005

SZGXL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 8 August 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 8 November 2000 and handed down on 28 November 2000, affirming a decision of the delegate of the first respondent made on 28 March 2000, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZGXL”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
A Court Book ("CB") prepared by the first respondent’s solicitors was filed on 13 October 2005 and is marked Exhibit "A". It was read into evidence.
The following affidavits were filed in the proceedings and admitted into evidence:
a)Affidavit of the applicant, sowrn on 15 May 2006;
b)Affidavit of Oliver David Young, solicitor for the respondents, sworn on 4 April 2007.

Background

The Tribunal decision of R Smidt, reference N00/32890, provides the following background information. The applicant is a Burmese citizen who arrived in Australia on 27 October 1998. She applied for a protection visa on 16 March 2000. This application was refused by a delegate of the first respondent on 28 March 2000. The applicant applied to the Tribunal for review of the delegate’s decision on

28 March 2000.
The applicant claims a well-founded fear of persecution in Burma for reason of political opinion. She claims she is a supporter of the National League for Democracy (“NLD”) and that she was sentenced to six years gaol for smuggling videos of speeches made by NLD leader, Aung San Su Kyi, out of Burma.
In her protection visa application, the applicant said she feared she would be persecuted by the military government if she returned to Burma because she had distributed leaflets to students in Burma during a time of student riots and had secretly distributed information on developments in Burma around the country and internationally.(CB 38-39) She said she left Burma legally with her husband on 31 August 1997 and went to Singapore, where she lived and worked before coming to Australia on 27 October 1998.

Litigation history

A brief summary of the litigation history of the applicant is contained in the first respondent's written submissions prepared by Mr Mitchell as follows:
a)28 March 2000, the applicant filed an application for review in the Tribunal.
b)28 November 2000, the Tribunal handed down its decision.
c)15 December 2000, the applicant joined the Muin and Lie class action: Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30.
d)25 November 2002, the High Court dismissed the Muin and Lie proceedings and granted leave for the applicant to file draft order nisi, such application to be remitted to the Federal Court.
e)2 June 2003, the applicant filed a draft order nisi in the High Court.
f)20 February 2004, the Federal Court dismissed the applicant’s draft order nisi.
g)8 August 2005, the applicant filed an application in the Federal Magistrates Court.
h)11 November 2005, the applicant filed an amended application.
i)23 February 2006, the applicant filed a further amended application.

Tribunal’s findings and reasons

A summary of the Tribunal's reasons is also contained Mr Mitchell’s written submissions and I adopt paragraphs 4.2 and 4.3 of those submissions:
4.2The RRT did not accept the Applicant’s claims because they were found to be concocted. The reasons for this finding were as follows:
(a)   The Applicant’s oral testimony indicated that she was unaware as to when Aung Sun Suu Kyi was under house arrest, notwithstanding that her written claims indicated the correct dates.
(b)   The Applicant’s oral testimony was inconsistent with her written claims in her application for review in a number of key respects.
(c)   The Applicant did not apply for a protection visa until 18 months after her arrival in Australia. Her explanations for the delay were inconsistent and indicated that she was willing to change her evidence and make false claims.
(d)   The Applicant was able to travel to Burma numerous times in 1997 and 1998 and was issued with a new passport in 2000. This indicated that she was not of adverse interest to the authorities in Burma.
4.3The RRT was not satisfied that the Applicant feared that she would be persecuted because of her real or suspected political opinion in Burma. Accordingly the RRT did not accept that she had a well-founded fear of persecution for a Convention reason.

Application for review of the Tribunal’s decision

On 8 August 2005, the applicant filed an application for review under s.39B of the Judiciary Act. In accordance with orders made at the first Court date, she was granted leave to file an amended application giving complete particulars of each ground of review relied upon by 14 November 2005. The applicant filed an amended application attaching a statutory declaration, sworn on 17 March 2004, a letter addressed to the first respondent requesting the exercise of powers under s.417 of the Act, and references in support of that application. At the directions hearing of 23 February 2006, the applicant was granted leave to file a further amended application. This order was complied with and contained the following grounds:
1.The Tribunal committed jurisdictional error of law in that it failed to take into account information that it was obliged to take into account pursuant to s424 of the Migration Act, being:
a) Country information report No. 113/00 dated 15 March 2000 CX41129
b) Country information report No. 285/00 dated 2 June 2000 CX42364
2.The Tribunal committed jurisdictional error of law in that it took into consideration material adverse to the interests of the applicant without disclosing that material to her and giving her an opportunity to respond to it.
Particulars
DFAT Country Profile Myanmar, January 1996 particularly at paragraph 2.6.1.

Submissions and reasons

The applicant was a self-represented litigant who appeared with the assistance of a Burmese interpreter. Prior to the hearing, she filed written submissions which covered a number of issues. That document indicated that the applicant relied upon her further amended application filed on 23 February 2006. The applicant also confirmed that she had participated in the Muin and Lie class action and how she became aware that that class action had been dismissed. The applicant then addressed the first ground of the further amended application. Her written submissions states that the Tribunal is required to disclose to her adverse information contained in a January 1996 DFAT country profile of Myanmar, in accordance with the principles of procedural fairness. In particular, the following paragraph of the report:
2.6.1Myanmar passports are issued only to Myanmar citizens. Myanmar passport regulations state that “no person should receive a Myanmar passport, if there is reasonable ground for apprehending that his presence in any country abroad would be dangerous or prejudicial to the interests of Burma.” Only if the issuing authority “is satisfied that the applicant is unquestionably a fit and proper person to receive a passport”, will a passport be issued. Document No CX7679, Country Information Service, DIEA.(CB 90)
Mr Mitchell submits that the Tribunal clearly did consider the country information particularised in the further amended application: CB 81 and 110. The Tribunal assessed that a person who had been sentenced to a seven year gaol term would not be issued with a passport. It based this on country information that there was an approval process for the issue of passports and high profile political prisoners could find it difficult to obtain permission to leave Burma.(CB 110)
Mr Mitchell submits in respect of the remainder of the country information that the Tribunal is not required to give reasons why it accepts or rejects individual pieces of evidence and contentions made by the applicant, where its general credibility findings subsumes all the evidence before it: Minister for Immigration v Yusuf (2001) 206 CLR 323 at [68], [73] – [74] and [91]; Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]; Applicant A169 of 2003 v Minister for Immigration [2005] FCAFC 8 at [24]; WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]; Paul v Minister for Immigration (2001) 113 FCR 396 at [79].
Mr Mitchell further submits that the weight given to various pieces of country information was a factual matter for the Tribunal and this Court has no jurisdiction in that respect: Attorney-General (NSW) v Quin (1990) 170 CLR at 35-6; Minister for Aboriginal Affairs v Peko-Wallsend (1985) 66 ALR 299 at 309; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 281-282, 291-292.
The Tribunal decision, under the heading ‘Findings and Reasons’, clearly sets out its consideration of the country information on the issue of passports.(CB 81.4) Section 424 of the Act gives the Tribunal the power to access any information which it considers relevant. The conflict between the applicant’s claim of being sentenced to 7 years gaol and then being granted a passport which was subject to strict security checks, was clearly identified by the Tribunal. The Tribunal did take this information into consideration and this is clear from its decision record. I agree with the submissions made by Mr Mitchell that the first ground cannot succeed.
As a matter of caution, the applicant may have incorrectly pleaded the first ground in that she intended to claim a breach of s.424A of the Act. What she may have wanted to argue was that the Tribunal did not provide her with the two identified pieces of country information in accordance with s.424A(1). However, the two reports clearly fall within the exception in s.424A(3)(a) and she would not succeed in this argument.
In respect of the second ground, the applicant submits that the Tribunal found her untruthful regarding her involvement in and support for the NLD. This formed the basis for an adverse finding as to her credibility. The applicant submits that the failure of the Tribunal to disclose relevant country information upon which it relied to her, resulted a failure to accord her procedural fairness. In support of this contention, the applicant relies on Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57 at [140] per McHugh J:
A basic principle of the common law rules of natural justice is that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise⁶⁹. This does not mean that all material which comes before the decision-maker must be disclosed but, "in the ordinary case ... an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made…
Mr Mitchell submits in response that there is no evidence that the determinative issues arising from the country information were not put to the applicant: SZBEL v Minister for Immigration (2006) 231 ALR 592 at [33] – [43] as there is simply no transcript in evidence. In the absence of such a transcript, no inference can be drawn that procedural fairness had not been accorded to the applicant: NAOA v Minister for Immigration [2004] FCAFC 241 at [21]. Mr Mitchell submits that the Tribunal decision shows that it did discuss Burma’s process of passport approval with the applicant: CB 77.4, 77.9 and 79.5. In this respect, s.425 of the Act requires at most that determinative issues be put to the applicant. This reflects the common law position that only critical issues are required to be put to an applicant, not specific documents or conclusions reached by the decision-maker in respect of those issues: VHAP of 2002 v Minister for Immigration (2004) 80 ALD 559 at [17], [27]-[29] (recently applied in SZBPM v Minister for Immigration [2006] FCA 215 at [19]-[20]); Re Minister for Immigration; Ex parte Applicant S154/2002 (2003) 77 ALJR 1901 at [54], [85]-[86]; Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal Affairs (2000) 103 FCR 539 at [61]-[70].
I accept that the submissions made by Mr Mitchell correctly address the applicant’s claim in the second ground. I am satisfied that this ground cannot be sustained.
Regarding the issue of delay in making an application to the Federal Magistrates Court, the applicant stated that her class action was dismissed in 2004. She immediately approached Simon Jeans & Associates (solicitors and migration agents) who prepared a letter to the first respondent dated 17 March 2004, requesting her to exercise her discretion in accordance with s.417 of the Act. The applicant submits that she had not intentionally delayed her application to this Court nor abused the judicial system and had every intention to follow up on the Tribunal decision. When she became aware that the first respondent had declined to exercise her discretion under s.417, the applicant then applied to the Federal Magistrates Court.
Mr Mitchell submits that the delay from the time the Tribunal decision was handed down and when the applicant filed her application in the Federal Magistrates Court, is grounds to refuse relief in the exercise of the Court’s discretion: SAAP at [80], [174] and [211]; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [82]-[83]; SZGPB v Minister for Immigration (No.2) [2006] FCA 587 at [60].
Mr Mitchell submits that the following facts and circumstances should be considered:
a)Almost five years had passed between the handing down of the Tribunal decision and the commencement of proceedings in the Federal Magistrates Court, notwithstanding that the period between the applicant joining the Lie class action in December 2000 and its dismissal in November 2002 should not be counted in the period of delay: Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289 at [29]. That still leaves an approximately 19 month delay in filing the judicial review application.
b)The applicant has not sought to explain the reason for this delay.
c)It is permissible to consider the public interest requirement of an end to litigation about the acts or decisions of a public body: Re Commonwealth of Austrlia; Ex parte Marks (2000) 177 ALR 491 at 495; SZGPB at [62].
Clearly, the application to this Court is out of time with an unexplained delay of 19 months. The applicant’s submissions explain her actions after she was informed of the class action dismissal but make no reference to the delay after notification of the first respondent’s decision not to exercise her discretion under s.417. The situation is further complicated as the s.417 aplication was handled by a legal practitioner who specialises in this area of the law. Therefore, I am satisfied that the application does not identify a jurisdicitional erorr that can be sustained and must be dismissed.

Conclusion

I am satisfied that the grounds contained in the further amended application cannot be sustained. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.

I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

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

Associate:

Date: 11 May 2007