SZGZW v Minister for Immigration
[2005] FMCA 1781
•28 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGZW v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1781 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of China who did not attend the hearing of the RRT – jurisdictional error found. PRACTICE & PROCEDURE – Delay – where decision made on 23 September 1996 – where application not filed at Court until 22 August 2005 – where applicant has been in Immigration detention since 26 September 2003 – prerogative writs – discretion to refuse relief because of lengthy and unexplained delay. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.474, 477, 483A Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001, Schedule 3 item 18 |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 Xie v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 543 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132 Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 |
| Applicant: | SZGZW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2309 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 November 2005 |
| Date of Last Submission: | 28 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 28 November 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr Kennett |
| Solicitors for the Respondent: | Phillips Fox |
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.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2309 of 2005
| SZGZW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 23rd September 1996. The Refugee Review Tribunal handed down its decision on 24th September 1996.
The decision of the Tribunal was to affirm the decision of the delegate of the Minister not to grant a protection visa to the Applicant.
Background
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 22nd April 1994. He applied for a Protection (Permanent) Entry Permit on 18th May 1994. On 1st September 1994 the protection visa was introduced for people in Australia seeking protection as refugees under s.36 of the Migration Act 1958 (Cth).
On 16th February 1995 a delegate of the Minister for Immigration and Multicultural Affairs refused the applicant a protection visa. He applied for a review of the decision by the Refugee Review Tribunal on 23rd March 1995.
The Tribunal wrote to the applicant on 4th September 1996 offering him the opportunity to attend a hearing of the Tribunal on 24th October 1996. Because the applicant did not telephone the Tribunal or complete the hearing form as the letter requested him to do, the hearing did not take place. The Tribunal decided the application on the material available to it and, not surprisingly, made a decision that it was not satisfied that the applicant was a refugee and affirmed the decision not to grant a protection visa.
The Tribunal wrote to the applicant on 24th September 1996, sending him a copy of the decision.
The applicant sought Ministerial intervention, and a decision was made not to exercise that discretion on 27th June 1997. The applicant did not make any application for judicial review of the Tribunal decision until he filed this application on 22nd August 2005.
The applicant was last granted a Bridging visa on 10th February 1999. That visa has since expired.
The applicant was taken into Immigration detention on 26th September 2003 after having been located by immigration officers. He has remained in the Immigration Detention Centre at Villawood since then.
The Application for Judicial Review
In his application filed on 22nd August 2005, the applicant seeks the following orders:
a)an order that a writ of certiorari be issued quashing the decision of the Tribunal; and
b)an order that a writ of prohibition be issued prohibiting the respondent Minister from acting upon or giving effect to or proceeding further upon (sic) the decision.
The applicant relies upon the following grounds in his application:
a)the Tribunal exceeded or constructively failed to exercise jurisdiction in making the decision to affirm the decision of the Respondent is not to grant the applicant a protection visa and
b)The Tribunal erred in law in arriving at the decision to affirm the decision of the respondent not to grant the applicant a protection visa. For a protection visa to make a determination as to whether criteria for the grant of the visa prescribed by the Act or Regulations made thereunder were satisfied. The Act at the time of the Applicant’s review application to the Tribunal required the Tribunal to review the decision of the respondent and to that and (sic) the Act rested (sic) the Tribunal with power and discretions conferred by the Act on the Respondent.
No particulars are provided for the first ground. The second ground, whilst in somewhat garbled form, refers to the claim that the Tribunal failed to conduct a review under the relevant provisions of the Migration Act at the time.
The First Respondent’s submission
For the First Respondent Minister, Mr Kennett of Counsel conceded that the Tribunal did fail to comply with the requirements of the Migration Act at the time to provide the applicant with an opportunity to be heard, referring to Xie v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 543. He also conceded that this was an error going to jurisdiction.
As a result, the decision is not a privative clause decision as defined in s.474(2) of the Migration Act so that the time limit in s.477(1A) does not deprive the Court of jurisdiction. He further submitted that s.483A of the Migration Act, which confers the relevant jurisdiction on the Court, applies in relation to applications made under s.477 of the Act after 2nd October 2001, by virtue of Schedule 3 item 18 of the Jurisdiction of the Federal Magistrates Service Amendment Act 2001. The Minister accepts that the intention of s.483A and the relevant transitional provisions was to confer jurisdiction on the Federal Magistrates Court to deal with applications concerning decisions made, or purportedly made, under the Act, notwithstanding the logical difficulty in treating an application as being made under s.477 when it falls outside that provision.
As a result, even though the Minister’s solicitors filed a Notice of Objection to Competency on 20th September 2005, the Notice of Objection to Competency was not pressed.
He submitted, however, that relief should be refused on discretionary grounds. The remedies of certiorari and prohibition sought by the applicant are both discretionary (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 89, 105-109, 136-137, 144; Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 394, 410, 415-423, 454, 465-466).
Unwarrantable delay by the applicant is one of the well-recognised bases upon which the discretion to refuse relief may be exercised.
The delay by the applicant in this case is extraordinary. Relief, he submitted, should be refused, despite the legal flaw in the Tribunal’s decision.
Applicant’s submission
The applicant did not file any written submissions. He told the court that he was not aware of the decision of the Tribunal until the decision was translated for him at court.
He said that he did not attend the hearing because he did not receive any letter, otherwise he would have gone. When he was in Immigration detention he wanted to bring the case to court but he did not have any money for a lawyer. That is why he stayed in detention.
The applicant said that he believed that he had been placed in detention because he had become illegal. He only commenced these proceedings after he was interviewed by Chinese Government officials in the detention centre in June or July. He believed that, once his identity was known, he would be persecuted or subject to illegal punishment if he were to return to China.
The applicant said that he feared that he would be removed from Australia and returned involuntarily to China as a result of the visit by the Chinese officials, whom he believed were from the Chinese Security Department. He then applied to the Court for review of the decision of the Refugee Review Tribunal. If it had not been for the visit by the Chinese Government officials, he said he would have remained in detention until the Australian Government pardoned him and gave him a visa.
The applicant knew that an application had been made on his behalf to the Refugee Review Tribunal. He said that he did not inquire from the Refugee Review Tribunal because his immigration lawyer had cheated him. He did not make any inquiry of the Department of Immigration and Multicultural and Indigenous Affairs because he feared that he would be deported.
Conclusions
Delay has always been a bar to relief of the kind sought in this matter (Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132). In Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495-6, McHugh J said:
[15] Where an applicant seeks the issue of the 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.
[16] Independently of the merits of the case, I find it difficult to see how a person who, with the knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay…The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of the proceedings in this court.
In M70 of 2002 (supra), the delay was a period of five years. The Full Court of the Federal Court refused relief on discretionary grounds. Similarly, in S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283, where there was a delay of 4 years and 11 months, the Full Court held that it was eminently open to the trial judge to characterise the appellant’s delay as “poorly” or “unsatisfactorily” explained and dismissed the appeal.
In this case the delay is over eight years from the time the decision was made until the applicant filed his application for judicial review.
By that stage, he had already been in Immigration detention for a month less than two years, and he chose not to commence proceedings until 22nd August 2005.
It is well established that an application to the Minister to substitute a more favourable decision under s.417 of the Migration Act is not an adequate reason for delay, nor is inability to afford legal advice.
An affidavit by Therese Mary Quinn, to which printouts from the Department’s database were attached, shows that an application to the Minister for substitution of a more favourable decision under s. 417 of the Migration was made and rejected on 27th June 1997. This shows that someone must have known prior to that date that there had been a decision by the Refugee Review Tribunal, and that decision had been unfavourable to the applicant.
It is clear that the applicant chose not to make inquiries from the Department because he did not wish to draw attention to himself.
He knew that he had become illegal, as he put it. The applicant has not established any explanation for the extraordinary delay in commencing these proceedings.
Noting the error in procedure by the Tribunal, which is a jurisdictional error, I am satisfied that a court may well have considered granting relief to the applicant if he had taken proceedings within a reasonable time after the decision had been handed down. However, the applicant chose not to take that course. He remained out of sight, avoiding officers of the Department of Immigration and Multicultural and Indigenous Affairs until he was located and placed into detention in September 2003. Whilst he said that he had remained in detention for over two years rather than return to China, he was satisfied to leave his wife and children there. He said he has not seen them for ten years.
In effect, he has abandoned them. There appears to me to be no reason why the interests of justice require that relief should be granted notwithstanding the applicant’s lengthy and unsatisfactorily explained delay.
The application will be dismissed.
The First Respondent seeks an order for costs in the sum of $5,000.00.
I am satisfied that this is a reasonable amount and within the scale in Schedule 1 of the Federal Magistrates Court Rules.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 30 November 2005
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