SZGZW v Minister for Immigration & Anor (No.2)
[2006] FMCA 1653
•7 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGZW v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2006] FMCA 1653 |
| 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 conceded. 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 delay – partial explanation for delay – applicant remained in detention without commencing any application for relief until an incident in May 2005 – application refused on discretionary grounds. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.474 |
| SZGZW v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 457 Xie v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 543 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 Gararth v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 316 followed. |
| Applicant: | SZGZW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2302 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 4 October 2006 |
| Date of Last Submission: | 4 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 7 November 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitor for the Respondent: | Ms Quinn |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $7,300.00.
I allow twelve (12) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2302 of 2005
| SZGZW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL 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. The decision was made on 23rd September 1996. The Refugee Review Tribunal handed down its decision on 24th September 1996. The Tribunal affirmed 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.
Earlier Proceedings
The Application was first heard by me on 28th November 2005. Counsel for the First Respondent Minister conceded that the Tribunal failed to comply with the requirements of the Migration Act at the time to provide the applicant with an opportunity to be heard (Xie v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 543), and that this was an error going to jurisdiction.
However, he submitted that relief should be refused on discretionary grounds because of the lengthy and unwarrantable delay in commencing these proceedings, nearly 9 years after the decision was handed down. I accepted that submission and exercised my discretion to refuse relief. The application was dismissed.
The Applicant appealed to the Full Court of the Federal Court.
On 28th April 2006, Jacobson J, exercising the jurisdiction of the Full Court, made the following orders:
i)The appeal be allowed.
ii)
The orders of the Federal Magistrates Court made on
28 November 2005 be set aside.
iii)The proceeding be remitted to the Federal Magistrates Court for further hearing determination in accordance with these reasons.
The proceedings are now for determination on the issue of whether relief should be refused in the exercise of the Court’s discretion on the ground of delay.
On 11th September 2006 I listed the application for Final Hearing on
4th October 2006. I directed the parties to file and serve any further affidavit material upon which they sought to rely by 27th September 2006. Neither party filed any affidavit.
The Applicant’s evidence
The Applicant gave evidence through an interpreter in the Mandarin language. As he was not legally represented, I explained to him about the concept of giving evidence and being cross-examined. He said that he understood.
The Applicant said in his evidence that he first arrived in Australia on 22nd April 1994. He applied for a visa claiming to be a refugee on
18th May 1994. He was refused in 1995. He applied to the Refugee Review Tribunal for a review of that decision. He said he did not know about the written application to the Tribunal because he entrusted that to the immigration agent that he had. He was shown a copy of his application and identified his signature on it. He told the Court that the agent prepared the document and he signed it.
The Applicant said that he was living at an address in Campsie at that time. He kept that address until 1997 or 1998 because he was afraid he would not receive letters from the Department (of Immigration). He did not recall receiving any letter from the Refugee Review Tribunal.
He said that he did receive letter but the lawyer (possibly his migration agent) said they were useless, so he threw them away.
On the basis that the Applicant’s adviser was actually a lawyer, I then advised about the concept of legal professional privilege and his right not to disclose any advice that his lawyer had given him. The Applicant said that he understood.
He went on to say that the lawyer told him that he had prepared and lodged the refugee application for him and there was nothing else that he needed to do except “pay the money and wait”.[1] The Applicant said that he never heard about having to attend a Tribunal hearing. He asked the “lawyer” about the progress of his application but was told that if anything happened he would be contacted.
[1] Transcript page 7
Eventually the Applicant moved to another part of Sydney. He said he never heard from the Tribunal until he was located by immigration officers and then he knew his application was over.
On 23rd September 2003 (he said) the Applicant was apprehended by Immigration officers whilst working at a restaurant[2]. He went into the Immigration Detention Centre at Villawood and has remained there ever since.
[2] According to the Minister, the date was 26th September 2003.
He explained that he decided to apply to the Court for a review of the Tribunal decision in August 2005 as a result of an incident that occurred in May 2005. The Applicant said that in May he and a number of other Chinese detainees were questioned by Chinese officials whilst they were in detention. After he was questioned he was placed in a cell inside the centre and remained there for two weeks. He said he was scared that he would be sent back to China. It was after he was released from the cell that he decided to apply to the Court.
The Applicant’s explanation for not applying to the Court before that time was:
I broke the immigration law and I hoped I could wait to the day the Department released me. If I have to return to my country I was persecuted and I couldn’t live on. I’d been here for more than ten years. I hoped I could wait to the date the Department forgive me.[3]
[3] Transcript page 10
The Applicant told the Court he had not contacted his migration again after he was taken into detention in September 2003:
No, I’ve never contacted that immigration agent. Since I lost the contact with him in 1997 I didn’t have any details of him, no address, nothing I could rely on to contact the person and I thought – I didn’t – I thought it might take a long time for the department to look at my application so I stayed in Australia and wherever I could find job to do and I did the job.[4]
[4] Ibid, page 10
The Applicant told the Court that when he went into detention he could not find a lawyer and he just followed the instructions of the Department.
In cross-examination, the Applicant confirmed that he had not spoken with his migration agent since 1997. He could not recall being told that the agent had lodged an application on his behalf to the Minister to exercise his discretion. He just went to his old address and checked to see if he had any letters. The last time he checked was in 1999. He said he thought his application had been forgotten. He did not make any inquiry because he thought if he did not inquire properly the Department would deport him. He had a bridging visa and he thought it was permanent. He knew that if his application was refused he would need to depart Australia within 28 days but he did not receive anything to tell him that. He did not know that his visa had been refused until he was interviewed by Immigration officers the day after he was arrested.
The Applicant said in cross-examination that he did not apply to the Court immediately after he was detained because:
I didn’t know what to apply at that time and I didn’t know what I can do. Just waited for the decision of the Department, what they want me to do.
The Applicant agreed to a question by Ms Quinn for the Minister that he knew when he was taken into detention that his visa application had been refused but he did not do anything because he was hoping that the Department would just let him stay anyway. When the Chinese authorities spoke to him at the detention centre he thought everything was over and the Australian Government was going to hand him over to the Chinese authorities. He was scared so he applied to the Court.
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 the recent decision of Gararth v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 316, a decision on appeal from the Federal Magistrates Court, Wilcox J said at [62]:
There is ample authority for the proposition that excessive, unexplained delay will justify a court in refusing constitutional relief, even to an applicant who has otherwise made out a good case. In determining, for this purpose, what amount of delay should be considered excessive, it will always be necessary for the court to examine all the circumstances of the case. The longer the delay, the more difficult it will be for an applicant to resist a respondent’s invocation of the court’s discretion. Although there is not, and should not be, a rigid rule, a delay of five years would ordinarily be extremely difficult to excuse.
His Honour went on to say at [63]:
A delay of two years in seeking constitutional relief is a delay of such significance as to call for an explanation, if a court is not to reject the case on discretionary grounds.
The decision in Gararth, an appeal from this Court, is binding on this Court and I propose to apply it to the case before me.
I have had the opportunity to hear evidence from the Applicant in the witness box and observe his demeanour over a period of one hour and forty minutes. He was not shaken in cross-examination. I formed the impression that he was a rather unsophisticated man and I accept the truth of his evidence.
The Applicant said that he had put his case into the hands of a migration agent who had promised to handle his application for him. He made inquiries from time to time but was constantly assured that the application was being considered by the Department or the Tribunal. It is a not uncommon tale in this jurisdiction, but this does not mean that it is necessarily untrue in every case. The Applicant’s account has the ring of truth to it. He made admissions against interest, such as his admission that he refrained from contacting the Department for fear of being deported. I am satisfied that the Applicant has displayed a degree of ‘wilful blindness’ in his behaviour until he was apprehended in 2003, but I am not satisfied that there is any evidence that he was actually notified of the Refugee Review Tribunal’s decision until after he was detained in September 2003.
I am satisfied, however, that the Applicant was aware of the Tribunal’s decision from the day that he was interviewed by immigration officers at Villawood. From his evidence, the Applicant was interviewed the day after he was taken into detention, which would be
24th or 27th September 2003. Thus, in considering the question of delay, the time starts from that date.
What the Applicant has to explain is a delay from late September 2003 until 22nd August 2005, when he filed his application. The Applicant says that he decided to apply to the Court after he was interviewed by Chinese officials in the detention centre in May 2005 and subsequently placed a in cell with other detainees for two weeks. The account of being interviewed by Chinese officials whilst in Immigration detention is one that the Court hears from time to time, also, but that does not necessarily mean that it is a fabrication. It is a disturbing allegation that people who have applied for refugee status are interviewed by officials from the country from which they have departed whilst being held in detention, but I do not disbelieve this Applicant’s evidence about that fact.
It is clear from the Applicant’s evidence that he did not do anything to challenge the Refugee Review Tribunal’s decision or the Minister’s delegate’s decision from late September 2003 until some time after May 2005. He filed his application on 22nd August 2005. Until then, he accepted that he had broken the immigration law, as he put it, and he was waiting until the Department “forgave” him. In my view, the situation is very different from the one described by Wilcox J in Gararth (supra) at [64]. The Applicant in this case did not give any clear indication to the Minister or the Tribunal of his unwillingness to accept the Tribunal’s decision as to the final resolution of his rights for approximately 23 months. In my view, that is an excessive delay and one that calls for a rejection of relief on discretionary grounds, notwithstanding the conceded jurisdictional error.
The application will be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 7 November 2006
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