SZHAU v Minister for Immigration
[2005] FMCA 1898
•22 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHAU v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1898 |
| MIGRATION – Review of decision by Refugee Review Tribunal – Part B documents – procedural fairness – independent country information – delay of 7 years in seeking review of the Tribunal’s decision. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 418(3); 422B; 424; 483 |
| Muin & Anor v Refugee Review Tribunal & Ors (2002) 190 ALR 601 Minister for Immigration and Multicultural and Indigenous Affairs v Eshetu (1999) 197 CLR 611 Re Commonwealth; Ex parte Marks (2000) 177 ALR 497 |
| Applicant: | SZHAU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2419 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 12 December 2005 |
| Date of Last Submission: | 12 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Ms E. Lawson |
| Counsel for the Respondent: | Mr D. Jordan |
| Solicitors for the Respondent: | Ms A. Nesbitt, Sparke Helmore |
ORDERS
The Applicant’s applications before this Court are dismissed with costs.
That the Applicant pay the First Respondent’s costs in an amount of $5000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2419 of 2005
| SZHAU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection a visa to the Applicant.
The Applicant was born in Yanguan Li, Qixi Village, Wenwusha Town, Changle City, Fijian Province, Peoples Republic of China (“the PRC”) on 24 February 1972.
The Applicant was born as a Chinese citizen and claims to remain a Chinese citizen.
The Applicant claims to belong to the Han ethnic group and is a Christian.
The Applicant claims that prior to arriving in Australia she was unemployed.
The Applicant has two daughters born 18 October 1990 and 30 November 1992 and a son born 1 May 1995 who were residing in the PRC when the Applicant left the PRC. The Applicant also claims to have a husband who cannot be located.
The Applicant claims that she illegally departed from Xishuan Bana, Yunan, PRC on 24 February 1997. The Applicant claims that she obtained help from a friend to leave for Thailand whereby she obtained a Taiwanese passport to flee to Vietnam, and then left Vietnam for Australia.
The Applicant arrived in Australia on 4 May 1997.
On 3 June 1997, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
The Applicant claimed that if she returns to the PRC she will be persecuted by the government of the PRC in their attempt to eradicate unauthorised Christian churches.
On 8 July 1997, the Delegate refused the application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 8 August 1997, the Applicant lodged an application for review before the Tribunal. On 1 October 1998, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 29 August 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Pursuant to Order made 29 September 2005, the Applicant filed an amended application on 4 November 2005 (“the Amended Application”).
Legislative framework
Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia owes protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The proceeding before this court
The Applicant was represented by Counsel at the hearing before this Court.
Counsel conceded that the First Respondent had properly distilled the Applicant’s claims as contained in the document entitled Amended Application filed 4 November 2005. That document is more in the nature of submissions.
The First Respondent identified the grounds as below.
Ground 1 - The Tribunal was not provided with the Part B documents referred to in the Tribunal’s decision in contravention of s.418(3) of the Act. Consequently, the Tribunal did not comply with s.424(1) of the Act when it conducted on the papers and found that a favourable decision could not be made on this information alone.
Counsel for the Applicant made no submissions in respect of this ground, although it was not formally abandoned.
To the extent that the Applicant is relying on this ground, it is misconceived in respect of each of the sections identified. Section 418 of the Act, at the relevant time, is in the following terms:
“418(2) The Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that:
(a)sets out the findings of fact made by the person who made the decision; and
(b)refers to the evidence on which those findings were based; and
(c)gives the reasons for the decision.
(3) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.”
Section 418(3) of the Act obliges the Secretary of the Department to provide to the Registrar of the Tribunal, as soon as practicable after notification, all documents in the Secretary’s possession or control and considered by the Secretary to be relevant to the review of the decision. It does not place any obligation on any body or person to provide the Applicant with particular materials.
Section 424, at the relevant times, stated:
“424(1) If, after considering the material contained in the documents given to the Registrar under sections 418 and 423, the Tribunal is prepared to make the decision or recommendation on the review that is most favourable to the applicant, the Tribunal may make that decision or recommendation without taking oral evidence.”
That section relates simply to the material that the Tribunal must have regard to in considering whether the Tribunal is prepared to make its decision or recommendation on the review on the papers alone.
In the case before this Court, the Applicant appeared and gave oral evidence. There was no review conducted on the papers alone.
To the extent the complaint is in relation to documents identified in Part B of the Protection Visa Decision Record, there is no evidence or material to suggest that the Tribunal was not provided with the Part B documents in accordance with s.418 of the Act. In Muin & Anor v Refugee Review Tribunal & Ors (2002) 190 ALR 601 there were agreed facts that the Part B documents were not physically provided to the Tribunal. There is no such agreement in the case before this Court and, as stated above, there is nothing to suggest that the documents were not so provided.
Accordingly, this ground is rejected.
Ground 2 - The Applicant was denied procedural fairness because the Tribunal failed to disclose any and/or all adverse material.
Counsel for the Applicant identified the “adverse material” to which this ground refers as the independent country information to which the Tribunal had regard.
Section 422B of the Act was not in operation at the time of this Tribunal decision. Accordingly, the common law requirements of procedural fairness and natural justice are relevant. However, those principles do not require that all documents in the possession of the Tribunal be provided to the Applicant. The principles require that those matters that operate upon the mind of the Tribunal by way of concern, or which may lead to an adverse finding in respect of the Applicant, be put to the Applicant with an opportunity for the Applicant to respond. The Tribunal in this case followed that course.
The Tribunal specifically put to the Applicant the independent country information before it, to which it had regard, and which suggested that ordinary members of unregistered churches do not generally face harm or harassment serious enough to amount to persecution. The Applicant responded to that information and her adviser made oral submissions to the Tribunal.
Counsel for the Applicant conceded that there is no adverse finding, made by the Tribunal, that relied on the independent country information or material identified by Counsel for the Applicant as “adverse material”.
The Tribunal was not satisfied that the Applicant was a person to whom Australia owes protection obligations pursuant to the Refugees Convention as amended by the Refugees Protocol because it found that the Applicant had never suffered any form of harm or harassment that could amount to persecution as a result of her religious activities or for any other Convention reason.
In its decision, the Tribunal identified with particularity the various claims made by the Applicant. It also recounted the exchanges it had with the Applicant at the hearing on 8 September 1998 and the oral submissions made by the Applicant’s adviser. It also referred to material, received after the hearing, which was considered by the Tribunal.
The first finding made by the Tribunal in the Findings and Reasons section of its decision was that it “did not find the applicant to be a credible witness”. The Tribunal did not accept explanations proffered by the Applicant and her adviser as to why she had “important additional claims” not made prior to the Tribunal hearing. The Tribunal found, after rejecting the Applicant’s new claims, that “the remainder of the applicant’s evidence was also of a quality which suggests to the Tribunal that she rehearsed much of her evidence and she became confused when the questions asked by the Tribunal deviated from the script which he had hoped the Tribunal would follow.”
Those are findings of fact that were open to the Tribunal on the material before it.
None of those findings arose out of any of the “adverse material” identified as the independent country information.
Accordingly, this ground is rejected.
Ground 3 – The Tribunal contravened s.420(2)(b) of the Act because it failed to act according to substantial justice and the merits of the case.
Whilst Counsel for the Applicant did not address on this ground, it was not formally abandoned.
Section 420(2)(b) of the Act is in the following terms:
“(2) The Tribunal, in reviewing a decision:
(b) must act according to substantial justice and the merits of the case”.
It is generally accepted by the authorities that s.420 contains “general exhortatory provisions, the terms of which do not conform to the common understanding of a “procedure”” (Minister for Immigration and Multicultural and Indigenous Affairs v Eshetu (1999) 197 CLR 611 at 642). However, s.420(2) does not exclude consideration of the question whether or not there was evidence upon which the Minister attained a state of satisfaction required by s.65 of the Act.
This ground is not particularised any further. As referred to above, there was evidence in respect of which the Tribunal made findings open to it and which were capable of forming the basis of the Tribunal’s conclusion that it was not satisfied that the prescribed criteria required by s.65 had been met in that it was not satisfied that the Applicant is a person to whom Australia owes protection obligations. In circumstances where the criteria are not met, the grant of a visa is to be refused.
Accordingly, this ground is rejected.
Conclusion
There being no jurisdictional error in respect of the Tribunal’s decision, the decision is a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Delay of 7 years
For the sake of completeness, I have addressed below the issue of delay if the decision was affected by jurisdictional error.
No evidence was provided prior to the hearing before this Court in respect of the Applicant’s delay in filing in this Court. The Applicant was given leave to provide oral evidence to the Court in relation to any explanation by her for her delay in filing her application in this Court on 29 August 2005, in respect of a Tribunal decision made 1 October 1998, a delay of almost 7 years.
Her explanation for the delay was essentially that she relied on her adviser. However, she simply took no active steps herself to inform herself of any appeal process available to her. When asked why she did not contact her adviser she said she could not answer that question. When asked, why not, she answered that she did not know how to answer that question. When asked why she did not seek advice from anyone else, she simply responded “I didn’t”. She was extremely slow to answer any question she thought not to be in her interests, and when she did answer, her answers were often evasive and unresponsive. She was a singularly unimpressive witness whose evidence was largely unresponsive, unclear, hesitating and vague. Her evidence did not remotely explain a delay of that duration.
Had the Tribunal’s decision been affected by jurisdictional error, this Court would have had to consider whether it should exercise its discretion to refuse the constitutional writ relief sought on the grounds of unwarrantable delay. As McHugh J in Re Commonwealth; Ex parte Marks (2000) 177 ALR 497 at [16]-[17] noted, an extension of time for the commencement of an application for constitutional writs would not be granted where more than a year had elapsed between the making of a decision and the commencement of proceedings for relief “in all but very exceptional circumstances.” McHugh J further noted that the efficacy of public acts, decisions and judgments cannot be “the hostage of an applicant’s search for favourable legal advice” and that the Respondent’s rights “should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion”.
Moreover, whilst it is a relevant consideration to take into account in the exercise of discretion, the making of an application under s.417 to the Minister does not, in my view, suffice to excuse a delay of almost 7 years.
For those reasons, had the decision been affected by jurisdictional error I would have refused the relief sought.
Notice of objection to competency
I note that a Notice of Objection to Competency was filed in this Court on 15 September 2005. As the Tribunal’s decision is a privative clause decision and the filing by the Applicant for relief in this Court was well in excess of the 28 days provided by s.477(1)(A) of the Act, the applications filed in this Court are incompetent.
The applications before this Court are dismissed with costs.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 19 December 2005
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