SZHEH v Minister for Immigration, Multicultural and Indigenous Affairs - [2006] FMCA 1301

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHEH v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1301

MIGRATION – Application to review decision of Refugee Review Tribunal – jurisdictional error conceded – whether Court should exercise its discretion to refuse to grant relief where delay in commencing proceedings.

Migration Act 1958 (Cth), s.425

F Hoffman – Laroche and Co AG v Secretary of State for Trade and Industry (1975) AC 295
Gararth v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 316
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Re Refugee Review Tribunal and Anor; Ex parte Aala (2000) 204 CLR 82
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
SZEEF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 661
SZGZW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 547
SZHFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 86
Xie v Minister for Immigration & Multicultural Affairs (1999) 167 ALR 188

Applicant:

SZHEH

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2686 of 2005

Judgment of:

Barnes FM

Hearing date:

31 August 2006

Delivered at:

Sydney

Delivered on:

11 September 2006

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Ms S. McNaughton

Solicitors for the Respondents:

Phillips Fox

ORDERS

That a writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 11 December 1997.
That a writ of mandamus issue requiring the Refugee Review Tribunal to redetermine the applicant’s application according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2686 of 2005

SZHEH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 11 December 1997 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The first respondent concedes that the Tribunal made a jurisdictional error consisting of a failure to comply with s.425 of the Migration Act 1958 (Cth) (the Act). The only issue for the Court is whether it should exercise its discretion to refuse to grant relief by reason of the delay in filing the application in this Court. The application was filed on 22 September 2005.
It is relevant to have regard to the background to these proceedings.

In connection with his protection visa application of 4 April 1997 the applicant, who was represented at that time by a solicitor and migration agent Adrian Joel of Adrian Joel & Co, claimed to fear persecution consisting in particular of discrimination in the socio-economic and political circumstances in Fiji. The application was refused and the applicant sought review by application filed with the Tribunal on

28 April 1997. The applicant continued to be represented by Adrian Joel, whom he nominated as his adviser. Mr Joel provided a supporting letter in relation to the applicant’s claims.
By letter of 2 October 1997 sent to the applicant and to Adrian Joel & Co the Tribunal invited the applicant to give evidence at a hearing on 23 October 1997. That letter advised that the applicant was entitled to come to a hearing and that he may also, no later than 14 days after the date of the letter, tell the Tribunal in writing that he wanted it to take oral evidence from person or persons named in the enclosed request for hearing form. A date, time and place was specified for a hearing but the letter concluded: “If we do not hear from you within 14 days or if you fail to attend the hearing the hearing will not take place and the Tribunal may make a decision on the evidence it already has.”
The completed request for hearing form was received by the Tribunal on 23 October 1997. Mr Joel was named as adviser. It is conceded for the first respondent that the applicant replied to the hearing invitation form in such a way as to indicate that he wished to attend the hearing.
However on 24 October 1997 the Tribunal wrote to the applicant stating that the scheduled hearing had been cancelled as the applicant had failed to return the relevant form within the 14 day period specified in the letter of 2 October 2004 and stating that a further hearing would not be scheduled unless the applicant could satisfy it that he had good reason for not responding in time.
On 31 October 1997 the applicant wrote to the Tribunal to explain his delay in returning the form, but on 11 December 1997 the Tribunal notified the applicant of its decision to affirm the decision of the delegate.
The Tribunal found that as the applicant did not attend the hearing it was not in a position to test his claims and that the claims put forward by him did not amount to Convention-based claims of persecution.
By application filed in this Court on 22 September 2005 the applicant raised three grounds of review. It was conceded by counsel for the first respondent that the ground that the Migration Act 1958 (Cth) (the Act) was not properly observed raised an issue as to compliance with s.425 of the Act. It was further conceded that the Tribunal had failed to comply with s.425 as it stood at the relevant time, consistent with what was said by Cooper J in Xie v Minister for Immigration & Multicultural Affairs (1999) 167 ALR 188 at [23] as follows:
The RRT had no statutory power to impose conditions on the applicant and his family as to the exercise of their statutory right to give evidence on the hearing of their application for review by imposing time limits within which an election to be heard must be made. Nor was the RRT entitled to make the assumption that failure to respond meant that the applicants did not wish to attend on the hearing and give oral evidence as was their entitlement. Although it may have been administratively wearisome, the only course open to the RRT when it determined s.424 did not apply, was to set a date which it notified under s.426 and to proceed to a hearing on that date. It was the hearing which was the occasion on which the applicant and his family were entitled to give evidence or not as they then chose. No internal administrative arrangements of the RRT could take away that entitlement of the applicant and his family; certainly not without their informed consent communicated by them in a positive way to the RRT.
It was also conceded that even if the present s.425 had applied, an error would be manifest.
Notwithstanding the concession that there was a jurisdictional error consisting of a failure to comply with s.425 of the Migration Act, it was submitted for the first respondent that the Court ought to exercise its discretion to refuse to grant relief by reason of what was described as the “substantial delay” in the application to the Court for review.
The first respondent relied on an affidavit sworn on 8 June 2006 by Kate McNamara, a solicitor employed by the solicitors for the first respondent annexing documentation as to events that occurred after the Tribunal decision of 11 December 1997. Relevantly, on 15 January 1998 the solicitor for the applicant (Adrian Joel & Co) made a request to the Minister to exercise his discretion under s.417 of the Migration Act to substitute a more favourable decision for the decision of the Tribunal. That request was declined by letter dated 3 September 1998.
It is not disputed that the applicant was thereafter a member of the Harijanto and Muin and Lie class actions from 10 September 1998 to 20 June 2003. Adrian Joel continued to be his solicitor.
At the time at which the respondent’s written submissions were prepared the applicant had not filed any affidavit evidence explaining the delay, although he filed an outline of written submissions on 8 June 2006. However in light of the comments of Jacobson J in SZGZW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 547 at [39] – [434] and the absence of a Fijian interpreter on the date on which the matter was listed for hearing, the hearing was adjourned until 31 August 2006 to enable the applicant to give oral evidence as to the delay in commencing these proceedings.
At the hearing counsel for the first respondent clarified that the only period of delay with which the first respondent took issue was the period from 20 June 2003 to the lodging of the present application for judicial review on 22 September 2005.
The applicant gave oral evidence and was cross-examined by counsel for the first respondent. He told the Court that his solicitor was Adrian Joel from 1997 on. He had understood that Adrian Joel had won a case but that had not been formally communicated to him and he told the Court that in the period in issue, from mid-2003 on, he was waiting for Adrian Joel to write to him and tell him the next step to be taken. He told the Court that he had tried to call Adrian Joel several times but that he was not in. The applicant said that he was anxious about his case. He felt that he might be an illegal citizen. However he was not told with certainty that he was illegal until he was apprehended and detained in the Villawood Detention Centre. At that point, after investigating other avenues for visa applications, he began the process of making an application to this Court with the assistance of a friend.
The applicant also told the Court that he had spoken to “officers” in Adrian Joel’s office and had been told that they would be writing but that he did not receive any letter from them.
In cross-examination he explained that he was aware that a number of people had left Adrian Joel’s office but that he had spoken to one person there in approximately 2004 and had said that he had wanted to speak to Mr Joel who was not there. When she asked if she could help he asked what had happened in relation to his case and she said she would ask Mr Joel and that they would wait for Mr Joel. He never heard back and did not receive any letter.
It was put to the applicant that he was moving around a lot of that time because he was afraid he would be apprehended as an illegal immigrant, consistent with the statement in his written submissions that in fear of being reported as an illegal immigrant he tended to move from one place to the other as he had many relatives living in Australia (although I note that that statement was made the context of his explanation for not responding to a letter from the Tribunal in 1997).
The applicant said he moved amongst his relatives but that they would notify him if a letter came from Adrian Joel. He claimed that the fact that he was still being assisted by Adrian Joel gave him some confidence in relation to his situation and that while he moved around he always went back to his mail address. If he moved he let Adrian Joel know and his relatives would call him if a letter arrived from Mr Joel. He also claimed that he had gone to Adrian Joel’s office on a couple of occasions but that Mr Joel was not there or the office was closed.
It was put to the applicant that he had made no real effort to legalise his status in Australia from early 2004. He said that the agreement between Mr Joel and his clients was that when anything happened Mr Joel would write. He was relying on that and although he was anxious, he had a bit of confidence because he was hoping for a letter from Mr Joel. When it was put to him that, not having received a response from Mr Joel, he should have considered consulting another lawyer, he indicated that that would mean the process would start all over again and it would have cost more money. He said that he had been used to having Mr Joel acting for him for a long time and wanted to be loyal to what he was doing and that he relied on him in relation to his status. He said that Mr Joel was the only lawyer he knew and that he did not want to move away from him.
It was submitted for the first respondent that, as Wilcox J stated in Gararth v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 316 at [62] – [63], the relief sought in this instance is a discretionary remedy and:
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 of 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. (at [62])
His Honour went on to state at [63] in relation to the case before him where the delay was a little under two years that:
A delay of two years in seeking Constitutional relief is a delay of such significance as to call for explanation, if a court is not to reject the case on discretionary grounds.
Wilcox J found in Gararth that there had been an explanation for the delay in instituting proceedings. There had been an application to the Minister to substitute a more favourable decision for the decision of the Tribunal. The applicant had been involved in a class action. The proceedings were commenced less than a month after the class action was finalised.
On the basis of Gararth (also see SZEEF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 661) it was accepted that the relevant delay in this case was the delay from the time the applicant’s involvement in the class action ended, but contended for the respondent that this period of over two years called for explanation. While it was conceded that the applicant had given an explanation, it was submitted that he had failed to provide an explanation such as would persuade the Court not to decline relief.
It was suggested that assistance as to the factors relevant to the exercise of discretion was to be found in the decision of SZHFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 86. However in that case Federal Magistrate Smith considered a delay of more than four years in circumstances where, sometime in the year 2000, an applicant became aware of the Tribunal’s decision, but at no time before he was taken into detention in September 2005 sought advice from anyone expert in migration practice and law. His Honour found that the only step the applicant took to regularise his illegal status in that time was to apply for a bridging visa in 2005. His Honour concluded from this evidence:
… that at some point, probably during 2000, [the applicant] abandoned any real efforts to identify and pursue his rights to obtain a protection visa, and decided to protract his residence in Australia by remaining unlawfully and avoiding contact with the Department of Immigration.
In those circumstances Federal Magistrate Smith did not consider that the applicant’s evidence provided any “satisfactory explanation” for a delay which was characterised as unwarranted and inexcusable from the perspective of judicial review of administrative action (at [48]).
It was submitted for the first respondent that the applicant’s submissions in relation to his dealings with Adrian Joel were “extraordinary” and not credible, because the Court should not accept that a solicitor’s office would be so inefficient as to not communicate with a client for that period of time in light of the fact that the applicant said he notified changes of address, and/or in the alternative because a person in a position of the applicant who was fearful that he was illegal would follow up more actively with his solicitor to regularise his status. It was contended that it was appropriate to look at the quality of the explanation and all of the applicant’s conduct consistent with the statement by McHugh J in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 at [80] to the effect that the issuing of writs in circumstances such as those before the Court is discretionary and that discretionary relief may be refused:
if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands.
It is important to note that this is not an application for an extension of time within which an application for constitutional writs may be made (cf Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at [13] to [16] per McHugh J. See the discussion about the distinction between such circumstances and circumstances where a jurisdictional error has been established and the issue before the court is whether, despite this, the court should exercise its discretion to withhold relief in SZEEF at [101] – [107] and cf SZHFW at [52]).
As recognised by Federal Magistrate Smith in SZHFW at [49] the starting point or “correct approach” to the “analogous jurisdiction” of the High Court in relation to constitutional writs was expressed by Gibbs CJ in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 194 in relation to a refusal of prohibition:
If, therefore, a clear case of want or excessive jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the Court retains its discretion to refuse relief if in all the circumstances that seems the proper course.
In Re Refugee Review Tribunal and Anor; Ex parte Aala (2000) 204 CLR 82 at [51] – [52] Gaudron and Gummow JJ (with whom Gleeson CJ agreed at [5] as did Hayne J at [172] and see Kirby J at [148] – [149]) accepted the statement of Gibbs CJ in R v Ross-Jones as the correct approach in the exercise of the High Court’s original jurisdiction in matters in which a writ of prohibition was sought against an officer of the Commonwealth under s.75(v) of the Constitution. Their Honours expressed the view that the element of discretion involved two questions: first of whether the officers of the Commonwealth had acted in want or excess of jurisdiction; and secondly whether prohibition should not issue “having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances.” (at [53]).
Gaudron and Gummow JJ also stated that while other constitutional remedies were also attended by discretion, there was “no doubt” that the discretion “is not to be exercised lightly against the grant of a final remedy, particularly where the officers of the Commonwealth in question do not constitute a Federal Court and there is no avenue of appeal to [the High Court]” at [55]. Their Honours found some guidance as to the circumstances which may attract an exercise of discretion adverse to an applicant in what was said by Latham CJ, Rich, Dixon, McTiernan and Webb JJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400:
For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty is to be enforced arises or towards the Court to which the application is made. The Court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.

It is also important to note that as Kirby J stated in Aala at [148]
The public character of the legal duties which the constitutional writs were designed to uphold means that, ordinarily, they will issue where the preconditions are made out. But circumstances will occasionally arise where it is appropriate to withhold the writ because the party has been slow to assert its rights, has been shown to have waived those rights, or seeks relief in trivial circumstances or for collateral motives, and where the issue of the writs would involve disproportionate inconvenience and injustice (at 148).
His Honour continued (at [149]) that in exercising the discretion to refuse relief “if in all the circumstances that seems the proper course” the court:
will keep in mind the high purposes of vindicating the public law of the Commonwealth, of upholding lawful conduct on the part of officers of the Commonwealth, of defending the rights of third parties under that law, and of maintaining the provisions of the Constitution.
In Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 106 Gaudron J rejected an argument that relief should not issue because of delay involved in bringing proceedings. The delay was regarded as having been explained in circumstances where the applicant had sought to have his claims properly considered without the need to institute proceedings although the Minister had declined to exercise his powers. McHugh J suggested in Miah (at [151]) that the onus was on the respondents to demonstrate circumstances justifying withholding the remedy. His Honour found at [152] that the delay of the prosecutor in that case was not unwarrantable, but had been explained “as resulting from a combination of the dilatoriness of the lawyers and the delay by the Minister in determining whether to exercise a power to reconsider the visa application”. It was also pointed out that there was no “more convenient and satisfactory remedy” and that there had been no bad faith on the part of the prosecutor consistent with the principles considered in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. (Also see Kirby J at [215] – [222] in Miah).
Finally, I note that in SAAPv Minister for Immigration & Multicultural & Indigenous Affairs, while McHugh J did refer to discretionary relief being refused if the conduct of the party was inconsistent with the application for relief (at [80]), this statement was made in the context of rejection of a contention that where the breach was a failure to observe fair decision-making procedures, the bearing of the breach on the decision should determine whether the constitutional writs should be granted. (See [80] – [84]). However in that case there was otherwise nothing to suggest that the conduct of the appellants warranted refusing to exercise the discretion, there being no suggestion of delay, waiver, acquiescence or unclean hands (ibid at [84)).
Turning then to the particular circumstances of this case, first this is not a case in which no explanation has been provided by the applicant for the delay, albeit the explanation was provided when the opportunity was given to the applicant by the Court. However the applicant being self-represented this seemed an appropriate way to proceed, particularly bearing in mind what was said by Jacobson J in SZGZW.
The issue is whether, despite the explanation provided by the applicant, (which was in essence that he was waiting to hear from his solicitor) the delay is nonetheless “unwarrantable” or otherwise such as in all the circumstances to justify withholding relief where there has been jurisdictional error on the part of the Tribunal.
I am not persuaded that I should reject the truthfulness of the applicant’s explanation and find that it was not credible based on the assumption that was urged upon me by counsel for the respondent as to the efficiency of solicitors’ offices and/or the contention that a person in the position of the applicant would follow up more actively to regularise his visa status. It is relevant that Adrian Joel was acting for the applicant from 1997 on. Mr Joel acted as migration agent for the applicant in connection with his protection visa application and his application to the Tribunal. This is not a case in which the applicant merely had the assistance of Adrian Joel & Co. in connection with participation in a class action.
In these circumstances the applicant’s explanation about his dealings with Adrian Joel’s office (in relation to which he discussed the staff and circumstances of that office with some apparent familiarity) is consistent with his explanation that he relied on and trusted his long-standing solicitor and was waiting to hear from him. The “efficiency” of the solicitors for the applicant is not the issue. On the evidence before me I am not persuaded that I should reject as untruthful the applicant’s claim that he had not received a letter from his solicitor.
The fact that the applicant could have been more active in pursuing resolution of his migration status or chasing up his solicitor is not such as to satisfy me that relief should be withheld where a jurisdictional error has been established. This is not a case in which a more convenient or satisfactory remedy exists or where no useful result could ensue if the remedy is provided. Nor is there any suggestion of bad faith on the part of the applicant in either his dealings with the Tribunal or towards the Court. I do not consider that the circumstances explained by the applicant are such to suggest that he abandoned his efforts to obtain residence in Australia or acquiesced or waived his right to pursue a remedy by waiting to hear from Mr Joel or that it can be said that he did not come to the Court with due diligence. (See Lord Denning MR in F Hoffman – Laroche and Co AG v Secretary of State for Trade and Industry (1975) AC 295 at 320 affirmed by the House of Lords at 1975 AC 329 and discussed by Gaudron and Gummow JJ in Aala at [57] – [62].
The circumstances of this applicant are not analogous with those considered by Federal Magistrate Smith in SZHFW. In contrast, in this case after the Tribunal decision the applicant not only applied to the Minister to substitute a more favourable decision but also participated in a class action. He was represented by Adrian Joel & Co in all proceedings in relation to his migration status. While the period of time from June 2003 (when his participation in the Muin and Lie class action came to an end) to 22 September 2005 is a significant period of time, it must be seen in light of the fact that the applicant’s participation in the class action extended from 10 September 1998 to 20 June 2003. His subsequent inaction in chasing up his solicitor for confirmation of his position should be seen in the context of litigation which continued for such a lengthy period. Moreover this is not a case in which an applicant failed to seek any advice in the manner considered by Federal Magistrate Smith in SZHFW (see [47] – [48]).
I do not consider it appropriate to engage in a consideration of whether the applicant has prospects of success in relation to his application for a protection visa. That is a matter for the Refugee Review Tribunal.

As Kirby J stated in Miah at [221] – [222] a conclusion that discretionary considerations favoured relief:
expresses no view about the merits of the prosecutor’s claims … the constitutional writs are not a means to obtain review on the merits … the issue of the constitutional writ, and the writ of certiorari to make it effective, will not ensure that the prosecutor’s claims ultimately succeeds. But it will ensure that it is determined by a delegate as the law of Australia requires.
Similarly in this case the purpose of the remedy sought by the applicant is to ensure that his claim is dealt with by the Tribunal as the law requires. The failure to comply with s.425 was, as in SAAP per McHugh J at [77] “a failure to comply with a statutory obligation to accord procedural fairness” which “goes to the heart of the decision-making process.” (Also see M162 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1146 per Goldberg J suggesting that it is however relevant to bear in mind what might happen to an applicant who claims to fear persecution if he returns home.)
In all the circumstances I am not satisfied that the delay or other conduct of the applicant is inconsistent with the application for relief or that it otherwise warrants a refusal of relief. The application should be remitted to the Tribunal for redetermination according to law.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 11 September 2006