SZHFV v Minister for Immigration
[2006] FMCA 151
•24 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHFV v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 151 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of the People’s Republic of China. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.48B, 417, 477(1), 477(1A) Federal Magistrates Court Rules 2001 |
| NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF/2003 [2005] FCAFC 73 Ngu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 21 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 215 |
| Applicant: | SZHFV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2776 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 January 2006 |
| Date of Last Submission: | 24 January 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 January 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Ms Quinn Phillips Fox |
ORDERS
The application is not competent.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2776 of 2005
| SZHFV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS 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 14th September 1998 and a copy was posted to the applicant's address that same day. The Tribunal affirmed the decision of a delegate of the minister for Immigration and Multicultural and Indigenous Affairs not to grant a protection visa to the applicant.
The applicant is a citizen of the People's Republic of China who arrived in Australia on 4th May 1997. On the 20th of that month he lodged an application for a protection visa. A delegate of the minister refused his application on 8th July 1997 so on 8th August 1997 the applicant applied to the Refugee Review Tribunal for review of that decision.
The applicant was invited to attend a hearing of the Tribunal on
9th September 1998 but no response was received from either the applicant or his migration adviser. The applicant did not attend the hearing on 9th September 1998 so the Tribunal proceeded to determine the application on the basis of the evidence before the Tribunal without giving the applicant any further opportunity to give evidence before the Tribunal.
The Tribunal had serious doubts about the genuineness of the applicant's claims noting that his original written submission was identical to that of another applicant and his later written submissions were very similar to those of that other applicant. The Tribunal formed the view that the applicant had not claimed anything more than low level harassment by the police. The Tribunal also expressed scepticism about the circumstances of the applicant's dismissal from his job and noted that the applicant by not attending had not given the Tribunal the opportunity to ask him further questions about the matter.
The Tribunal stated that the applicant had not provided the Tribunal with any further information in support of his claims despite ample opportunity to do so and that a number of relevant questions were left unanswered. The Tribunal was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Refugee Convention.
The applicant filed an application for judicial review under the provisions of s. 39B of the Judiciary Act 1903 on 29th September 2005 and an amended application on 29th November 2005. In his amended application the applicant seeks orders for prerogative relief and relies on the following grounds.
a) Failure to take a relevant consideration into account;
b) Failure to deal with the applicant's sur place claim;
c) Jurisdictional error in circumstances where the Tribunal came to its conclusion about the lack of persecution upon refoulement on an improper and unreasonable basis, in that the tribunal lacked proper evidential support for such conclusion and relied on irrelevant consideration and inappropriate application of the independent country information.
The respondent minister has filed a notice of objection to competency objecting to the jurisdiction of the Court to hear the application as it was filed outside the 28 days of notification as required by
sub-s.477(1A) or 477(1) of the Migration Act 1958. The application was filed more than seven years after the Tribunal made its decision.
The respondent minister submits that even if the Court were to find a jurisdictional error in the decision the application ought to be refused on a discretionary basis because of the unwarrantable delay in applying for a review.
The applicant did not file written submissions but attended the Court and made oral submissions. He explained the delay in commencing Court proceedings by saying at the beginning he did not understand those proceedings. It was until he was taken into the detention centre at Villawood that someone told him that he could apply at the Court.
He explained his failure to attend the hearing of the Refugee Review Tribunal by saying that he had changed his address and his landlord did not forward the letter to him. He found out that his application for review had been refused by the Refugee Review Tribunal about 1999. In that regard, I note that as set out in an affidavit of Therese Mary Quinn filed at the Court on 15th December 2005 the applicant made an application to the minister to exercise the minister's discretion to substitute a more favourable decision in place of the RRT decision on 13th October 1998. That request was refused on 28th June 1999.
The applicant made another request on 8th March 2000 and that request for ministerial intervention was refused on 4th April 2000. The applicant then through a solicitor on 8th June 2002 made a request for the exercise of the minister's power under s.48B of the Migration Act. That request was refused on 8th June 2002.
According to Ms Quinn's affidavit she has been informed that the applicant has not previously been involved in any judicial review in relation to the RRT's decision prior to these decisions.
I asked the applicant to provide further details about the grounds of his application. In respect of his claim of a failure to take a relevant consideration into account the applicant said that he had applied for a protection visa on the ground of his religion and that that was the ground not taken into account.
I note that the Tribunal did consider those matters and referred to them specifically on page 91 and page 92 of the Court book. The Tribunal also referred to evidence provided in support of his claim on pages 93 and 94. It was quite clear that the Tribunal regarded the applicant's claim for persecution on the basis of religion as the primary reason for his application. In my view that claim has been considered so the first ground must fail.
The applicant in his amended application also claimed that the Tribunal had not dealt with a sur place claim. As there is absolutely no evidence of any such claim ever having been made and the application was not able to provide any explanation of that to the Court, it is clear that that ground must fail.
Turning to the third ground which alleges a collection of jurisdictional errors the applicant first says that the Tribunal did not have evidence upon which to make its decision. The reason why the Tribunal did not have evidence is because the applicant did not attend the Tribunal hearing. Under s.65 of the Act the Tribunal must be satisfied that there is evidence to show that the applicant complies with the criteria for the grant of a visa. If there is no evidence then the Tribunal cannot be satisfied.
The Tribunal does not need specific evidence to disallow a claim for a visa. I asked the applicant about his claim that the Tribunal had taken an irrelevant consideration into account. The applicant was not able to answer that question. The applicant's claim that the Tribunal relied inappropriately on independent country information must also fail as the Tribunal's decision showed that it did not rely on any independent country information. All of those grounds must fail.
I have had the opportunity to refer to a written outline of submissions on behalf of the respondent minister. The submission refers to sch. 1 of the Migration Legislation Judicial Review Amending Act 2001. This Act introduced a new pt8 to the Migration Act, although the new pt 8 does not apply in this particular case.
At the time of commencement of sch.1 of the Amending Act the application had not lodged an application for judicial review of the RRT decision and so therefore the Act applies in that matter.
The respondent submits rightly, in my view, that the present case is a privative clause decision as defined by sub-s.474(2) of the Act and sub-s.474(1) provides that:
A privative clause is final and conclusive. It must not be challenged, appealed against, reviewed, quashed or called in question in any Court and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account.
The submission goes that, and rightly in my view, that s.474 validly operates to prevent the judicial review of all such privative clause decisions under the Act except those vitiated by jurisdictional error. Ms Quinn also points out in her submission that at the time of the RRT decision in September 1998, s.424A of the Migration Act had not been enacted.
Turning to the applicant's grounds, the respondent relies on the decisions of SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 215 at [15] and [16]. Also NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] and [5] and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF/2003 [2005] FCAFC 73 in support of the proposition that a legislative regime which required a positive state of satisfaction as to whether protection obligations are owed mandated a refusal decision if that state of satisfaction is not reached. That is clearly the case here.
I would comment that even if I were of the view that there is a jurisdictional error, and I am not, in my view there is an unwarrantable delay in applying for relief. The delay is a delay of over seven years and attempts every two years or so to obtain other relief by writing to the minister seeking a decision under ss.417 or 48B of the Act do not constitute an explanation for delay in commencing these proceedings.
The respondent has filed a notice of objection to competency and I am asked to find that the decision is incompetent as the application has been lodged outside the mandatory time limits in s.417 and a ground of review cannot be made out. In my view, that is correct and I rely on the decision in Ngu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 21.
The decision of the tribunal is a privative clause decision. There is no jurisdictional error. The decision therefore attracts the protection of
s.474 of the Migration Act. The application is clearly out of time, having been lodged over seven years after the decision was notified to the applicant.
I make the following findings:
i)The application is not competent;
ii)The application is dismissed;
iii)I will make an order that the applicant is to pay the 1st respondent's costs.
There is an application for costs. The applicant has been unsuccessful in his claim and there is nothing to indicate that an order for costs should not be made. The amount sought is $3,000.00 which is within the scale envisaged by the Federal Magistrates Court Rules 2001.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM FM
Associate: S. Polley
Date: 6 February 2006