SZHGT v Minister for Immigration - [2006] FMCA 263

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHGT v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 263

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 China – delay – where decision handed down on 31 October 1997 but application to court not filed until 5 October 2005 – no satisfactory explanation for delay – even if jurisdictional error could be established relief should be refused on discretionary grounds because of the unconscionable delay – credibility – where Tribunal not satisfied about the credibility of the Applicant’s evidence – Tribunal is not required to specify grounds for refusing a visa – if Tribunal not satisfied that the criteria for the grant of a visa have been met the Tribunal is obliged to refuse to grant the visa – Migration Act 1958 (Cth) s.65 applied – no jurisdictional error.

PRACTICE & PROCEDURE – Competency – objection to competency.

COURTS & JUDGES – Federal Magistrates Court – Federal Magistrates not to be referred to as ‘magistrates’.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.65, 424, 477, 483A
Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001 (Cth)
Federal Magistrates Act 1999 (Cth) s.8
Acts Interpretation Act 1901 (Cth) s.16C
Marriage Act 1961 (Cth) s.5

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 followed.
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132
The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
SZGAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1785 followed.
SZGAP v Minister for Immigration [2005] FMCA 892 referred to.
SZECK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 283 referred to.
SZBDN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 656 referred to.
SZAQL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 656 discussed.
SZAQL v Minister for Immigration [2005] FMCA 240 referred to.
SZGDC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1834 not followed.
SZGDC v Minister for Immigration [2005] FMCA 1274 referred to.

Applicant:

SZHGT

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG 2844 of 2005

Delivered on:

28 February 2006

Delivered at:

Sydney

Hearing date:

21 December 2005

Judgment of:

Scarlett FM

REPRESENTATION

The Applicant:

In person in Immigration Detention

Counsel for the Respondent:

Mr Kennett

Solicitors for the Respondent:

Blake Dawson Waldron

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 $6,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2844 of 2005

SZHGT

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, which was made on 30 October 1997, affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa to the Applicant.
The Tribunal forwarded a copy of this decision to the Applicant under cover of a letter dated 31 October 1997.

Background

The Applicant is a citizen of the People’s Republic of China. He arrived in Australia on 29 September 1996. He applied for a protection visa on 4 February 1997, but this was refused on 9 April 1997. On

5 May that year he applied to the Refugee Review Tribunal for a review of that decision. The Applicant attended a hearing of the Tribunal by video-link, for some reason that is not explained, and gave evidence with the assistance of a Mandarin interpreter.
The Applicant made written and oral submissions to the Tribunal. He claimed to be a dissident of the Chinese Communist Party who had been involved with the democratic movement in Beijing. He also claimed to have joined the Shanghai Workers’ Autonomous Association (SWAA) in May 1989 and to have actively supported its aims and principles.
The Applicant claimed to have been suspended from work for three weeks after the suppression of the pro-democracy movement and was then transferred to cleaning tasks. In August 1989 he was dismissed from his employment.
As well as his political involvement, the Applicant claimed to have a well-founded fear of persecution for two other reasons:
a)His opposition to the one-child policy, brought about by his wish to father a second child; and
b)His secret homosexuality, which he disavowed at the Tribunal hearing.

The Tribunal’s findings and reasons

The Tribunal Member expressed “serious doubts” about the Applicant’s claims at page 86 of the Court Book. The Tribunal discounted his claims about the time of his dismissal from his employment, and found his evidence about his participation in the pro-democracy movement. The Tribunal doubted whether the Applicant had ever been a member of the Shanghai Workers’ Federation, as he claimed.
The Tribunal was not satisfied that the Applicant had a political profile of any interest to the authorities in China. The Tribunal did accept that the Applicant may have objected to the one-child policy in China and found that he gave “convincing” evidence of his wife being forced to undergo a termination of pregnancy at seven months. Whilst the Tribunal accepted this as persecution, it did not find that such persecution came under the Refugees Convention.
The Tribunal did not accept any claim of homosexuality by the Applicant, finding such claim to be “contrived” (see page 89 of the Court Book). In any event, the Tribunal noted that this claim was not one that the Applicant had made himself.
The Tribunal found nothing in the Applicant’s account of his background that warranted a finding that he needed the protection of Australia for Convention reasons. It is clear that the Tribunal found most of the Applicant’s claims not to be credible.

The application for judicial review

Although the Applicant was notified of the Tribunal decision by letter dated 31 October 1997, he did not commence proceedings until

5 October 2005. He had been taken into Immigration detention on

20 August 2005. The only explanation that the Applicant could give for this lengthy delay was that he had left his address in Melbourne and gone to Sydney in May 1997 and did not receive any letter advising him of the decision. He told the court that he did not make any inquiry from his migration adviser until late 1999 or early 2000, when he rang the adviser’s office and did not receive any answer.
I do not regard the Applicant’s explanation of the delay as at all satisfactory.
In his Application, the Applicant claimed three grounds:
a)That if he were to return to China, he would be at risk of suffering persecution;
b)The Tribunal failed to understand his claim and failed to consider “relevant matters”; and
c)The Tribunal refused to grant his application for a visa without any proper grounds or investigation.
At the hearing, the Applicant added these grounds:
a)He was a Falun Gong practitioner, having commenced the practice of Falun Gong in April or May 2005;
c)His wife had written to him in early December 2005, saying that she was suspected of having practiced Falun Gong; and
d)The Tribunal hearing was not fair because the Tribunal Member did not ask the questions that she was required to ask. The Applicant did not say what they were.

Delay

Although the Tribunal published its decision on 31 October 1997, the Applicant did not commence proceedings until 5 October 2005, almost eight years later. The delay has not been satisfactorily explained. There is no evidence that the Applicant has ever previously sought judicial review of the Tribunal’s decision, including joining any class action. It was put to me at the hearing, and not denied by the Applicant, that he had made an application for the exercise of Ministerial discretion under s.417 of the Migration Act 1958, but this application was refused on 21^st July 1998. It appears that the Applicant did nothing between that date and the date when he filed his application on 5 October 2005.
It is well-established that a lengthy, unexplained delay would justify the refusal of relief in the exercise of the Court’s discretion (see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 89, 105-109, 108, 136-137; Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132 at [4]-[8]; The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389). A delay of more than a year should ordinarily lead to relief being refused in the exercise of the court’s discretion (Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495-496).
In my view, an unsatisfactorily explained delay of nearly eight years would clearly justify the refusal of relief in the exercise of the Court’s discretion, even if there appeared to be a jurisdictional error.

No jurisdictional error

There is no jurisdictional error that I can discern. The first of the three grounds in the application merely recites the Applicant’s claim to refugee status. If it is anything, it is no more than a request for merits review, which is not a matter for the Court.
There is no evidence that the Tribunal Member failed to understand the Applicant’s claim, as he sets out in his second ground. It is clear from reading the decisions as a whole that the Tribunal considered all aspects of the claim, but was not satisfied of the Applicant’s credibility. Where the Tribunal was satisfied about the credibility of the Applicant, namely his opposition to the one-child policy in China, the Tribunal was not satisfied that this constituted persecution for a Convention reason. A finding on credibility is the function of the primary decision-maker. If the primary decision-maker makes a finding that a witness was not believed, no reasons need be given (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 at [67]).
The Applicant’s third ground alleges that the Tribunal refused to grant his protection visa application without any proper grounds or any proper investigation. This ground must also fail. It is a misconception that the Tribunal must provide “proper grounds” for refusing a visa application. Section 65 of the Migration Act makes it clear that if, after considering a valid application for a visa, the Minister (or Tribunal) is satisfied that the criteria for the visa have been satisfied then the Minister is to grant the visa. However, if the Minister is “not so satisfied”, then the Minister must refuse to grant the visa (s.65(1)(b)). In this case, the Tribunal was not satisfied that the criteria had been met, so the Tribunal was obliged to refuse to grant the visa.
Similarly, the Tribunal is not required to conduct its own investigation of an applicant’s claims. Section 424 of the Migration Act gives the Tribunal power to get any information that it considers relevant when conducting the review (s.424(1)), but does not impose any obligation on the Tribunal to make its own investigation.
The grounds raised by the Applicant at the hearing do not assist him in any way. There was no claim before the Tribunal that the Applicant was a Falun Gong practitioner, and there could hardly have been any, as the Applicant told the Court that he had only taken up the practice of Falun Gong in April or May 2005. The Tribunal could not have been expected to foresee that eventuality at a hearing in 1997.
The Applicant also told the Court that he just wanted the Tribunal to reassess his application. He said that the first hearing was “very ambiguous”, but I am unable to ascertain what in fact he meant by that. The phrase may have been “lost in translation”.
There is no right to a re-hearing by the Tribunal. The Court may, in its discretion, grant relief by way of a constitutional writ, but has no jurisdiction to do so unless the decision was affected by jurisdictional error.
The Applicant also claimed that the Tribunal was not fair, because the Tribunal Member did not ask what she was required to ask. He provided no details of that claim, nor did he provide any evidence by way of a transcript to show what had gone on at the hearing. There is no evidence of any procedural unfairness in the Tribunal hearing.
I have conducted my own independent investigation of the Tribunal decision, as I am aware that the Applicant is not legally represented. Neither the Applicant’s submissions nor my own investigation show any reviewable error.
There is no jurisdictional error that I am able to discern.

Jurisdiction

Counsel for the Respondent Minister submitted that it was necessary to consider whether the Court has jurisdiction in the matter. Although no Notice of Objection to Competency has been filed, he submitted that jurisdiction must be considered irrespective of whether a Notice of Objection to Competency has been filed or not.
In SZGAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1785, an application for leave to appeal from a decision of mine made on 22^nd June 2005 (SZGAP v Minister for Immigration [2005] FMCA 892), Lindgren J considered whether a decision that an application was dismissed and that the application was not competent as the Court had no jurisdiction was an interlocutory decision or a final decision.
In that case, the application for judicial review was filed on 6 April 2005. The 28 day period for filing an application in the Federal Magistrates Court provided by s.477 (1A) of the Migration Act, as it stood at the time, had expired on 13 August 1999, so the application was out of time by about four years and eight months. The Minister filed a Notice of Objection to Competency.
In SZGAP v Minister for Immigration I was satisfied that the Tribunal’s decision was not infected by jurisdictional error and therefore concluded that the decision was a privative clause decision to which the 28 day time limit in s.477(1A) applied and that the Court did not have jurisdiction to hear the application. In SZGAP v Minister for Immigration & Multicultural & Indigenous Affairs Lindgren J pointed out that the better view is that subsection(1) rather than subsection (1A) that applied in the circumstances. His Honour stated at [15]:
In my opinion it is s.477(1A) which applies here, even though the application was made to the FMCA. Subsection (1A) of s.477 can apply sensibly only where the Tribunal’s decision was made after 2 October 2001, that it to say, after jurisdiction was conferred on the FMCA. Prior to that date this Court had jurisdiction in respect of Tribunal decisions, albeit under the former Part 8 of the Act and not under s.39B of the Judiciary Act. Where the Tribunal’s decision was made prior to that date, such as on 16 July 1999 as in the present case, there was already a non-extendable 28-day time constraint on applications to this Court for review under the then Part 8: see the then s.478 of the Act. The new s.483A picks up this Court’s jurisdiction, including the non-extendable 28-day time limit burdening it by reason of s.477(1) and (2) of the Act.
Lindgren J stated at [31] that it is uncertain whether a Federal Magistrate’s dismissal of an application for review as incompetent on the basis of that Federal Magistrate’s conclusion, reached on the merits, that the decision under review is not affected by jurisdictional error, is interlocutory or final.
His Honour then considered several other decisions, including SZECK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 283 where Madgwick J concluded that a decision of a Federal Magistrate that a Tribunal decision is a privative clause decision, and that an application for review of it outside the time limit imposed by s.477(1A) of the act is therefore incompetent, is interlocutory. Hely J in SZBDN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 656 considered that he should follow Madgwick J in SZECK, although had this to say at [17]:
However, given the decision in Plaintiff S157/2002 [Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476], I am unable to perceive what practical benefit is achieved by the filing of a Notice of Objection to Competency if the substantial merits of the appeal have to be determined in order to determine the objection as to competency.
Lindgren J respectfully adopted those remarks in SZGAP at [1], going on to say:
The taking of the objection as to competency seems to have served only the undesirable purpose of generating futile disputation over the question of whether the upholding of the objection and consequential dismissal of the proceeding in a particular case is a final or interlocutory decision for the purpose of appeal to this Court.
With respect, I also adopt those remarks. Also with respect, it seems to me to be extraordinary for counsel for the Minister to submit that the Court should go through this cart-before-the horse exercise whether or not a Notice of Objection to Competency has even been filed. I am unable to ascertain what purpose is to be achieved by a court hearing an application on its merits in order to decide whether it has the jurisdiction to hear the application at all.
In SZAQL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 759, Branson J considered an appeal from a decision of mine delivered on 23 February 2005 (SZAQL v Minister for Immigration [2005] FMCA 240). This was also a case where the application to the Court was well outside the 28-day time limit prescribed by s.477(1A), and the Respondent filed a Notice of Objection to Competency. As Lindgren J described the decision in SZGAP at 66, in order to know whether the time limit applied, it was necessary to know whether jurisdictional error infected the Tribunal’s decision. In that case. Also, I reviewed the Tribunal’s decision and concluded that the application was ‘a privative clause matter (at [41]) and ordered that the application be dismissed and that the application was incompetent.
Before Branson J, the Respondent Minister did not contend that the decision was interlocutory and her Honour thought that the decision was final. As Lindgren J points out at [67], her Honour’s analysis of the issue is in the nature of obiter dicta.
In SZGAP at [69], Lindgren J stated that he was not required to resolve the issue of whether the order was final or interlocutory, but went on to say:
However, I note my view that where the Federal Magistrate’s dismissal is based on nothing other than the limitation period provided for in s.477, and that a decision ‘on the merits’ and against the contention of the applicant that the Tribunal’s decision was free from jurisdictional error and was therefore a privative clause decision, is necessary to the running of the limitation period and dismissal for incompetence, there is much to be said for the view that the order of dismissal is final.
With respect, I agree. There does not appear to be any purpose in hearing an application on its merits only to decide that the application is incompetent and the decision is interlocutory rather than final. It is in the best interest of the State that litigation should be final.

Counsel for the Respondent Minister also referred me to the decision on SZGDC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1834, an appeal from one of my decisions (SZGDC v Minister for Immigration [2005] FMCA 1274). In that case, the Minister did not file a Notice of Objection to Competency, even though the Tribunal sent a copy of the decision to the applicant on 18 May 1998 but he did not file an application for review until 19 April 2005. I considered the application on its merits and, after finding that the Tribunal’s decision was unaffected by jurisdictional error, dismissed the application.
On appeal, Edmonds J dismissed the appeal but varied the orders to dismiss the applicant for want of jurisdiction. At [9] his Honour held that sub-section 477(1A) applies to an application to the Federal Magistrates Court in respect of a decision by the Tribunal whenever the decision is made. As there was no jurisdictional error in the Tribunal’s decision, his Honour said:
It follows that the Federal Magistrates Court did not have, and never had, jurisdiction in relation to the decision of the Tribunal.
With respect, it appears to me that the decision in SZGDC does not sit well with the decisions of Branson J in SZAQL or Lindgren J in SZGAP. In my respectful opinion, it is more appropriate to follow those two decisions in this case. I note that neither of those authorities was cited to the Court in SZGDC.
I note that the written submissions made by counsel for the Minister in SZGDC and cited at [6] referred to the Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001 (Cth) by the working title ‘the Magistrates Jurisdiction Act’. The appellant was not legally represented and so it was clearly not made clear to his Honour that the title given by counsel was both misleading and wrong in law.
Leaving aside the fact that the Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001 is a legal historical curiosity, in that it is the only piece of federal legislation that refers to the Federal Magistrates Court by one of its alternative names rather than the primary title set out in s.8(1) of the Federal Magistrates Act 1999 (Cth):
A federal court, to be known as the Federal Magistrates Court, is created by this Act
The working title coined by counsel is misleading and wrong in law because the Act does not refer to the jurisdiction of Magistrates at all, because federal magistrates are not magistrates in federal legislation. Federal Magistrates are Federal Justices (Federal Magistrates Act. Section.8(4)).
The difference between Federal Magistrates and Magistrates appointed under State or Territory legislation is clearly set out in s.16C(2) of the Acts Interpretation Act 1901 (Cth), where a Magistrate is defined as “(a) a Chief, Police, Stipendiary, Resident or Special Magistrate; or (b) any other Magistrate in respect of whose office an annual salary is payable”.
On the other hand, Federal Magistrates are referred to in s. 16C(3):
Unless the contrary intention appears, a reference in an Act to a Magistrate does not include a reference to a Federal Magistrate.
An example of the differentiation appears in s.5 of the Marriage Act 1961 (Cth), where Federal Magistrates are included in the definition of Judge, but magistrate is defined in accordance with s.6C(2) of the Acts Interpretation Act.
It is regrettable that counsel who appear regularly before this Court should not only make such an obvious error but present such erroneous material to the Federal Court on an appeal.

Conclusion

I have considered the application for review on its merits. I have considered the grounds raised by the Applicant both in his application and orally in the hearing. I am satisfied that none of the grounds indicates any reviewable error on the part of the Tribunal.
I have made my own independent investigation of the Tribunal decision and I have found no reviewable error. I am satisfied that the decision is untainted by jurisdictional error and is therefore a privative clause decision as defined by s.474(2). The decision is therefore:
a)final and conclusive; and
b)must not be challenged, appealed against, reviewed, quashed or called in question in this or any court; and
c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in this or any court on any account (s.474(1)).
It is certainly my intention that my decision should be final rather than interlocutory, for the reasons set out in the preceding two paragraphs. The question of competency has been raised by counsel for the Minister, even though a Notice of Objection to Competency has not been filed. I might add that the lengthy and unconscionable delay by the Applicant in bringing these proceedings, without any satisfactory application, would cause me to decline to grant relief even if I were of the view that the Tribunal’s decision were tainted by jurisdictional error.
In any event, there is no jurisdictional error, and the application will be dismissed with costs.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: Virginia Lee

Date: 27 February 2006