SZHJR v Minister for Immigration
[2005] FMCA 1937
•19 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHJR v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1937 |
| MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of Indonesia – Chinese ethnicity – race – persecution – State protection. PRACTICE & PROCEDURE – Objection to Competency – privative clause decision – where application filed more than 28 days after the applicant was notified of the decision – where applicant notified on 2 March 1998 but application not filed until 18 October 2005 – delay – discretion whether to refuse relief because of delay – certiorari – mandamus. |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.474, 477(1A)
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565
S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
| Applicant: | SZHJR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 2999 of 2005 |
| Delivered on: | 19 December 2005 |
| Delivered at: | Sydney |
| Hearing date: | 19 December 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | 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 in the sum of $3,800.00.
I allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2999 of 2005
| SZHJR |
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 that was made on 2 March 1998. The Tribunal forwarded a copy of the decision to the applicant under cover of a letter dated that same day.
The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa to the Applicant.
Background
The Applicant is a citizen of Indonesia who arrived in Australia as a visitor in March 1997. On 16 April 1997 he applied for a protection visa. A delegate of the Minister refused the Applicant's application on 8 May 1997.
On 11 May 1997 the Applicant lodged an application for review by the Refugee Review Tribunal claiming that the delegate seemed to ignore and reject his case straightaway without giving him enough time to lodge his supplementary documents as evidence.
The Tribunal wrote to the Applicant on 9 January 1998 inviting him to attend a hearing on 9 February 1998. The Applicant attended the hearing and gave oral evidence with the assistance of an Indonesian interpreter.
The Applicant told the Tribunal that he had suffered discrimination as a person of Chinese ethnicity both from the government and from Indonesian people. He told the Tribunal that the Indonesian government was not able or well-equipped to protect the ethnic Chinese community. He described incidents of anti-Chinese rioting in West Java and Medan. He also told the Tribunal about being badly treated by a policeman in a racist incident.
The Tribunal’s decision
The Tribunal accepted that the Applicant was essentially a truthful witness, but did not accept his interpretation of events which the Tribunal considered was “coloured by subjective assumptions for which there is no objective evidence.” (See at p.56 of the Court Book) The Tribunal did accept that sporadic outbreaks of communal violence were a feature of Indonesian life and homes and businesses owned by the ethnic Chinese community have often been the targets of this violence.
However, the Tribunal did not consider that the actions of a mob in these types of situations could be regarded as forming part of a systematic course of conduct directed at the ethnic Chinese community and thereby falling within the concept of persecution for the purposes of the Refugees Convention. The Tribunal referred to the decision of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
Referring to independent country information the Tribunal took the view that the Indonesian government neither encourages nor condones those outbreaks of rioting. The Tribunal noted that the test in this context is not whether the Indonesian government prevents all of those riots but whether it can be demonstrated that the government is taking reasonable and effective steps to address the problem.
The Tribunal found that there was nothing in the evidence to suggest that the Applicant faced discrimination in education in Indonesia which would amount to persecution for the purposes of the Convention. Whilst the Applicant had not at that stage attempted the job market in Indonesia, the Tribunal considered that there was nothing in the evidence to suggest that if he were to return to Indonesia at that time or in the foreseeable future he would experience discrimination in employment by reason of his Chinese ethnicity.
The Tribunal concluded that the Applicant did not have a well-founded fear of persecution by reason of his membership of the Chinese ethnic community if he were to return to Indonesia at that time or in the foreseeable future. The Tribunal also noted that the Applicant had stated that he had not experienced any particular difficulty in practising his religion and there was nothing in the evidence to suggest, nor was it submitted, that the Applicant feared persecution by reason of his nationality or political opinion or his membership of any particular social group.
The Tribunal affirmed the decision not to grant the Applicant a protection visa.
The application for review
The Applicant filed an application for review of the Tribunal's decision on 18 October 2005, over seven years after the decision was made. At that stage he was an inmate at the Immigration Detention centre at Villawood, New South Wales. In the application he states that he was only notified of the decision the day before. The Applicant told the Court, however, that he had been aware of the decision since shortly after it had been made.
The Applicant seeks a writ of certiorari to quash the Tribunal's decision and a writ of mandamus which the Applicant believes will have the effect of waiving the time limit under s.477 of the Migration Act in order to commence proceedings. The grounds that he gives are that:
The Tribunal constructively failed to exercise its jurisdiction and to afford the applicant natural justice in circumstances where the Tribunal applied the incorrect test to persecution for Convention purposes.
The Applicant told the Court that he had been in Immigration Detention since 5:30pm on 11 May 2005. The Applicant when asked about the delay in commencing these proceedings said:
When I received the RRT decision they told me I had to go back to Indonesia, but there was at the time a riot happening.
The Applicant said that no-one from the Department of Immigration and Multicultural and Indigenous Affairs or from the Refugee Review Tribunal explained anything about getting a lawyer or getting legal aid. He was trying to register himself with a migration agent but found that the agent was lying to him and lost confidence in the migration agent. The Applicant did not leave Australia or return to Indonesia. He remained living in the community until 11 May 2005 when he was apprehended at his employment in the Sydney suburb of Bondi. Up to that time no-one from the Department had made any inquiries from his about renewing his visa.
The Applicant explained that when he went into detention he asked the Minister to make a decision and substitute a more favourable decision than the one that the Refugee Review Tribunal had made under s.417 of the Migration Act. The Minister did not make such a decision. The Applicant also told the Court that he took objection to a number of the findings made by the Tribunal and reiterated that his case came within the terms of the matters set out in the Refugees Convention.
Delay
What is remarkable about this case is the length of the delay between the handing down of the decision in March 1998 and the commencement of the proceedings in October 2005, a gap of over seven and a half years.
The Court has a discretion to dismiss an application for a Constitutional writ in cases where there has been an unwarrantable delay. This discretion can be exercised against an applicant without determining whether there has been any jurisdictional error. (See R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565 at 568-570. See also S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 283).
Unwarrantable delay justifies the withholding of relief. A delay of more than a year should ordinarily lead to relief being refused in the exercise of the Court's discretion. (See Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495-496) In this case there has been a greater delay since the delay in Marks' case and a longer delay than the four years and 11 months in S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs. When the Applicant was notified that his application before the Refugee Review Tribunal was unsuccessful he elected not to take any proceedings but continued in his normal life. Had he not been apprehended by immigration officers in March of this year it is unlikely that he would have commenced the proceedings when he did.
Even when he was taken into detention in May the applicant did not commence these proceedings until 18 October. The reason for that is that he was seeking a decision from the Minister under s.417 of the Migration Act. He was unsuccessful in that regard and so he commenced these proceedings.
It is well-established that seeking a more favourable decision from the Minister does not constitute an excuse for delay in commencing proceedings in the Court. In any event, the delay between notification of the decision in March 1998 and being taken into detention in May 2005 is not subject to any excuse whatsoever. The Applicant elected to take no proceedings whatsoever and of course his visa expired. He remained in Australia as an unlawful non-citizen. The extraordinary length of delay is of itself a reason for the Court to decline to exercise its discretion and grant relief.
In any event, the Applicant has not shown any jurisdictional error in the Refugee Review Tribunal decision. His submissions today have been directed at little more than overview of the merits of the Tribunal's decision. I have not been able to discern any jurisdictional error on my independent reading of the decision of the Tribunal.
The decision of the Tribunal appears to me to be a privative clause under s.474 of the Migration Act.
The Respondent has also filed a Notice of Objection to Competency on the basis that the Applicant's application has been filed outside the 28‑day period set out in sub.s477(1A) of the Migration Act. The Respondent's submissions do not address the Notice of Objection to Competency and in my view it is unnecessary for me to make a competency finding. The enormous delay unaccompanied by any reasonable explanation is more than sufficient to justify the Court in refusing to exercise its discretion to grant relief to the applicant. In any event, I am satisfied that the Tribunal decision is a privative clause decision that attracts the protection of s.474 of the Migration Act.
It is my intention to make final orders today dismissing the application. As a finding that the application is not competent under Notice of Objection to Competency is an interlocutory finding, I do not propose to make that finding. In my view, it would be both unnecessary and confusing. Having satisfied myself that no jurisdictional error exists and having also satisfied myself that it is inappropriate to exercise the Court's discretion to grant relief after such a lengthy delay, I intend to make an order on a final basis dismissing the application. The application is dismissed.
There is an application for costs on behalf of the Respondent Minister. The application for judicial review has been unsuccessful and to my view the Minister being the successful party is entitled to an order for costs in her favour. The amount sought for costs on a party-party basis is $3,800.00. The Applicant says that he is not working as he has been in Immigration Detention since May of this year. Consequently, he does not have the funds to meet that costs order. Whilst that is not a ground for not making an order for costs, it is a ground for considering time to pay. For this reason I order that the Applicant is to pay the Respondent's costs in the sum of $3,800.00 and I allow four months to pay. I require a transcript of my reasons for this decision and the application will be removed from the list of cases awaiting finalisation.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 22 December 2005
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