SZHPB v Minister for Immigration & Anor
[2006] FMCA 1880
•21 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHPB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1880 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of People’s Republic of China claiming fear of persecution for reason being a member of the ethnic Korean minority – claim of persecution for reason of political opinion – procedural fairness – no reviewable error. PRACTICE & PROCEDURE – Delay – where decision handed down on |
| Migration Act 1958 (Cth), ss.36, 422B, 424A, 474 |
| R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565 followed Naguit & Anor v Minister for Immigration [2005] FMCA 930 followed S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 followed The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 followed Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 followed Gararth v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 316 followed SZGZW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 457 followed. |
| Applicant: | SZHPB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3333 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 7 December 2006 |
| Date of Last Submission: | 7 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2006 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | Not legally represented |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,200.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3333 of 2005
| SZHPB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL 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 made on 30th October 1997 and handed down that same day. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa.
The Applicant seeks an order setting that decision aside.
Background
The Applicant is a citizen of the People’s Republic of China who arrived in Australia in 1995 and applied for a protection visa on
7th April 1995. A delegate of the Minister refused her application on
5th July 1996, so on 1st August 1996 the Applicant sought a review of that decision by the Refugee Review Tribunal.
RRT review
The application for review showed that the application was represented by a migration adviser, Ms Priscilla Yu of Pricilla International Co. Pty Ltd. The application was accompanied by a statutory declaration by the Applicant, setting the Applicant’s claim that she had been involved in the pro-democracy movement in China in 1989 and was detained and interrogated. The Applicant claimed that in 1990 she was dismissed from the factory where she worked as a result of her previous activities. She opened a restaurant, but was subjected to harassment by Government officers, police and other Communists. Eventually she was forced to close the restaurant.
The Tribunal wrote to the Applicant on 17th September 1997, inviting her to attend a hearing on 22nd October 1997. The Applicant attended the hearing and gave evidence. Through her migration agent, she asked for an interpreter in the Mandarin Chinese language.
The Tribunal Decision is set out on pages 55 to 69 of the Court Book. The Tribunal noted that during the hearing:
The applicant essentially stated that she could not return to China because she did not have the financial resources to earn an income. She stated that in Australia she was able to earn a living irrespective of her political opinions. The applicant explained that in 1990 she was dismissed from her work unit, because she participated in the mass protest movement of 1989, and that due to her political activities in 1989 she no longer has access to government employment…She stated that she preferred to remain in Australia where she could earn an income and not have to worry about the authorities. The applicant was asked if she has been involved in any political activities against the PRC government since 1989. She responded that she had not been involved in any such activities.[1]
[1] Court Book at 59
The Tribunal discussed with the Applicant information from external sources, including a report from the Department of Foreign Affairs and Trade dated 28th September 1994 about the treatment of political activists, and a number of other reports. The Tribunal discussed with the Applicant information from external sources that indicated that corruption was a widespread problem in China, and suggested to her that the difficulties she experienced with the authorities after 1990, when she established her business, were due to corruption rather than discrimination because of her individual political opinion.[2]
[2] Court Book at 61
The Tribunal also had this to say about the Applicant’s ethnicity:
The applicant did not indicate at the hearing that her ethnicity was a matter relevant to her application. However, as the applicant had raised this matter when she initially applied for a protection visa, the Tribunal considered information from external sources dealing with the circumstances of the ethnic Korean population in China.[3]
[3] Court Book at 63
The Tribunal then set out a summary of reports relating to the ethnic minority population in China. The information noted that ethnic Koreans in China are in a better social and economic position compared to other ethnic minorities.
The Tribunal’s consideration of the Applicant’s claims (i.e. the findings and reasons) is set out on pages 66 to 69 of the Court Book. The Tribunal first of all noted the Applicant’s claim that she had a political opinion against the PRC government, but found that she had not sought to express or promote any political opinion of that type for a considerable period of time. The Tribunal did not find evidence to indicate that the Applicant had strong political convictions against the Chinese government or that she intended to express her political beliefs when she returned to China. The Tribunal found that, as the Applicant was not a political activist, there was no real chance that she would suffer persecution due to her previous political activities or opinion.
Second, the Tribunal considered the Applicant’s claim that she would be at risk of persecution by the authorities in China because she had applied for refugee status in Australia. The Tribunal rejected that claim, on the grounds that there was no evidence that the PRC authorities would know that she had applied for refugee status in Australia. The Tribunal also noted information from external sources that indicated that even if the authorities suspected that a Chinese citizen had applied for refugee status while overseas,
That citizen may be reprimanded or even briefly detained and questioned about the application, but they are not commonly subjected to persecution solely for that reason.[4]
[4] Court Book at 67
The Tribunal also considered the Applicant’s claim that due to her political activities she was discriminated against in terms of employment and that she would be denied government employment in the future. After considering the Applicant’s own circumstances regarding employment and information from external sources regarding the changing employment opportunities in China, the Tribunal decided that the Applicant would not be prevented from earning an income for a Convention related reason.[5]
[5] Court Book at 68
The Tribunal went to consider the Applicant’s claim that she suffered extortion from the authorities after she established her business in 1990 and that her business failed because of that extortion. The Tribunal decided that corruption is a widespread problem for all Chinese irrespective of their political opinion and went on to find that neither the claims made by the Applicant not information from external sources indicated that the Applicant would be at risk of suffering extortion in China for a Convention reason.[6]
[6] Court Book at 68
The Tribunal concluded that there was no real chance that the Applicant would be subjected to persecution by the Chinese authorities due to her political opinion or the political opinion attributed to her because she supported the 1989 mass protest movement.
Finally, the Tribunal considered the Applicant’s initial claim that she would be at risk of suffering persecution in China due to her Korean ethnicity. The Tribunal considered information from external sources[7] and decided that:
a)Ethnic Koreans were no longer an ethnic minority group commonly subjected to persecution by the PRC government.
b)The Applicant would be able to return to a province in China which had a large ethnic Korean population and where Korean culture and customs were maintained.[8]
[7] Court Book at 63
[8] Court Book at 69
The Tribunal concluded that within that environment there was no real chance that the Applicant would be subjected to persecution due to her race.
The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol and therefore did not satisfy the criterion set in s.36(2) of the Migration Act for the grant of a protection visa. The Tribunal affirmed the decision not to grant a protection visa.
Application for judicial review
The Applicant commenced proceedings in this Court by filing an application on 15th November 2005. At that time, she was being held in the Immigration Detention Centre at Villawood, New South Wales.
The Applicant filed an amended application on 16th March 2006. By this time, she had been released from Immigration Detention and was living in a Sydney suburb. The amended application seeks orders in the nature of certiorari, mandamus and prohibition.
The grounds of the application are:
The second respondent denied the applicant procedural fairness in that it acted on the basis of adverse country information but it failed to provide the applicant with the opportunity to comment on it. The second respondent thereby committed jurisdictional error of law.
Particulars
The second respondent referred briefly, both at the tribunal hearing and in its reasons for decision, to extensive and detailed country information that was apparently adverse to the applicant’s claims. But the second respondent failed to provide copies of any such information to the applicant, did not discuss fully with the applicant all relevant particulars of such adverse information, and failed to disclose or discuss at all with the applicant some adverse country information on which it relied in making its decision.
Submissions and Evidence
The Applicant did not file any written submissions. The solicitors for the First Respondent, the Minister, filed submissions in which they argued against the contentions in the original application. It transpired that the solicitors for the Minister had not been served with a copy of the amended application, which had been filed on 16th March 2006.
Counsel for the Minister submitted that even if there were jurisdictional error in the Tribunal’s decision, the application ought to be dismissed on the basis of the Applicant’s significant delay in bringing the proceedings. The Tribunal made its decision on
30th October 1997 and wrote to the Applicant on that day enclosing a copy of that decision in a letter addressed to her at the last address for service given by her in connection with the review (a Post Office Box in Haymarket, NSW). These proceedings were commenced on
15th November 2005, a delay of over eight years from the date of decision. He submitted that there was no explanation for the period of delay, which was unwarranted in the circumstances.
The Applicant gave oral evidence with the assistance of a Korean interpreter. She advised the Court that she had changed her address, and gave the Court the address that appeared on her amended application.
The Applicant, when asked by the Court why she had not filed any application until 15th November 2005, said that after she was rejected for a protection visa she applied for a permanent resident visa. She said that she had been to Court for a permanent resident visa and had paid $1,500.00 for that hearing. She said the money was refunded to her. She could not remember when this was, but said it was two or more years ago. At the time she applied for a permanent resident visa so that she had a proper visa, she said was not interested in a protection visa. Her husband had returned to Korea.
In cross-examination by Mr Smith, counsel for the Minister, the Applicant said that she had arrived in Australia in January 1995 on a Business visa. She was shown a copy of application for a protection visa which she made on 7th April 1995. She was shown the page with what appeared to be her signature on it[9] and said that “maybe” it was her signature but her migration agent had filled out her application for her.
[9] At page 12 of the Court Book
The Applicant went on to say that she had a visa when she applied for a permanent residence visa. Her husband’s aunt lived in Australia at the time and they were taking care of her. She said that she thought she had two kinds of visa. She was told by the Tribunal that her application was rejected. She said that she thought she knew that her application had been rejected when she applied for permanent residence but she could not remember when.
The Applicant said that she only found that her application had been rejected when Immigration officers came to the shop where she worked and detained her. She said that she could not remember whether Priscilla Yu was her migration agent at the time. She said she did not receive any letters because she moved a lot. She insisted that she only found in 2005 that her visa application had been rejected. When asked why she had written in her application for review that she had received notification of the decision in 1997 the Applicant said that she could not remember.
The Applicant said that she applied for a review of the decision to refuse her application for a permanent residence visa in 2002 or 2003. She said that she won that case but she had to pay $1,500.00. She could not remember the year.
The Applicant conceded that her husband had left Australia in October 2004 but denied that he left because he could not obtain permanent status. She said that he left because he was sick.
The Applicant admitted in cross-examination that the only reason she made the application to the court was because she was taken into detention at Villawood. She said that she thought her protection visa application was still proceeding.
The Applicant explained that she was not able to communicate well with her migration agent was because the agent spoke Mandarin and her Mandarin is quite poor.
The Applicant submitted that she had applied for a protection visa was because of the policies of the Chinese government. All her life she had to suffer discrimination and damage; that is why she came to Australia. She said that she had supported the students who demonstrated in Tiananmen Square in 1989 which was why she was sacked by her employer. She opened a restaurant but it was difficult to operate because of the people who came to her restaurant and extorted her because of her Korean ethnic background.
For the Minister, Mr Smith submitted that the Applicant had not made out any of the grounds in her application. In any event, the Tribunal decision was made in October 1997 but the application to this Court was not made until November 2005. He submitted that the most benign interpretation of the Applicant’s evidence is that her entire consideration was on her application for residency. It was open to the Court to find that the Applicant was notified of the Tribunal decision in 1997, which is what is written on her application. In addition, the Applicant was represented by a migration agent to whom a copy of the Tribunal decision was sent.
Mr Smith also submitted that the Applicant’s own evidence did not support her claim that she had a reasonable explanation for the delay in commencing proceedings. Accepting that the Applicant was distracted by her permanent residence application it is likely that she was in some form notified of the decision but just did not care, and only cared about the application for a protection visa when she was taken into Immigration Detention. He submitted that applying for a different visa indicated that the Applicant had waived any right to review the decision to refuse her application for a protection visa. In effect, she had pursued an alternative and inconsistent course.
Conclusions
The Tribunal decision was handed down on 30th October 1997. It pre-dates the introduction into the Migration Act of both ss.424A and 422B.
The Applicant claims in her amended application that she was denied procedural fairness in that the Tribunal acted upon the basis of adverse country information but fell into jurisdictional error by failing to provide her with the opportunity to comment upon that information.
This claim is at odds with the Tribunal decision record, where the Tribunal records several instances where country information was discussed with the Applicant. These include the following:
The Tribunal discussed with the applicant information from external sources relevant to the claims she had made.[10]
The Tribunal discussed with the applicant information from external sources which indicates that corruption in China is a widespread problem and it was suggested to her that the difficulties she experienced with the authorities after 1990, when she established her business, were due to the widespread corruption that influences the lives of all Chinese citizens rather than a situation which she suffered due to her individual political opinion. The Tribunal cited an international survey on the subject of corruption, conducted by an independent graft agency based in Germany, which found that China is one of the worst countries in the world with regard to “bribery and kickbacks”…[11]
The Tribunal also discussed with the applicant the matter of her claim that she would be at risk of persecution because she had applied for refugee status in Australia. The Tribunal cited information provided by DFAT which indicates that PRC citizens returning to China may be questioned regarding such matters but not subjected to persecution solely for that reason…[12]
[10] Court Book at 59 and 60
[11] Court Book at 61
[12] Court Book at 62
The Applicant has not pointed to any specific information in the Tribunal’s decision that she claims was not discussed with her or brought to her attention for her comment. The passages quoted above suggest that the Tribunal was punctilious in bringing adverse country information to the Applicant’s attention and giving her the opportunity to comment on it. The Applicant has not made out her claim of a denial of procedural fairness.
I am aware that the Applicant is not legally represented in these proceedings, although she had the benefit of advice from counsel, who settled her amended application. I have considered the Tribunal decision and the other material in the Court Book independently of the claims made by the Applicant or the submissions of the First Respondent, and I cannot make out any jurisdictional error.
As there is no apparent jurisdictional error, the Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. A privative clause decision:
a)is final and conclusive; and
b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.[13]
[13] Migration Act 1958 (Cth) s.474(1)
Delay
There is also the issue of delay to be considered. It is well established that the court has a discretion to dismiss an application for a constitutional writ in cases where there has been unwarrantable delay (see R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565 per Barwick CJ, Gibbs, Stephen, Mason and Aickin JJ at 568.5 and 570.3; Naguit & Anor v Minister for Immigration [2005] FMCA 930 at [18]-[23]; S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283; The King v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400; Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491, per McHugh J at 495-496).
The delay in this case is considerable. The Tribunal decision was made and handed down on 30th October 1997. The Tribunal wrote to the Applicant on 30th October at her Post Office Box in Haymarket, the postal address she gave in her request for hearing that was received by the Tribunal on 25th September 1997.[14] The Tribunal also sent a copy to the Applicant’s migration agent, Priscilla Yu, on 30th October 1997.[15] The Applicant did not commence proceedings in this Court for review of the Tribunal’s decision until 15th November 2005, a delay of more than eight years.
[14] Court Book at 53
[15] Court Book at 54
The Applicant has given oral evidence to the effect that she never received a copy of the decision. I observed the Applicant’s demeanour in the witness box during her evidence and chief, and also during the extensive cross-examination by Mr Smith of counsel. I did not find the Applicant to be a credible witness, as she constantly denied obvious facts and complained of lack of memory. Her claim that she could not communicate well with her migration agent, who speaks Mandarin, because the Applicant’s own command of Mandarin is “poor” did not ring true. The Applicant, through her migration agent, requested a Mandarin interpreter and not a Korean interpreter in her request for hearing[16] and gave oral evidence to the Tribunal on 22nd October 1997. There is no mention in the Tribunal’s decision record that the Applicant had any trouble communicating with the Tribunal with the assistance of a Mandarin interpreter. The Applicant has not at any time complained that she was in any way hampered in giving evidence at the hearing because she did not have the assistance of a Korean interpreter.
[16] Court Book at 53
I am not satisfied that the Applicant was a credible witness in the proceedings before this court. I am not satisfied that she has provided any reasonable explanation for the lengthy delay. I consider that counsel for the Minister correctly summed up the situation when he submitted that the Applicant’s attention was directed towards her application for permanent residence rather than her application for a protection visa. It was not until the Applicant was taken into Immigration Detention that she considered doing anything about seeking a review of the decision of the Refugee Review Tribunal.
Even if I were satisfied that the Tribunal had fallen into jurisdictional error, I would exercise the Court’s discretion to deny relief because of the lengthy and unwarrantable delay. I do not accept the Applicant’s evidence that she did not receive a copy of the decision and was not aware that her application had been refused because she “moved a lot”. Even allowing for the fact that she was giving evidence through an interpreter (although in a language that she had specifically requested at the first court date on 24th January 2006), I found the Applicant to be an evasive and untruthful witness.
The delay in bringing the proceedings exceeds eight years. I consider that to be excessive. In Gararth v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 316, Wilcox J considered the authorities on the effect of excessive and unexplained delay:
Nonetheless, constitutional relief is a discretionary remedy. 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 refuse.[17]
[17] [2006] FCA 316 at [62]
The decision in Gararth was referred to with approval by Jacobson J in SZGZW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 457 at [30]-[32]. Jacobson J went to say at [34]:
In the present case it is clear that applying these authorities, a delay of nearly nine years would be excessive and very difficult to excuse.
The delay of over eight years is excessive and I do not accept the Applicant’s evidence as to her explanation. Even if I were satisfied that she had otherwise made out a good case, I would refuse relief on discretionary grounds.
The Applicant has not made out a good case for relief. There is no jurisdictional error. The decision is a privative clause decision and the application will be dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 18 December 2006
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