SZIBM v Minister for Immigration
[2006] FMCA 724
•23 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIBM v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 724 |
| MIGRATION – Review of decision by Refugee Review Tribunal (“RRT”) – refusal to grant protection visa – breach of s.424A of the Act by RRT – deemed delay of 8 days – time for filing extended under s.477(2) – delay of more than 3 years between notification of Tribunal decision and seeking review – applicant claimed delay due to inability to afford legal advice – delay unjustified – balance of interests of applicant in having claims determined by RRT and interests of community in having administrative decision finalised – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.422B; 424A; 424A(1); 424A(3)(b); 426A; 477; 477(2); 477(3); 483 Migration Litigation Reform Act 2005(Cth), Schedule 1 cl.42 |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 R 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 |
| Applicant: | SZIBM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBINAL |
| File number: | SYG68 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 1 May 2006 |
| Date of last submission: | 1 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser |
| Counsel for the Respondent: | Mr T. Reilley |
| Solicitors for the Respondent: | Ms L. Gazi, Australian Government Solicitor |
ORDERS
The application before this Court is dismissed.
That the applicant pay the First Respondent’s costs in an amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG68 of 2006
| SZIBM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 29 August 2002 to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the applicants.
The applicant is a 43 year old male who claims to be a citizen of the People’s Republic of China (“the PRC”) and of Han ethnicity and Falun Dafa faith (“the Applicant”).
The Applicant has a wife and son born on 7 November 1989 who were residing in the PRC when the Applicant left the PRC.
Having legally departed from Beijing on a passport issued in his own name, the Applicant arrived in Australia on 28 December 2000 on a visa that was issued in Auckland,. The Applicant claimed that he had assistance in arranging his passport.
On 27 March 2001, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
The Applicant claimed that he feared persecution by the police in Hae Bin City, the secret police and people who discriminated against the religion Falun Dafa. The Applicant claimed that he fears persecution from these groups by reason of his Falun Dafa beliefs and membership. Further, the Applicant claimed that, if he were to return to the PRC, he will suffer persecution by reason of his leadership role with “Dhad” which “has not been discovered before”.
On 10 May 2001, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 14 June 2001, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
Tribunal proceeding
On 8 August 2002, the Tribunal affirmed the decision of the Delegate not to grant a protection visa after proceeding with its review in the absence of the Applicant.
On 5 July 2002, the Tribunal wrote to the Applicant informing him that that the Tribunal was unable to make a favourable decision on the material before it, in support of the Applicant’s application. The Tribunal invited the Applicant to present evidence and arguments in support of his case at a hearing on 7 August 2002. The Tribunal also notified the Applicant that, should he not attend the hearing, and a postponement was not granted, then the Tribunal could proceed to make a decision without any further notice to the Applicant.
The Tribunal did not receive a response from the applicant. However, it did receive an envelope addressed to the Applicant’s residential address and marked “Return to Sender – Insufficiently Addressed”.
The Tribunal stated that it checked the Departmental and Tribunal files and database for a more recent address. It noted that the Applicant had not provided the Tribunal with a telephone number.
The Applicant failed to attend the Tribunal hearing and did not contact the Tribunal to explain his absence.
In his application for review by the Tribunal the Applicant gave the following reasons for making the application:
“My detailed statement of disagreement will be posted to RRT.
I have evidence to present to RRT to further support my claims for refugee status.
I wish to have opportunity to submit & to attend a hearing.”
No further material was received by the Tribunal from the Applicant in support of his application for review.
The Tribunal proceeded with its review in the absence of the Applicant after noting that the Applicant had been invited, by letter dated 5 July 2002, to give oral evidence and present arguments at a hearing on
7 August 2002, to which no response had been received. The Tribunal noted that the Departmental and Tribunal files were checked for a more recent address, but the Applicant had not provided the Tribunal with a telephone contact number. The Tribunal also noted that the Department’s movement database had been checked. Accordingly, the Tribunal proceeded with its review in accordance with s.426A of the Act.
The Tribunal had regard to the personal information of the Applicant provided in his protection visa application, his travel information as deduced from his passport and his claims in support of his protection visa application dated 7 December 2004. The Tribunal noted that the Applicant had stated in his protection visa application that a more detailed statement would be submitted at a later stage. However, no such statement was ever received by the Department.
The Tribunal noted that the Applicant claimed that he was subject to persecution in the PRC because he was a member of Falun Dafa and because of his political opinions. The Applicant claimed that he was at risk of persecution by the government in the PRC because he is a “big leader” of Falun Dafa and that his name is on a “blacklist”.
The Tribunal accepted that the Applicant is a Chinese national having regard to his 2 valid Chinese passports.
However, the Tribunal found that the Applicant’s claims “in his protection visa application were so vague and generalised that it was impossible to establish the facts.” The Tribunal noted that there was no evidence of the Applicant’s own personal experiences, other than in generalised and vague terms. The Tribunal noted that the Applicant gave no specific details of what he had been involved in or when. Because of the lack of specificity in his claims, the Tribunal did not accept that the Applicant was a member of Falun Dafa or that he had a political opinion different to that of the government in the PRC. For the same reasons, the Tribunal was not satisfied that the Applicant faced a real chance of persecution for a Convention reason if her were to return to the PRC.
The Tribunal noted that the Applicant had been able to leave the PRC legally on a passport issued in his own name in December 2000, some 18 months after the Chinese government had banned Falun Gong, and concluded, therefore, that the Applicant was not of interest to the Chinese authorities.
The Tribunal also had regard to the fact that the Applicant waited 3 months before making a protection visa application and after having visited New Zealand. That conduct led the Tribunal to conclude that such conduct is not the conduct of a person who fears persecution in his own country. The Tribunal concluded that it was not satisfied that the Applicant has a well founded fear of persecution in the foreseeable future if he were to return to the PRC because of his Falun Dafa membership or for any other Convention reason.
The Tribunal handed down its decision on 29 August 2002.
The proceeding before this court
On 9 January 2006, the Applicant filed an application in this Court seeking judicial review and constitutional writ relief in respect of the Tribunal’s decision made on 8 August 2002.
The Applicant was represented by Counsel at the hearing before this Court and had the assistance of an interpreter for the giving of his evidence.
By consent, the Applicant relied on an Amended Application filed in Court at the time of the hearing. The Applicant relied on Ground 3 only of the Amended Application, set out as follows:
“3. The Tribunal based its decision on information which the applicant provided to the Department. In the circumstances, the Tribunal should have given the information to the applicant under s 424A of the Migration Act. Its failure to do so constituted a contravention of s 424A and jurisdictional error: see SZEEU v MIMIA [2006] FCAFC 2.”
In relation to the ground relied upon, Counsel for the Applicant referred to 3 particulars in the Tribunal decision that he contends contained findings and conclusions made in breach of s.424A(1) of the Act. They are set out as follows:
“a) “I am unable to accept that the applicant’s evidence had any credibility or veracity. The applicant’s claims in his protection visa application were so vague and generalized that it was impossible to establish the facts.” (CB 70.7)
b) “I am supported in my findings by the fact that the applicant was able to leave China legally on a passport in his own name in December 2000 18 months after the Chinese government banned Falungong.” (CB 71.3)
c) “The applicant did not make an application for a protection visa until after being in Australia for 3 months and after having visited New Zealand. These are not the actions of a person who fears persecution in his own country.”(CB 71.5)”
At the outset of his submissions, Counsel for the Applicant conceded that the first particular was not a particular that was pressed as a breach of the Tribunal’s obligations pursuant to s.424A(1) of the Act.
In relation to the second and third particulars, both contain references to information contained in the Applicant’s protection visa application to which the Tribunal had regard and which formed part of the reason for the Tribunal affirming the decision under review. In circumstances where the Applicant provided no material to the Tribunal, save that referred to above in paragraph 14, the Applicant cannot be taken to have given that information to the Tribunal for the purposes of his review and, therefore, s.424A(3)(b) of the Act does not apply to exclude such information from the requirements of s.424A(1) of the Act.
Accordingly, having considered those 2 particular pieces of information, being information provided by the Applicant in support of his protection visa application and not otherwise given to the Tribunal for the purposes of his review, the Tribunal was obliged, pursuant to s.424A(1) of the Act, to give the Applicant notice in writing of the information, identify its relevance and invite the Applicant to comment upon it.(SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 (“SAAP”); SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (“SZEEU”)).
In the circumstances, the Tribunal breached its obligation pursuant to s.424A(1) of the Act and its decision is affected by jurisdictional error.
Statutory regime of time limits
Pursuant to s.477 of the Act, the Applicant must make any application for review of the Tribunal’s decision within 28 days of notification of the Tribunal decision.
Pursuant to s.477(2) of the Act (which came into affect on 1 December 2005) this Court may extend the 28 day period up to a further 56 days if Court is satisfied that it is in the interests of the administration of justice to do so, in respect of applications filed in this Court after
1 January 2006. Section 477(3) of the Act provides that no further extension is able to be made by the Court beyond the 84 day period.
Pursuant to the transitional provision of the Act, where an applicant was notified of the Tribunal’s decision before 1 December 2005, then the applicant is deemed to have been actually notified on 1 December 2005. (see cl.42 of Schedule 1 Migration Litigation Reform Act 2005(Cth)).
In the circumstances of this case, the Applicant commenced proceedings in the Federal Magistrates Court on 9 January 2006. The Applicant, on his own evidence, was aware of the decision some time in August 2002. The application filed in this Court on 9 January 2006 sought an order that time for making his application be extended pursuant to s.477(2) of the Act.
In considering whether time should be extended, it is necessary to have regard to the reasons for such delay. There are two relevant periods of delay to be considered. The first, is the Applicant’s explanation for his delay between deemed notification on 1 December 2005 and filing in this Court on 9 January 2006. If time is extended in respect of the deemed delay of 8 days, then the Court must consider whether the discretionary relief sought should be granted. That consideration will involve examination of the Applicant’s conduct in prosecuting his right of review and any explanation proffered by him for any delay.
Deemed delay of 8 day period – s.477(2) of the Act
In support of his application, the Applicant read an affidavit, sworn by him on 1 May 2006, and filed, by consent with this Court at the hearing. In that affidavit, the Applicant deposed to the following assertions:
“16. In March 2002 I was put in detention at Villawood IDC. On 14 April 2002 I was transferred with 28 other Chinese detainees from Stage 3 to Stage 1 so roughly that I sustained permanent serious back injuries which are now the grounds for compensation claims in another court. I believed I could not be removed from Australia and that the persecution in China would stop while this case was still going on.
18. In November 2005 the Department of Immigration warned me that I was about to be removed from Australia. This was a complete shock because my compensation case was still in the court. I was terrified because the persecution in China of Falun Gong practitioners and supporters like myself was now even harsher and more brutal.
19. On 2 December 2005 I rang Amnesty International Australia and spoke to Ms Angie Ng to ask her to help me because during my transfers from one place to another in Villawood, my documents and RRT Decision became lost or stolen. Ms Ng applied under Freedom of information for copies of my documents. She is also contacted Frances Milne, a regular visitor to Villawood Immigration Detention Centre and asked her to assist me appeal against my RRT decision or write to the Minister again when the documents were available.
20. On Thursday 5 January 2006 I was told that I was to be removed from Australia three days later on Tuesday 10 January 2006. I was extremely upset and rang Ms Milne to say I wanted to lodge an application for review of my RRT decision in the Federal Magistrates Court but that I no longer had a copy of my RRT decision and did not have any papers yet.
21. Ms Milne visited me on 8 January and lodged my application and affidavit in the Federal Magistrates Court on 9 January 2006 having first obtained a copy of my RRT decision from the RRT on the morning of 9 January 2006”
In considering whether time should be extended to allow the Applicant to rely on his application, I have particular regard to: (i) the duration of the delay from 1 December 2005 to 9 January 2006; (ii) the explanation for the delay; and, (iii) the prospects of success by the Applicant of his application for review by this Court.
In relation to (i), I note that the period of deemed delay is in the order of 8 days.
In relation to (ii), the evidence of the Applicant is that he was told in November 2005 that he was to be removed from Australia and that caused him to commence taking steps to obtain advice on 2 December 2005 by contacting Amnesty International Australia and speaking to Ms Ng.
The Applicant chronicles the steps he understood were being taken by Ms Ng to assist him. According to the Applicant, those steps included Ms Ng contacting Ms Milne at Villawood detention centre and, inter alia, providing the Applicant with assistance in appealing the Tribunal decision.
However, the Applicant’s evidence appears to be that it was not until
5 January 2005 that he instructed Ms Milne to file an application for judicial review in this Court, after he learnt he was to be removed from Australia on 10 January 2005. Whilst there is no supporting affidavit from Ms Ng or Ms Milne or any evidence from the Applicant why that is so, for the purposes of the Applicant’s application for an extension of time pursuant to s.477(2) and the transitional provisions of the Act, I shall not draw any adverse inference against the Applicant in respect of what the evidence of Ms Ng or Ms Milne may have been.
In relation to (iii), where the Tribunal decision was affected by jurisdictional error, the prospects of success depend on the exercise of the granting of discretionary relief, having regard to all of the circumstances, including the Applicant’s conduct in the prosecuting of his right of review. Where the success or failure of the Applicant’s application depends on the exercise of the Court’s discretion, it must be that the Applicant has an arguable case.
Having considered the relatively short delay of 8 days in filing his application in this Court from the date of deemed notification, pursuant to s.477(3) of the Act; the Applicant’s explanation of his delay from the deemed date of notification of the Tribunal’s decision; and the fact that the Applicant has an arguable case; then, in those circumstances, in accordance with s.477(2), I am satisfied that the interests of justice demand that time be extended to the Applicant to 6 January 2006 for the filing of his application in this Court for judicial review and constitutional writ relief in respect of the Tribunal’s decision made 8 August 2002.
Applicant’s conduct in prosecution of right of review
Having found that the Tribunal’s decision was affected by jurisdictional error, in that the Tribunal failed to comply with the requirements of s.424A of the Act, as construed in SAAP and SZEEU, I now turn to the Applicant’s conduct in the prosecution of his right of review by this Court.
The Applicant delayed seeking review of the Tribunal’s decision for almost 3 ½ years after having become aware of the Tribunal’s refusal to grant him a protection visa application.
The Applicant gave evidence that, whilst he was aware of the Tribunal’s decision, he did not recollect when he actually received a copy of the decision. However, in evidence he confirmed that he was aware, from about August 2002, that he was entitled to seek review of the Tribunal’s decision. The Applicant gave evidence that the reason he did not do so was because he could not afford a lawyer and he wished to have a lawyer present his case. He also said that he did not pursue any review of the Tribunal’s decision because he was engaged in a compensation claim against security guards at Villawood Detention Centre in respect of injuries he alleges were caused by their conduct.
In cross examination, the Applicant gave evidence that his position financially today was no different to his position in August 2002 except that he now had a “free lawyer” to help him. In cross examination, the Applicant stated that he was unable to find a free lawyer from August 2002 because he did not know anyone who was able to help him. However, the Applicant has been in detention at Villawood since May 2002. The Applicant conceded that he was aware that he could obtain free legal advice but that he wished to have free representation in Court because he wanted to win and he though he needed a good lawyer because he did not understand the English language or the law. The Applicant conceded in cross examination that when he filed his application for review in this court, on 9 January 2006, he still had not obtained the services of a free lawyer. He stated that his church friend helped him.
As referred to above, the Applicant relied on an affidavit sworn by him on 1 May 2006 in which he said that it was not until he was informed that he was about to be sent back to the PRC that he finally decided to file an application in this Court for review of the Tribunal’s decision.
One commences such consideration in the light of the proposition that, in the event that a decision of the Tribunal is invalid for want of procedural fairness, in the absence of any delay, waiver, acquiescence or unclean hands on the part of the Applicant, there is no reason to withhold discretionary relief. However, delay is certainly a ground upon which constitutional writ relief may be refused. (SAAP at 185 and 212; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd (1949) 78 CLR 389). McHugh J in SAAP at 183-184 observed:
“The issuing of writs s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B 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.”
In considering the delay by the Applicant of almost 3 ½ years in filing an application for judicial review of the Tribunal’s decision by this Court and the importance of finality of administrative decisions, I have regard to the comments of McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 (“Ex parte Marks”) at 495 in which he said the following:
“Where an applicant seeks the issue of constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases.”
The nature of constitutional writ relief, as referred to by McHugh J in Ex parte Marks, makes it clear that one must consider the public interest in there being efficacy in public acts, decisions and judgments which cannot be allowed to become “hostage of an applicant’s search for favourable legal advice’’ (Ex parte Marks at 496).
At the heart of the exercise of any judicial discretion must be consideration of the overall interests of justice.
I have considered the consequences that flow to the Applicant, were I to exercise my discretion to refuse to grant the relief sought, particularly, where I have found that the Tribunal decision is affected by jurisdictional error.
In the circumstances the Applicant’s explanation for his delay is both inadequate and unjustified in all the circumstances, particularly where he was aware of his entitlement to pursue judicial review of the Tribunal’s decision and took no steps to assist himself in the furtherance of that course of action until he was to be removed from Australia and sent back to the PRC. The Applicant has been in detention since March 2002. However, I do not regard that state as an explanation for his failure to take any steps to seek review of the Tribunal’s decision.
In balancing the interests of justice to the community in having such administrative decision making finalised and the interests of the Applicant in having an opportunity to have his claims heard and considered according to law, I am satisfied that the delay of almost
3½ years in seeking constitutional writ relief from this Court, occasioned solely by the fact that the Applicant was seeking to be represented by a free lawyer, is conduct amounting to undue, unreasonable, unwarrantable and unjustified delay and the relief sought should not be granted.
In the circumstances the application before this Court is dismissed.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 23 May 2006
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