Minister for Immigration and Citizenship v SZIQB

Federal Court of Australia (Full Court)|2008-03-06|Before: Bennett JJ

INTRODUCTION 1 In March 1998 the first respondent sought review by the Refugee Review Tribunal ("the Tribunal") of a decision of a delegate of the appellant ("the Minister") to refuse his application for a protection visa. On 5 February 1999 the Tribunal, in a decision now conceded to be affected by jurisdictional error, affirmed the decision not to grant him a protection visa. 2 A letter dated 9 February 1999 containing advice about the decision of the Tribunal was sent to the first respondent at his home address as given on his application to the Tribunal. It appears that a copy of this letter was also sent to his migration agent. 3 On 5 April 2006 (ie slightly over seven years later) the first respondent made application to the Federal Magistrates Court for judicial review of the decision of the Tribunal. He thus invoked the jurisdiction of the Magistrates Court to exercise the same jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution (see s 476 of the Migration Act 1958 (Cth) ("the Act")). The jurisdiction of the High Court under s 75(v) of the Constitution is a jurisdiction in matters in which constitutional writs are sought against officers of the Commonwealth. 4 The first respondent additionally sought from the Federal Magistrates Court an extension of time within which to make his application to that court. The Minister accepts, at least for the purpose of this appeal, that having regard to the findings of fact made by the learned Federal Magistrate, the first respondent did not require an extension of time within which to make his application to the Federal Magistrates Court. 5 On 6 September 2007 the Federal Magistrates Court, rather than ordering that a constitutional writ issue, declared that the decision of the Tribunal made on 5 February 1999 was invalid and of no effect. It ordered that the application for review be referred back to the Tribunal, differently constituted, to be heard and determined according to law. 6 This appeal from the judgment of the Federal Magistrates Court has been brought on the ground that the Federal Magistrate erred in refusing to exercise his discretion to dismiss the application to that court on the basis of the first respondent's delay in instituting the proceeding. 7 For the reasons set out below we have concluded that the appeal succeeds and that in lieu of the order made by the Federal Magistrates Court it should be ordered that the first respondent's application to the Federal Magistrates Court be dismissed.

JUDGMENT OF THE FEDERAL MAGISTRATES COURT 8 The first respondent gave evidence in the Federal Magistrates Court. He said that he had left the address that he had given the Tribunal before the date on which the letter containing advice about its decision was sent to him. He claimed to have moved to Wagga Wagga for approximately a year. He gave confused, and apparently contradictory, evidence concerning his later communications with his migration agent. His evidence included that his migration agent told him that he had changed career, that his migration agent told him that his matter was still under review and that his migration agent said he would investigate what was going on with respect to his application. He acknowledged that he took no steps to approach the Tribunal until, in 2006, on the advice of a friend, he authorised that friend to approach the Tribunal on his behalf to obtain a copy of its decision. 9 The learned Federal Magistrate rightly identified that the only issue for his determination was whether he should exercise a discretion not to remit the matter to the Tribunal because of the delay on the part of the first respondent in making his application to the Federal Magistrates Court. His Honour placed reliance in this regard on statutory provisions not in force at the relevant time but this is of no significance for present purposes. 10 The Federal Magistrate cited the following passage from the reasons for judgment of Kirby J in SZBYR v Minister for Immigration (2007) 235 ALR 609 at [57]: In my own reasons in Aala [ie Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82] I indicated that the 'public character of the legal duties' which the remedies were designed to uphold meant that 'ordinarily, [relief] will issue where the preconditions are made out. I went on to acknowledge: 'But circumstances will occasionally arise where it is appropriate to withhold the writ because a party has been slow to assert its rights, has been shown to have waived those rights, or seeks relief in trivial circumstances or for collateral motives, and where the issue of the writs would involve disproportionate inconvenience and injustice.' 11 Additionally, the Federal Magistrate referred to Wilcox J's consideration in Gararth v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 91 ALD 790 of the judgment of Madgwick J in S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 451. In S58 of 2003 relief was declined on discretionary grounds because of the applicant's unexplained delay of five years. In Gararth at [62] Wilcox J observed: 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 excuse. So the result in S58 is not surprising. Similarly, in relation to Marks…Although the delay in that case was less (17 months), that delay had to be examined in the context that it was a delay in litigation concerning termination of employment, an area in which expedition has always been thought particularly important, and the delay was being measured against the particular times specified by the High Court Rules 2004 (Cth) The delay in this case was a little under two years, from 11 April 2002 when the MRT's decision was published, to 18 March 2004, when the present proceeding was commenced in the Federal Magistrates Court. A delay of two years in seeking constitutional relief is a delay of such significance as to call for explanation, if a court is not to reject the case on discretionary grounds. 12 The Federal Magistrate concluded that the first respondent revealed a distinct lack of enthusiasm about chasing the Tribunal for its decision. His Honour noted that the first respondent's story changed between the evidence that he gave in response to questions from his Honour and evidence given in response to questions from the Minister's counsel. The Federal Magistrate concluded that he was unable to make a finding as to whether the first respondent learnt of the Tribunal's decision earlier than 2006. 13 His Honour made the following observation: … There is no evidence about the sending or receipt of the letter in the court book. I am prepared to accept that the applicant did not receive it. Whilst I am not able to make any findings as to whether the applicant found out about the decision prior to 2006 I can readily understand that whilst he was free to continue to live in Australia undisturbed by the Department or its officers there was no incentive to do so. He wished to stay in Australia. Why would he take steps that might result in his being returned to China? I do not consider his actions (or more accurately, lack of actions) as inimicable to an application for refugee status. Although the law requires that a judge exercising judicial discretion in a matter such as this must take into account all circumstances, I would respectfully suggest that this should be done in the context of the rights sought to be enforced by the applicant. In this case the rights sought to be enforced are the obligations that Australia voluntarily entered into when it became a party to the Refugees Convention as amended by the 1967 Refugees Protocol which obligations were translated into domestic law through the Migration Act. 14 After referring to the history of the Refugees Convention, the noble nature of its fundamental humanitarian purpose, and the different responsibilities imposed on the Minister, or his or her delegate, on the one hand, and the courts on the other, his Honour concluded that it would be inappropriate for him to take into account "the factual circumstances surrounding the persecution alleged". We conclude that his Honour thereby meant the apparent strength of the first respondent's claim to be entitled to a protection visa. 15 His Honour then said: …This is particularly the case when the applicant has, through some jurisdictional error, not had an opportunity of a hearing before the Tribunal. This is not to say that the court cannot exercise its discretion to refuse to grant relief in any case where a jurisdictional error preventing an appearance before the Tribunal or in the Tribunal's consideration of the claims has occurred. But because delay is consistent with wishing to remain in the country, and wishing to remain in the country is consistent with a claim of refugee status there would, to my mind, have to be something more than the period of delay involved to persuade me to exercise my discretion against remitting a matter such as the one before me where the applicant's claims have not been fully tested. "Something more" consistent with the views expressed above could not arise out of the facts surrounding the applicant's claim. It could arise from the applicant's conduct in regard to the claim, but, again, not simply delay. In the instant case nothing more has been established to my satisfaction given my finding that the applicant did not receive the decision. I will therefore give a declaration that the decision of the Refugee Review Tribunal made on 5 February 1999 is invalid and of no effect. 16 We note, incidentally, that the evidence before his Honour did not go so far as to show that the conceded jurisdictional error made by the Tribunal denied the first respondent an opportunity of appearing before the Tribunal. The error made by the Tribunal was that identified by Cooper J in Xie v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 543; namely, that as an applicant's right to be heard by the Tribunal is a statutory right, the Tribunal is not authorised to make the exercise of that right conditional upon an applicant's responding to an invitation by a particular date. The reasons for decision of the Tribunal disclose that it sent the first respondent a notice dated 24 November 1998 offering him the opportunity of a hearing provided that, within a specified period, he indicated that he wished to avail himself of that opportunity. The Tribunal additionally sent a copy of the notice to the first respondent's migration agent. The Tribunal received no response to its notice. The first respondent's evidence before the Federal Magistrate indicates that he probably received the Tribunal's notice shortly before he left for Wagga Wagga but may not have had it translated. He acknowledged in response to a question from the Federal Magistrate that he did not tell his migration agent of his change of address.

CONSIDERATION 17 As the High Court recognised in Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82 the grant of relief by way of constitutional writs is discretionary and delay in the course of the administrative proceeding may militate against the grant of relief (Gleeson CJ at [5], Gaudron and Gummow JJ at [53], Kirby J at [148], Hayne J at [172] and Callinan J at [217]). The power of the Federal Magistrates Court to make a declaration is also discretionary (s 16 of the Federal Magistrates Act 1999 (Cth)). 18 We accept the Minister's submission that the reasons for judgment of the Federal Magistrate are properly to be understood as saying that, in a case involving a claim of refugee status, delay in applying for judicial review of a decision dismissing that claim will never of itself be sufficient to justify the refusal of discretionary relief. His Honour appears to have taken this view in part because of the serious humanitarian concerns which lie behind recognition of refugee status and in part because delay in such a case is consistent with a wish to remain in Australia. 19 In our view, it is unnecessary to determine whether, in a case involving a claim of refugee status, delay alone could be a sufficient basis for the withholding of discretionary relief. It is virtually impossible to imagine a case in which the only factor relevant to the grant or withholding of relief is delay; an additional relevant factor will either be the failure to explain the delay or, alternatively, the explanation given for the delay. Perhaps more importantly, this is not a case of delay alone. 20 The evidence before the Federal Magistrate disclosed that the first respondent was aware of at least the following matters. His application for a protection visa had been refused by a delegate of the Minister. He had made an application to the Refugee Review Tribunal for review of that decision in March 1998. He authorised a migration agent, Mr Feng, to act on his behalf in relation to his application for review. He left his home address, as given on his application for review, without advising either the Tribunal or Mr Feng of his new address. He subsequently telephoned Mr Feng and was advised by him that he had changed his career and was no longer working as a migration agent. Between March 1998 and sometime in 2006 he learnt nothing of the fate of his application to the Tribunal. He did not approach the Tribunal to inquire about the fate of his application for review of the decision of the Minister's delegate until 2006. 21 Having regard to the above matters it is, in our view, immaterial whether the first respondent was telling the truth when he said that he telephoned Mr Feng once a year to ask what had happened to his application to the Tribunal and Mr Feng said that he would investigate. It is also immaterial whether the first respondent is appropriately described as having gone "underground". 22 We note, incidentally, that while the conduct of the first respondent in leaving Sydney without advising either the Tribunal or his migration agent of his new address was, as the Federal Magistrate observed, consistent with his wishing to remain in Australia, many persons not entitled to refugee status wish to remain in Australia. The first respondent's conduct might be thought to be equally consistent with his fearing that his claim to have a well-founded fear of persecution in his country of nationality would not withstand investigation by the Tribunal. 23 A person who seeks the protection of Australia by applying for the visa for which s 36 of the Act provides, and thereafter avails himself or herself of the right of administrative review by the Refugee Review Tribunal for which s 411 of the Act provides, is not entitled to disregard the obligations imposed on him or her by other provisions of that Act and the Migration Regulations 1994 (Cth). One such obligation is to tell the Minister of any proposal to change his or her address (s 52(3B) of the Act). Another obligation is to give the Tribunal a notice in writing of an address, including a new address, at which documents relating to a review may be sent (reg 4.39 of the Migration Regulations). Any failure to comply with relevant obligations imposed by the Act and the Migration Regulations is a factor to be weighed in the balance where a claim is advanced for discretionary relief. What weight should be accorded such failure will depend on all the circumstances of the case. 24 The authorities similarly reveal that the apparent strength, or alternatively weakness, of a claim for relief is also a factor that may be weighed in the balance where a claim is advanced for discretionary relief (Jess v Scott (1986) 12 FCR 187; Howard v Australian Electoral Commission [2000] FCA 1767 at [7]). In the circumstances of this case, consideration of this factor would not necessarily have involved his Honour in impermissible consideration of the merits of the first respondent's claims. It would rather have required his Honour to consider questions such as whether the first respondent's claims, if substantiated, would or could bring him within the ambit of the Refugees Convention and whether the persecution allegedly feared by him is serious harm within the meaning of s 91R of the Act. 25 More importantly in the circumstances of this case, there are compassionate reasons, as well as public policy reasons, why any challenge to the refusal of an application for a protection visa should be instituted promptly. In many cases personal anguish will follow the rejection of an application for a protection visa. Anguish of this kind is likely to be exacerbated if the decision comes after the applicant has spent some years in Australia. Moreover, it is not in the public interest that the immigration status of members of the Australian community should be unresolved or otherwise uncertain. It is, it may be assumed, for these reasons - and possibly others - that the Act discloses (and disclosed in 1998) a legislative intent that the process of determining claims for protection visas should proceed expeditiously (see, for example, s 412 and s 420 of the Act as in force in March 1998). 26 The reasons for decision of the Federal Magistrate demonstrate that his Honour failed to give proper weight to the above considerations. We therefore conclude that his Honour exercised his discretion to grant relief to the first respondent on an erroneous principle.

SHOULD THE MATTER BE REMITTED 27 It is therefore necessary for this Court to reach a decision as to whether the matter should be remitted to the Federal Magistrates Court for the discretion to be re-exercised, or whether this Court should determine itself whether the relief sought by the first respondent should be withheld because of his delay in ascertaining the outcome of his application to the Tribunal and thus in challenging its legality. 28 We have the benefit of the transcript of the first respondent's evidence before the Federal Magistrates Court. We have also received written and oral submissions from the first respondent and the appellant. In these circumstances we consider that this Court is in as good a position as the Federal Magistrates Court to determine whether relief should be withheld from the first respondent. 29 The first respondent placed reliance on the fact that he has now been in Australia for eleven years and, as he asserts, that he has had three applications for a work permit refused. He also submitted that it was the Department of Immigration that delayed his case for more than ten years. He did not expand on this submission. He stated that he went to Wagga Wagga for medical treatment and was then in a very difficult situation and unable to contact the department. 30 We consider it appropriate to start from the position that an applicant for judicial review of an administrative decision made more than seven years earlier is required to offer a satisfactory explanation of why the application was not made earlier. The evidence and submissions of the first respondent bearing on this issue do not constitute a satisfactory explanation. Rather they have satisfied us that he deliberately undertook a course of conduct that would render it difficult, if not impossible, for the Tribunal, his migration agent and the Department of Immigration to find him. We are also satisfied that he made no real effort to ascertain the fate of his application to the Tribunal. These conclusions render it unnecessary for us to consider the apparent strength of the first respondent's claim to be entitled to a protection visa.

APPROPRIATE ORDERS 31 Having regard to our above findings it is appropriate that the first respondent's application for judicial review of the decision of the Tribunal be dismissed. The Minister did not seek an order as to costs. The orders appropriate to be made are:

The appeal be allowed.
The orders made by the Federal Magistrates Court on 6 September 2007 be set aside and in lieu thereof it be ordered that the application for judicial review of the decision of the Tribunal be dismissed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Emmett and Bennett.

Solicitor for the Appellant: Australian Government Solicitor

Counsel for the First Respondent: The First Respondent appeared in person.

Date of Hearing: 11 February 2008

Federal Magistrates Act 1999(Cth)s 16

Migration Act 1958(Cth)ss 36, 52(3B), 91, 411, 412, 420, 476

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