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[2006] FCA 479
Federal Court of Australia
2006-05-05
Emmett J, Edmonds J
Original judgment source is linked above.
Introduction 1 This is an appeal from a judgment of the Federal Magistrates Court (Scarlett FM) dismissing an application for review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 15 March 2001. The appellant did not commence these proceedings until 8 July 2005. The intervening time between the finalisation of the Tribunal proceedings and the commencement of these proceedings was taken up in a number of other applications which are detailed in [1] - [3] of the Federal Magistrate's reasons.
Background 2 The appellant is a citizen of Indonesia who arrived in Australia on 6 February 1999 and applied for a protection visa on 22 April 1999. His application was refused by a delegate of the Minister for Immigration and Multicultural Affairs ('the Minister') on 10 November 1999 and he applied for a review of that decision by the Tribunal on 7 December 1999.
The Tribunal's Decision 3 The Tribunal found the appellant to be a credible witness. The Tribunal accepted that he was a person of mixed Chinese and Manadonese ethnicity and that he was a devoted Christian who felt a calling to work with his church. The Tribunal found that he had suffered from incidents of what the Tribunal described as minor forms of harassment whilst living in Indonesia. However, in the Tribunal's view, there was nothing to indicate that this harassment had occurred as a result of the appellant's race or religion nor for any other Convention reason. The Tribunal did not accept that any harassment the appellant might suffer in the future would be sufficiently serious to constitute persecution. 4 The Tribunal carefully considered the information before it on religious and ethnic violence in Indonesia, and concluded: 'The Tribunal finds, therefore, that there is no evidence of continuing patterns of violence directed at the ethnic Chinese or Christian communities in Indonesia, particularly in Manado and Ujung Pandang. Although it is impossible to say, given Indonesia's current political and economic climate, that riots and other forms of sporadic violence will not occur from time to time in the future in various locales in Indonesia, the Tribunal finds that the chance of the applicant, as [an] individual ethnic Chinese non-Moslem from Manado and Ujung Pandang, being affected by ethnic or religious violence in the reasonably foreseeable future is remote and insubstantial and is therefore not a "real chance".' (AB 85)
Proceedings in the Federal Magistrates Court 5 Before the Federal Magistrate, the appellant ultimately relied on six grounds. The first, second, fifth and sixth of these grounds did no more than take issue with factual conclusions of the Tribunal. The third and fourth grounds accused the Tribunal of not paying sufficient attention to aspects of the appellant's claims. The Federal Magistrate held that these grounds were not made out. His Honour was not satisfied that the Tribunal's decision was affected by any error going to jurisdiction. On that basis, it was not necessary to reach a conclusion as to whether relief should be refused as a result of the delay in commencing the proceedings - as indicated in [1] supra, the proceedings in the Federal Magistrates Court were commenced on 8 July 2005 (16 months after the dismissal of earlier proceedings by Emmett J on 20 February 2004, and more than four years after the decision of the Tribunal).
The Appeal 6 The Notice of Appeal does not identify any error in the reasoning of the Federal Magistrate, or the reasoning of the Tribunal. Moreover, I am unable to discern any error in the reasoning of the Tribunal. I agree with the submission of the Minister that the Tribunal reached a conclusion which was clearly open to it on the material, that the chance of the appellant suffering persecution in Indonesia in the reasonably foreseeable future was 'remote and insubstantial'. 7 For these reasons the appeal must be dismissed. 8 However, counsel for the Minister submitted that if there was some arguable jurisdictional error in the Tribunal's decision, the Minister would contend that relief ought to be refused in the exercise of the Court's discretion. He argued that the delay in bringing the proceedings was substantial, even if the period in which the appellant was involved in a class action is left out of account. Further, the appellant made three separate requests for the exercise of ministerial discretions, each of which presupposed the legal effectiveness of the Tribunal decision which he now seeks to set aside. 9 The Minister's argument that the Federal Magistrate's dismissal of the application should have been for want of jurisdiction was pressed in the following terms: 1. The Minister conceded below that the delay in commencing proceedings did not deprive the Federal Magistrates Court of jurisdiction under s 477(1A) of the Migration Act 1958 (Cth) ('the Act') as it then stood. If the Tribunal had fallen into jurisdictional error, its decision would not have been a 'privative clause' decision within the meaning of s 477(1A) as it stood at the relevant time; the time limit would not apply; and it would be necessary to consider the exercise of the Court's discretion. 2. However, the jurisdictional position is different if the Tribunal did not fall into jurisdiction error. The reasons of this Court in SZGDC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1834 explain why, absent jurisdictional error, s 477(1A) (in the form it took prior to December 2005) applied to an application to the Federal Magistrates Court in respect of a decision that had been made before s 477(1A) and s 483 of the Act were enacted. 3. That reasoning is not affected by the fact that, in the present case, the appellant had applied for judicial review of the Tribunal's decision before the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (which inserted most of the provisions of Part 8 of the Act, but not s 477(1A)). The operation of s 477(1A) is not controlled by the transitional provisions in Schedule 1 to that Act. 4. It follows that, as in SZGDC, if the Tribunal's decision was within power, s 477(1A) operated to deprive the Federal Magistrates Court of jurisdiction. 5. Strictly speaking, therefore, if (as the Minister submitted) there is no error in the Tribunal's decision, the application should have been dismissed for want of jurisdiction. The Minister did not ask the Federal Magistrate to do that. However, that concession could not remedy a lack of jurisdiction; and it is appropriate that his Honour's orders be varied to reflect the true jurisdictional position. 10 I agree with these submissions going to the dismissal of the application for want of jurisdiction. Consequently, the orders I propose are that: 1. The orders of the Federal Magistrate be varied so as to dismiss the application for want of jurisdiction. 2. The appeal be otherwise dismissed.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.
Solicitor for the Appellant: The appellant appeared in person
Solicitor for the Respondent: Blake Dawson Waldron
SZGSQ
Minister for Immigration & Multicultural Affairs