SZHJR v Minister for Immigration and Multicultural and Indigenous Affairs

the magistrate's decision 12 The appellant did not file an application for judicial review of the RRT's decision until 18 October 2005, over seven years after the decision had been made. At that point, the appellant was in immigration detention, having been taken in to custody on 11 May 2005. 13 The appellant informed the Magistrate at the hearing that he had become aware of the RRT's decision shortly after it had been made. Despite this knowledge, he chose not to leave Australia, but remained living in the community until he was apprehended at his place of employment. After being taken into custody, the appellant unsuccessfully requested the Minister to exercise her discretion in his favour under s 417 of the Migration Act 1958 (Cth). The appellant put forward this request as an explanation for the delay of six months between being taken into custody and lodging an application for judicial review. 14 The Magistrate noted that he had a discretion to dismiss an application for judicial review in a case where there had been an unwarrantable delay. He observed that the discretion can be exercised against an applicant without determining whether there has been any jurisdictional error, citing R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565, at 568-570 per Barwick CJ, Gibbs, Stephen, Mason and Aickin JJ and S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283. His Honour also said, on the authority of Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491, at 495-496, per McHugh J, that ordinarily a delay of more than one year should lead to relief being refused, at least in the absence of an explanation. 15 The Magistrate found that the delay between notification of the decision in March 1998 and the appellant's apprehension in May 2005 was 'not subject to any excuse whatsoever.' The appellant had simply elected not to take any proceedings challenging the RRT's decision and to remain in Australia as an unlawful non-citizen. In his Honour's view this 'extraordinary length of delay' was of itself a reason for the Court to decline to exercise its discretion and to grant relief. 16 The Magistrate considered that, in any event, no jurisdictional error had been shown. The appellant's submissions had merely canvassed the merits of the RRT's decision. In these circumstances, the Magistrates Court made final orders dismissing the application.

reasoning 17 Insofar as the appellant's notice of appeal and submissions challenge the merits of the RRT's decision, no basis has been shown for overturning the Magistrate's decision. Similarly, assuming that it is open to the appellant to argue on the appeal that the RRT denied him procedural fairness, there is nothing to suggest that the RRT did so. 18 The appellant has not sought to argue that the Magistrate's exercise of discretion, in dismissing the application by reason of the appellant's substantial delay, miscarried. However, there is a difficulty with the approach taken by the Magistrate. All of the authorities referred to by his Honour were cases which were subject to the High Court Rules and therefore involved time limits for the institution of proceedings seeking relief in the form of constitutional writs. In each case, the applicant required the leave of the Court to extend the time for instituting proceedings. 19 In the present case, notwithstanding the extraordinary delay, the appellant did not require an extension of time in which to institute proceedings seeking relief on the basis of jurisdictional error committed by the RRT. It seems to me that the Magistrate proceeded on an erroneous assumption, namely, that the appellant had to persuade the Court to exercise a discretion in his favour before it could consider whether the RRT had indeed committed a jurisdictional error. The correct position was that the Magistrate had a discretion to withhold relief on various grounds, including unjustified delay, even if the appellant established that the RRT's decision was affected by a jurisdictional error. 20 In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd (1949) 78 CLR 389, the High Court pointed out that the writ of mandamus is not a writ of right and that there are well recognised grounds upon which the Court may, in its discretion, withhold the remedy. By way of example, the Court stated (at 400) that the writ may be withheld if the relevant party has been guilty of unwarrantable delay. 21 In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, McHugh J said (at [80]): 'The issuing of writs under 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.' [Citations omitted.] See also at [211], per Hayne J, with whom Kirby J agreed on this issue. 22 The difficulty with the approach of the Magistrate is that he did not ask whether the circumstances of the delay justified the withholding of relief in the event that the appellant established that the RRT had committed a jurisdictional error. Rather, the cases upon which he relied suggest that he required the appellant to satisfy the Court that a discretion should be exercised in his favour, having regard to the fact that the delay exceeded one year. 23 On any view, the appellant was guilty of long delay and no satisfactory excuse was or could be proffered for that delay. But the question asked by the Magistrate, in my view, was not the correct one and this led to his discretion miscarrying on this issue. 24 The appellant is not entitled to succeed on the appeal, however, unless he can establish that the Magistrate also erred in concluding that the RRT had not committed any jurisdictional error. The Magistrate did not turn his attention to an argument that could have plausibly been raised on the appellant's behalf. That argument is that the RRT, in its references to 'systematic conduct directed against the [appellant] as a member of the ethnic Chinese community' may have erroneously insisted upon a pattern of methodical conduct, or a series of coordinated acts, as a prerequisite to a finding that the appellant had suffered persecution in Indonesia. 25 The notion of 'systematic conduct' was referred to in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, at 429-430, per McHugh J. As McHugh J observed in Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1, at [95], the use of this expression proved somewhat unfortunate in that some RRT decisions read it as meaning that there can be no persecution for the purposes of the Convention unless there has been a systematic course of conduct by the oppressor. McHugh J made it clear in Ibrahim that that had not been his meaning. Rather, he intended the expression to be a synonym for 'non-random'. McHugh J also said this (at [99]): 'It is an error to suggest that the use of the expression "systematic conduct" in … Chan was intended to require, as a matter of law, that an applicant had to fear organised or methodical conduct, akin to the atrocities committed by the Nazis in the Second World War. Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution. Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or "must show a series of co-ordinated acts directed at him or her which can be said to be not isolated but systematic". The fear of a single act of harm done for a Convention reason will satisfy the Convention definition of persecution if it is so oppressive that the individual cannot be expected to tolerate it so that refusal to return to the country of the applicant's nationality is the understandable choice of that person.' [Citations omitted.] 26 In the present case, the RRT used the expression 'a course of systematic conduct', or its equivalent, on three separate occasions. On each occasion, the RRT cited the observations of McHugh J in Chan. Of course, the RRT's decision in the present case was handed down long before the clarification of the law in Ibrahim. 27 On the first occasion that the RRT used the expression 'a course of systematic conduct', it seems to me clear enough that it intended to distinguish between random acts which are not directed to any particular racial or ethnic group, such as attempts to extract money from suitable victims, and selective harassment based upon the race or ethnicity of a particular person or group of persons. This involved no error by the RRT. 28 The position is, however, much less clear in relation to the second and third occasions on which the RRT used the expression. The language of the RRT in relation to the 'apparent racism' of the police officer who stopped the applicant is by no means clear. On balance, I am inclined to think that the references to 'low level police racism' were intended to incorporate a finding that the level of harassment was not significant enough to amount to persecution. 29 The third use of the expression was in the context of the RRT's acknowledgement that there had been sporadic outbreaks of communal violence in Indonesia at the relevant times and that homes and businesses owned by members of the Chinese community had often been targets of this violence. The RRT noted that the causes of the outbreaks could be political, religious or economic and that the targets could be symbols of government authority or particular ethnic or religious groups. The RRT considered that the actions of a mob in these situations 'given the diversity of motives involved' could not be regarded as forming part of the requisite 'systematic course of conduct directed against the ethnic Chinese community'. 30 Once again, the RRT's reasons are not particularly clear. It is, however, difficult to interpret the reasons as intended to suggest that the acts of violence were non-selective and did not involve conduct directed at particular ethnic groups. After all, the RRT found that the outbreaks of communal violence often targeted homes and businesses owned by the ethnic Chinese community. I think that the RRT used the expression 'a course of systematic conduct' to import a requirement of organised or methodical conduct. In my opinion, therefore, it fell into error when addressing the question of mob violence. 31 Notwithstanding that the RRT's reasons disclose a mistake of law on this issue, I do not think that leads to the conclusion that the RRT committed a jurisdictional error. The reason is that the RRT went on to find that, even if the conduct complained of by the appellant had been persecutory in nature, the Government of Indonesia neither encouraged nor condoned the outbreaks and had taken 'reasonable and effective steps to address the problem of these outbreaks of rioting'. For this reason, the RRT concluded that the appellant did not have a well-founded fear of persecution by reason of his Chinese ethnicity on the basis of the outbreaks of sporadic violence. 32 The RRT's reasoning seems to me to amount to an independent basis for the conclusion it ultimately reached. That is to say, even if the appellant feared a repeat of mob violence directed at people of Chinese ethnicity, the Government of Indonesia was willing and able to take effective steps to prevent the violence or to minimise the consequences of it. The approach taken by the RRT seems to me to be unexceptional and is in accord with the more recent authorities: Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1; Minster for Immigration and Multicultural Affairs v Respondents S152/ 2003 (2004) 205 ALR 487, at [26] - [29] per Gleeson CJ, Hayne and Heydon JJ. To use the language of the joint judgment in S152/2003,at [29], the RRT must be understood as having found: '[T]hat the information did not justify a conclusion that the government would not or could not provide citizens in the position of [the appellant] with the level of protection which they were entitled to expect according to international standards. That being so, he was not a victim of persecution, and he could not justify his unwillingness to seek the protection of his country of nationality. It was not enough for [the appellant] to show that there was a real risk that, if he returned to his country, he might suffer further harm. He had to show that the harm was persecution, and he had to justify his unwillingness to seek the protection of his country of nationality.' 33 It follows that despite errors on the part of the learned Magistrate and the RRT, the appellant has not shown that the Magistrate erred in dismissing the application for judicial review of the RRT's decision. It is therefore not necessary to consider whether, if the appellant had otherwise established that the RRT had committed a jurisdictional error, relief should nonetheless be withheld by reason not merely of his delay, but his deliberate decision to live in Australia as an unlawful non-citizen, rather than to take steps to challenge the adverse decision of the RRT. 34 The appeal must be dismissed. The appellant must pay the Minister's costs.

I certify that the preceding 34 (thirty four) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.