FEDERAL COURT OF AUSTRALIA

SZHFW v Minister for Immigration & Multicultural Affairs [2006] FCA 480

SZHFW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 242 OF 2006

MADGWICK J

12 APRIL 2006

SYDNEY

THE COURT ORDERS THAT:

1.       The appeal be dismissed with costs assessed in the sum of $3600.

REASONS FOR JUDGMENT

HIS HONOUR:  

1                     The appellant has appealed from a decision of the Federal Magistrates Court given by Federal Magistrate Smith on 10 February 2006.  His Honour dismissed the appellant's amended application for review of a decision of the Refugee Review Tribunal (‘Tribunal’), which had been handed down six years earlier, on 27 January 2000, and ordered the appellant to pay the first respondent’s costs.

2                     The appellant’s account was that he had come to Australia from the People’s Republic of China and, arising out of an investment in an apparently unsuccessful business, he was liable to make payments to the Chinese government.  He said that a disproportionate amount had been demanded of him and he declined to pay more than was appropriate for him to pay.  A ‘director’ of the business took revenge on him by reporting him to the authorities for having two children, contrary to the well-known one child policy.  He claimed that he was fined a substantial amount and was told that he would be fined a similar amount each successive year until the child reached the age of 18 years and was ‘able to pay it himself’.  Accordingly, he had decided to escape from China.

3                     In 1988 a delegate of the first respondent refused his application for a protection visa because his claims were not based on a convention reason.  The delegate followed Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225. 

4                     After the appellant lodged his application for review by the Tribunal, the Tribunal, by a letter of 25 November 1999, purportedly acting under s 424 of the Migration Act 1958 (Cth) (‘the Act’), required the appellant to provide certain documents and information before 16 December 1999 and warned him that if he did not do so the Tribunal might make a decision on the review of his case without further notice.  Nothing was heard from the appellant and the Tribunal proceeded to decide the application without inviting him to attend a hearing.  The Tribunal also reasoned that the appellant had not faced persecution for a convention reason and affirmed the delegate’s decision.

5                     In the lower court his Honour found no jurisdictional error in the Tribunal’s reasoning, but took the view that the letter which had been sent to the appellant did not comply with the requirements of s 424B(2) of the Act, and that the Tribunal had fallen into jurisdictional error by not inviting the appellant to attend the hearing.  His Honour also made an alternative finding that the decision was affected by jurisdictional error because his Honour was not satisfied that the appellant had not given information before the time for giving it had passed. 

6                     His Honour then came to the reason for refusing relief to the appellant. He said at [47]:

‘Prior to the hearing, the applicant presented no evidence to explain his delay.  At my invitation, he gave sworn evidence…he conceded that he received the Tribunal’s decision…He then understood that his application was refused.  This happened at some date in 2000.  He kept the Tribunal’s decision in his possession until recent times when it was lost.  At no time before he was taken into detention on 19 September 2005 did he seek advice from anyone expert in migration practice or law.  The only step he took to regularise his illegal status was to apply for a bridging visa ‘last year’.  I conclude from his evidence that at some point, probably during 2000, he abandoned any real effort to identify and pursue his rights to obtain a protection visa, and decided to protract his residence in Australia by remaining unlawfully and avoiding contact with the Department of Immigration.

7                     His Honour continued at [48]:

‘I do not consider that his evidence provided any satisfactory explanation for a delay which, in my opinion, should be characterised as ‘unwarranted’ and ‘inexcusable’ from the perspective of judicial review of administrative action.  Accepting that the applicant may have faced some cultural and economic difficulties if he had sought to obtain immigration advice, I am not prepared to assume nor find that qualified sources of free or professional advice were unavailable to the applicant over all the years prior to his being taken into detention.’

8                     His Honour then considered the principles which should govern a discretionary refusal of relief.  He noted that following Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 (‘Aala’), at [51]-[52] and [149] (which adopted the reasoning of Gibbs CJ in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185), that (at [49]):

‘Although [where jurisdictional error has been made out relief will issue “almost as a right”] the court retains its discretion to refuse relief if in all the circumstances that seems the proper approach [and that] reasons which may be relevant are delay, waiver, acquiescence… [in particular] where the issue of the writs would involve disproportionate inconvenience and injustice’.

9                     His Honour further considered the matter in a way which appears to have acknowledged correct principle and said at [52]:

‘In the absence of an acceptable explanation, in my opinion it is “just” for the Court to refuse to allow an applicant to take years before deciding to challenge the validity of an administrative decision.  A public interest in insisting upon promptness in challenges to such decisions is clear.’

10                  His Honour included a reference to remarks of McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495-6, subsequently applied in this Court, and continued at [53]:

‘I do not consider that refugee claims are in a special class, in which considerations of delay are irrelevant or disregarded.   As a recent history of migration litigation in this and other Federal courts demonstrates, the unlimited opening up of judicial review of old decision on refugee status can seriously hamper the ability of the courts to provide a speedy determination of the validity of decisions concerning current refugee claims.  In the present matter, there is an air of unreality about reviewing the legal validity of a decision on a claim for refugee status which was made more than seven years ago, at least, in the absence of evidence that the claim has relevance to the current circumstances of the claimant and his country of nationality, and that the applicant has any prospect of obtaining the visa which he claimed.’

11                  His Honour concluded (at [54]):

‘In my opinion, balancing all the circumstances shown in the evidence before me, and notwithstanding my finding of jurisdictional error by the Tribunal, the proper exercise of my discretion should cause me to refuse relief in this case.’

12                  I should add that his Honour did not overlook (at [50]) ‘...the high purposes of vindicating the public law of the Commonwealth’ referred to in Aala, and, (at [51]) a consideration mentioned by Gray J in Applicants M16 of 2004 v Minister of Immigration and Multicultural and Indigenous Affairs [2005] FCA 1641 at [76], namely the:

‘...possible appearance of anomaly where a Court makes the finding of jurisdictional error affecting a past administrative decision, but denies a remedy to enforce that finding’.

13                  His Honour correctly perceived the relevant principles.  Further, the delay was even more egregious than he appreciated and was unexplained, so that it was a legitimate conclusion that the appellant had simply opted to follow the road of living in Australia, as it were, underground and unlawfully. 

14                  In these circumstances it is not possible to say that his Honour’s discretion miscarried.   In accordance with the well-known principles, there is no basis for this Court to interfere unless it is shown that his Honour misapprehended the facts or some relevant principle of law or propriety in exercising his discretion. 

15                  It follows that the appeal must be dismissed with costs.  Costs are assessed in the sum of $3600.

Associate:

Dated:              4 May 2006