Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Refugee Review Tribunal - protection visa - no error - application dismissed - delay in making the application.

SZDPW v Minister for Immigration [2004] FMCA 610 (7 September 2004)

SZDPW v Minister for Immigration [2004] FMCA 610 (7 September 2004)
Last Updated: 20 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDPW v MINISTER FOR IMMIGRATION
[2004] FMCA 610



MIGRATION - Refugee Review Tribunal - protection visa - no error - application dismissed - delay in making the application.



Migration Act 1958, s.477(1)(a)

Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132 (17 May 2004)

NAUV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 124 (14 May 2004)).

Craig v State of South Australia (1995) 184 CLR 163

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65

NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003)

SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129

Applicant:
SZDPW



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1520 of 2004



Delivered on:


7 September 2004



Delivered at:


Melbourne (by video link to Baxter)



Hearing Date:


7 September 2004



Judgment of:


McInnis FM



REPRESENTATION

Applicant:


In person (by video link from Baxter)



Counsel for the Respondent:


Mr P Gray



Solicitors for the Respondent:


Refugee Advocacy Service of South Australia



ORDERS

(1) That the application filed 24 May 2004 be dismissed.

(2) The applicant shall pay the respondent's costs fixed in the sum of $5000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1520 of 2004

SZDPW


Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. In this application the applicant seeks Constitutional writs by an application filed on 24 May 2004. The application relates to a decision of the Refugee Review Tribunal (the RRT) delivered on 28 January 1997. In the application filed on 24 May 2004 a number of grounds are relied upon in support of the application. It is important to note at the outset that the applicant in this application is unrepresented. He has not provided an outline of contentions of fact and law and has otherwise endeavoured to advance on his own behalf the matters relied upon in support of his application. I make due allowance for the fact that the applicant is unrepresented.

2. It seems to me from a proper assessment of the chronology, however, that ultimately there are two core issues which have arisen in this application. The first is an issue in fact raised for and on behalf of the respondent, namely, that of delay, and it is noted in passing that the respondent had filed a notice of objection to competency on 12 August 2004 asserting that the application has been filed outside the time limit set out in s.477(1)(a) of the Migration Act 1958. The second core issue which is raised on the grounds and one which is relied upon in general terms as supporting jurisdictional error is the specific claim that in assessing whether or not the state was able to offer adequate protection to the applicant if he returned home, the RRT did not deal with that matter and therefore there was a constructive failure to exercise jurisdiction on the part of the RRT or an error of law or lack of procedural fairness.

3. It is important by way of background to set out in this application the chronology of events. The decision of the RRT was delivered on 28 January 1997. The application was filed on 24 May 2004. Despite the lack of affidavit evidence before the court filed for and on behalf of the applicant, I was prepared to hear the applicant by video-link from the Baxter Detention Centre as to any reasons he wished to advance in relation to the delay in making the application to the court. As

I understood the applicant, he has been in detention now for a total period of some six months. He had previously been in Melbourne.

4. He had indicated he was waiting for correspondence from the Minister, although it would seem clear that having received a copy of the RRT decision shortly after 28 January 1997 he was aware that one option he then had was to make application for judicial review to the Federal Court of Australia. He has indicated he was not in a position to make that application. He did not have a very good job or good source of income and otherwise could not afford to bring the application before the court.

5. The applicant is a Bangladeshi citizen. He arrived in Australia on 26 December 1990. On 3 March 1992 he applied for refugee status. That application was taken to have then been an application for a protection visa. The application was refused by a delegate of the Minister on

5 July 1996. The applicant then applied to the RRT for review and, as indicated, the RRT made a decision on 28 January 1997 affirming the delegate's decision. Apart from making the application to this court on 24 May 2004, that is, some seven years after the RRT decision, the applicant has not placed any other material before the court in support of the application. He has, however, drawn the court's attention to other material in the court book which was then available to the RRT.

6. The respondent has submitted on the issue of delay that the court should exercise its discretion to refuse relief. It is submitted that no satisfactory explanation has been provided to the court in relation to the issue of delay and in matters of this kind the court should in the exercise of its discretion, having regard to that delay, refuse to grant the application, that is, refuse to grant Constitutional writs, regardless of whether or not jurisdictional error has been made out. (See Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132 (17 May 2004) at para [4] and NAUV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 124 (14 May 2004)).

7. I should note in passing that the respondent's contentions of fact and law were only filed by facsimile with the court this morning. Similarly, it would seem that a copy was only forwarded to the applicant this day and he has indicated in court that he has not yet received the document and has not had an opportunity to read it. I have considered the document and the issues raised in the application and the matters raised by both the applicant in person and the respondent's representative. In my view, the applicant is not prejudiced by not having the opportunity to address me on the specific matters raised in the contentions as a number of those issues that are raised rely upon matters of law which in the normal course of events I would not reasonably expect the applicant to either consider and nor do I expect him to be able to make detailed submissions to this court in relation to the authorities.

8. In the circumstances, the core issues that I have identified are issues which are referred to in the respondent's outline of contentions of fact and law and they are issues which I am satisfied were known to the applicant and he has had an adequate opportunity to address those issues. It is useful, however, by way of summary to note the applicant's claims which are conveniently set out in the outline from the respondent. The summary does no more than to summarise what is already in the RRT decision.

9. The applicant claimed that he was an active politician of the Awami Juba in Dhaka City prior to coming to Australia. He claimed in writing that on 30 March 1990 the Jatiya Party made a false case of anti-state activities against him and that he was held in custody and tortured. The applicant claimed that if he returned to Bangladesh he would be gaoled for 16 years on politically inspired charges. It should also be stated that the central claim before the RRT of the applicant was that he would be imprisoned for that period of 16 years, as stated, on charges which he regarded as charges falsely brought against him for political opinions if he were to return to Bangladesh.

10. I should add that before the court this day the applicant has further relied upon what I take to be more recent information concerning his future prospects should he return to Bangladesh and has again made reference to events which have occurred in relation to close family members. It is clear from a proper reading of the RRT decision that it accepted that if the applicant had been sentenced to 16 years gaol on politically inspired charges, and that could amount to persecution for a convention reason. It is equally clear that before the RRT the applicant relied upon a number of documents including correspondence, information report, charge sheet, warrants of arrest and a Judgment of the Court of the District and Sessions Judge.

11. In addition to considering that documentary material, the RRT had the advantage of hearing oral evidence in support of the applicant that he was a politician in the Awami Juba prior to departing Bangladesh and further heard evidence of two other witnesses called for and on behalf of the applicant. Ultimately, the RRT states that it carefully considered the authenticity of the documents as well as their sources, the timing of their presentation and their contentions and formed a positive state of disbelief that the documents were genuine. That much appears at court book page 63.5, 71.10 and 73.10. The RRT then set out the basis upon which it reached that decision.

12. Further, the RRT had put to the applicant evidence concerning the primary issues during the course of the hearing. It put specifically its concerns about the evidence of the applicant. It found the documents were bogus. The RRT further considered whether the applicant would face persecution on grounds of his political beliefs if he returned to Bangladesh. It concluded that despite the evidence of the applicant's witnesses and his evidence not relating to the documents submitted, the applicant would not be persecuted for his political beliefs. It made findings in that regard.

13. It is perhaps significant to also note that by way of answer to the core issue identified as ground 4 in the application that in its conclusion the RRT states at court book page 75 the following:

"... the tribunal is satisfied that there is not a real chance that the applicant will be persecuted for his political opinions by the prevailing authorities if he returns. Further, given his affiliation with the Awami Jubo League and its relationship to the present Government, the Tribunal is satisfied that if the applicant was harassed or in any way mistreated by his former political opponents he could access the protection of the state against that mistreatment."

14. It is submitted on behalf of the respondent that in the circumstances the RRT has addressed all the relevant issues in considering the application. It is otherwise submitted by the respondent that having regard to the delay the court, in any event, should exercise its discretion, whether or not jurisdictional error is demonstrated, to dismiss the application. In the alternative, it is submitted that there is no jurisdictional error of a kind which would attract judicial review.

15. Since Plaintiff S157 when considering the issue of jurisdictional error the Court is able to rely upon the broader version of jurisdictional error identified in the High Court decisions of Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. In Yusuf McHugh, Gummow and Hayne JJ at paragraph 82 of their judgment cited with approval an extract from Craig v South Australia and stated the following:-

"82. It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)

`falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.'

`Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law."

16. It is useful to note the following extract from the Full Court of the Federal Court in SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65, per Carr J (with whom Cooper and Finkelstein JJ agreed) as follows:-

"...There is no mention in the above passage of the first sur place claim. Nor is that claim mentioned anywhere else in the Tribunal's reasoning. My assessment is that the Tribunal failed to consider the discrete, first sur place claim. This, in my view, was not (as the respondent submitted) simply a failure to refer to evidence in support of such a claim, but a complete failure to consider the claim at all. In my view, the Tribunal thereby fell into jurisdictional error of the type referred to in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. See also SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [14] and Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [79]."

17. I note a further helpful decision of Hill J in NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003). In that case the following paragraphs are relevant: -

"31 The question not decided in Plaintiff S157/2002 (because it was unnecessary to decide, other than in respect of denial of procedural fairness) is what constitutes jurisdictional error in the sense used by the High Court in that case. Clearly failure to afford natural justice will constitute jurisdictional error for that is what the High Court actually decided in Plaintiff S157/2002. However, the question of what constitutes jurisdictional error as a ground for the grant of the constitutional writs of prohibition and mandamus (or the ancillary relief of certiorari) such as to bring about the result that the decision in question is a nullity, has been the subject of discussion in a number of cases.

...

33 Gaudron and Kirby JJ noted that the question whether there was a failure or constructive failure, to exercise jurisdiction required consideration of the nature of the obligation imposed upon the Tribunal (and in relation to a decision of the Minister which was also challenged, by the Minister). Their Honours stated the effect of Plaintiff S157/2002 to be as follows (par 72):

`... [Section] 474 does not prevent the grant of prohibition, mandamus or certiorari in respect of decisions on the part of officers of the Commonwealth involving jurisdictional error for such decisions are not regarded, in law, as decisions at all and are, thus, not properly described as �a decision ... under [the] Act'. However and as also explained in Plaintiff S157/2002 v The Commonwealth of Australia, the effect of a provision such as s474 of the Act is to necessitate an examination of statutory limitations or requirements to ascertain whether, in the light of s474's restrictions on judicial review, non-observance of those limitations or requirements does or does not result in jurisdictional error.'

...

35 What matters for present purposes is not whether a failure to consider the relevant criteria would be jurisdictional error, but rather whether a failure to consider at all the case or a substantial part of the case advanced by an applicant would constitute jurisdictional error. Clearly the Tribunal has the same powers as the original decision maker within the context that the Tribunal was obliged to review the original decision and acting in the shoes of the decision maker to do again what the decision maker was required to do. The powers thus conferred upon the Tribunal likewise involve the consideration of the application against the criteria which the Act and the Regulations prescribed. It is, I think, quite clear that in the view of Gaudron and Kirby JJ, at least, the failure of the Tribunal to give consideration to the argument or case put forward by an applicant would constitute jurisdictional error and result in a decision which would not be a decision made under the Act and accordingly not be protected by s 474."

18. The Full Court of the Federal Court in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129 at paragraphs 27 and 28 relevantly states the following:-

"27 The statement that a particular error is a �jurisdictional error' is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void; Plaintiff S157 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker's lawful authority or it is not. If it falls within the decision maker's lawful authority then the error is made �within jurisdiction'. If it does not fall within the decision maker's lawful authority then the error is a �jurisdictional error' and as such it cannot be a valid action or decision.

28 In relation to statutory jurisdiction, such as that of the Tribunal, a conclusion as to the full extent of the jurisdiction granted, that is whether the decision is or is not authorised, can properly be reached only by construction of the whole of the relevant statute, in this case the Migration Act. When the statute contains a privative clause there is an inevitable tension between the privative clause and those parts of the statute that confer jurisdiction. As Gleeson CJ commented in Plaintiff S157 at [17]:

�The essential problem is the inconsistency between a provision in a statute, or an instrument, conferring a limited power or authority, and a provision which appears to mean that excess of power or authority may not be prohibited.'

Resolving that tension involves the process of reconciliation referred to by the High Court in Plaintiff S157."

19. In my view, there is no jurisdictional error demonstrated in the present application. I am satisfied that the applicant has been afforded procedural fairness and natural justice. I am satisfied that all the issues that were relevant to the applicant's case were considered and determined by the RRT. I am further satisfied that the findings made by the RRT were findings which, in any event, could be regarded as findings of fact reasonably open to it in consideration of the issues.

I find that it has considered all relevant material and indeed specifically has considered the issue of the extent to which the applicant would be able to benefit from protection of the state against mistreatment.

20. As to the consideration by the RRT of documentary material and other evidence then before it from both the applicant and two witnesses, that clearly is a matter for the RRT to consider in its fact-finding mission. On a proper analysis and reading of the RRT's decision I cannot detect any error which would be considered jurisdictional error, nor am I able to find there has been a denial of procedural fairness or natural justice.

21. Apart from concluding that there is no jurisdictional error, it is appropriate that I consider the issue of delay. I am satisfied that in appropriate cases the court does have power in the exercise of its discretion to dismiss an application based upon delay. In the present application the delay is considerable. I further find that there is no satisfactory explanation as to the reason it has taken almost seven years for the applicant to file an application in this court in relation to a decision delivered by the RRT in January 1997. In my view, in the exercise of the discretion of the court in considering an application of this kind the court does have a discretion to take into account delay and I rely upon the authorities to which reference has been made by the respondent, namely, the decisions of NAUV and the further decision of M70 of 2002 to which reference was made earlier.

22. In applying those authorities to the present application and having regard to my findings in relation to the inadequate explanation for delay, it is clear to me that on that basis alone the court would be entitled to dismiss the application. In any event, if I am wrong in relation to that conclusion, I otherwise find on the material before me that there is no jurisdictional error. Accordingly, it follows for those reasons that the application filed 24 May 2004 should be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 7 September 2004
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia