SZNEZ v Minister for Immigration & Anor [2009] FMCA 54 (30 January 2009)

Last Updated: 6 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNEZ v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 54

MIGRATION – Application for interim relief restraining Minister from exercising power under s.198(6) – whether substantive application valid – where PVA stated applicant an adherent of Falun Gong when in fact he claimed adherence to Christianity – where fraud alleged on the part of the migration agent – where six years had elapsed between Tribunal decision and application for review – where date of actual notification of decision unascertainable – whether grounds for extension.

Migration Act 1958 (Cth), ss.189(1), 477, 198(6), 91R(3)

SZKNX v Minister for Immigration & Anor [2008] FCAFC 176 SZGME v Minister for Immigration & Anor [2008] FCAFC 91 Minister for Immigration v SZIQB & Anor [2008] FCAFC 20 SZNVG v The Minister for Immigration & Anor [2008] FCA 1651 SZFDE v The Minister for Immigration & Anor [2007] HCA 35 SZLHP v The Minister for Immigration & Anor [2008] FCAFC 152

Applicant:

SZNEZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 209 of 2009

Judgment of:

Raphael FM

Hearing date:

30 January 2009

Date of Last Submission:

30 January 2009

Delivered at:

Sydney

Delivered on:

30 January 2009

REPRESENTATION

For the Applicant:

In Person

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent's costs assessed in the sum of $2,500.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 209 of 2009

SZNEZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China. Together with his wife, he arrived in Australia on 3 March 2002. He came to Australia, ostensibly, to see his son, who was studying in this country. On 17 June 2002 he and his wife lodged applications for protection (Class XA) visas with the Department of Immigration & Multicultural Affairs. On 27 June 2002 a delegate of the Minister refused to grant protection visas and on 1 August 2002 the applicants applied for review of that decision from the Refugee Review Tribunal.
2. The applicant tells that he received assistance in regard to these applications from a migration agent. I have before me, as exhibit 1, the application to the Refugee Review Tribunal. This makes no reference to a migration agent, but section D of the form is completely in English and I am prepared to accept that an immigration agent was involved at some time or another. Interestingly, because one does not often see this, section F of the form has been completed by a named Chinese interpreter. As the applicant has admitted in evidence that he signed the application to the Refugee Review Tribunal, I am prepared to accept that the form was translated to him by the named translator.
3. The applicant says that, notwithstanding that he and his wife made the application to the Refugee Review Tribunal, he did not receive a copy of the hearing invitation (exhibit 3), nor was it he who completed the response to hearing invitation, indicating that he did not want to come to a hearing.
4. On 29 January 2003 a member of the Tribunal, in a carefully reasoned decision, determined that he was unable to be satisfied that the applicant had a well-founded fear of persecution in China for a Convention reason. The Convention reason stated by the applicant, and considered by the Tribunal, was his adherence to Falun Gong. The Tribunal stated, at [24]:
   • “In the review application, the applicant merely claimed that he was persecuted by the Chinese Government because he believed in Falun Gong and practised it. He did not claim to have continued to practise Falun Gong in Australia. In the light of such lack of information, I am unable to accept the credibility of his claim.”

The Tribunal handed its decision down on 20 February 2003.

5. The applicant admitted in evidence today that his wife had been detained prior to the lodging of the application for a PVA. There is no explanation as to why he was not also detained. Furthermore, the applicant accepted that he was aware that his wife was again taken into immigration detention sometime prior to November 2004 and was, on 4 November 2004, removed from the country. The applicant himself remained in Sydney until 2007, when he moved to Perth. At no time did the applicant make an application to this Court for judicial review of the decision of the Refugee Review Tribunal, until 29 January 2009, a day after he had been advised that he would be removed at 9 pm on 30 January 2009. The applicant had been placed into immigration detention, under s.189(1) of the Migration Act 1958 (the “Act”), on 16 October 2008, in Western Australia. On that day he signed a voluntary request for removal, but he withdrew that voluntary request in November 2008 and sought ministerial intervention. The minister determined not to intervene on 28 January 2009.
6. The applicant claims that he is an illiterate who placed all his affairs in the hands of a migration agent, Mr Shi, who he had been recommended to approach by a friend, in 2002. He says that he told the migration agent that he feared persecution in China because he was a member of an underground church. He says that the migration agent asked him whether he was a Falun Gong practitioner and he told the migration agent that he was not. Notwithstanding this, it appears that the application was made, first to the delegate and then the Tribunal, on the basis that he was a Falun Gong practitioner. Section D of the form of application to the Tribunal (exhibit 1) says:
   • “I was persecuted by Chinese Government because I believe Falun Gong and practise it. I don't have any intention of overthrowing government and threatening Communist party. I strongly disagree with the decision of the department.”

I am prepared to accept that this statement was translated to the applicant by the translator who completed section F.

7. The application made to the Court on 29 January 2009 was for judicial review of the Tribunal decision made just over six years earlier. In the affidavit supporting the application, the applicant says:
   • “I had only two years of education, so, basically, I am an illiterate person. I haven't even known the letters of the English alphabet, so I was easily deceived by the migration agent, who mistook other refugee claims for mine in June 2002. The Tribunal made its decision without taking any further action to enable me to appear before it. Then I didn't know how to do [sic]. After I was detained here, the people told me I could apply to the Court for my protection visa. I implore that the officer of the Court will consider my circumstances and accept my application.”
8. The applicant's first problem is to persuade the Court that it has jurisdiction in this matter. The jurisdiction of the Federal Magistrates Court to hear migration matters is found in Div.2 of Pt.8 of the Act, commencing at s.475. In s.477 there are set out certain time limits. Under sub-s.1, there is a time limit which requires an applicant to file an application to this Court within 28 days of the actual notification of a decision.
9. “Actual notification” was considered by the Full Bench of the Federal Court in SZKNX v Minister for Immigration & Anor [2008] FCAFC 176 and now appears to require physical receipt. Section 477(2) of the Act allows the Court to extend the 28-day period by a further period of up to 56 days, if an application is made within 84 days of the actual notification of the decision and the Court is satisfied that it is in the interests of the administration of justice so to do. Section 477(3) says:
   • “Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28-day period.”
10. When s.477 was introduced into the Act, there were some transitional provisions made which had the effect of extending the time for filing an application in this Court in respect of a decision that had been made prior to a date in 2005 to 23 February 2006. Those transitional provisions would have applied to this application.
11. The minister accepts that there is no evidence before this Court that the applicant physically received the Tribunal's decision until he called for it whilst in detention in Western Australia in October or November 2008. It follows, therefore, that it would be possible for the applicant to argue successfully that he is “in time” in making this application to the Court on 29 January 2009, if he could tell the Court the date upon which he received his copy of the decision and if the Court was prepared to give the 56-day extension allowed by s.477(2). The Court would only be prepared to grant such an extension if the applicant is able to satisfy that there was a good reason for him not filing his application within the original 28 days.
12. In this case the applicant did not file his application within 28 days of receiving the Tribunal's decision; instead, he applied for ministerial intervention. My understanding of the general practice adopted by the department in relation to applications of ministerial intervention is that they will not be considered when there is an application to a Court for judicial review. In these circumstances, if I had any evidence that would satisfy me that the application was made within the discretionary period, I would have granted the extension of time, but the applicant has not provided me with any such evidence and Ms Pownall, who appears on behalf of the Minister, is unable to assist. Given the admonition contained in sub-para.477(3) of the Act, I would be exceeding my jurisdiction if I granted the applicant the extension he requests, and I would therefore dismiss the application on this basis.
13. At the commencement of these proceedings, the applicant indicated that, although he had not said so in the application, he wished the Court to grant him an injunction restraining the Minister from deporting him pursuant to s.198(6) of the Act this evening. That request for interim relief would only have validity if the application upon which it was based was a valid application, and, as I have found that it was not, the interim application must itself be dismissed.
14. In the event that I am wrong in my interpretation of the time limits and my inability, in the absence of evidence, to grant the applicant the extensions he requests, I would say that, had the application been valid, and thus the application for interim relief been valid, I would have declined to grant the application for interim relief on discretionary grounds.
15. This application is made six years after the decision of the Tribunal. In SZGME v Minister for Immigration & Anor [2008] FCAFC 91, Black CJ and Allsop CJ said, at [51]:
    • “Though the delay in bringing the application concerning the decision here is not “unwarrantable”, in that it was about 50 days' late, it was made in the context of eight years passing from the time of the Tribunal's decision. The applicant chose to take no step to address his position, having himself invoked the executive authority to undertake a consideration of the merits of his claim. That conduct, the invoking of the consideration by the Tribunal of the merits of his claim and waiting eight years to deal with his own circumstances, is inconsistent with the relief he now seeks ... The applicant chose, partly out of fear, not to approach the department to clarify his position. Eight years later, however, he wishes to invoke again the machinery of the executive to consider, again, his claims on their merits.
    • [52] In our view, this prior conduct is inconsistent with the relief he now seeks. It also reflects a long delay in taking the steps that gave rise to the need for primary relief sought.”
16. Delay was also considered by the Full Bench of the Federal Court in Minister for Immigration v SZIQB [2008] FCAFC 20, where the Court overturned a view expressed by this Court that delay in itself is not inimicable to an application for protection. At [30], their Honours, Branson, Emmett and Bennett JJ, said:
    • “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.”

This view was supported by SZNVG v The Minister for Immigration & Anor [2008] FCA 1651.

17. In the instant case, I have no real explanation for the delay. I questioned the applicant myself, prior to his cross-examination by Ms Pownall. I elicited from him the information that he was well-aware of the fact that his wife had been detained and that his wife had been deported. I find it implausible that the applicant would not thus have been made aware that the Tribunal had concluded its determination of his application, an application he knew that he had made. If he knew in 2004 that the application had been determined unfavourably to him and his wife, why did he do nothing thereafter? The applicant told the Court that it was because he was illiterate and did not understand. He told the Court that he had placed all matters in the hands of his migration agent but it seems to me to show little regard for the fear he allegedly had of returning to China that he did not make any further inquiries, approach another migration agent, approach friends, or his son, who was still studying here at that time and who, he tells me, remains in this country. The applicant's failure to take any steps until he was finally detained indicates to me a lack of conviction of his right to invoke the protection obligations that Australia undertook by its signature to the Refugee Conventions and its passing of the Migration Act.
18. My views on this matter are further reinforced by the applicant’s responses to questions that I put to him concerning his wife. He is still in communication with his wife in China and, whilst she has told him not to return, she is under no threats herself it would appear.
19. In SZIQB, at [24], the Full Bench said:
    • “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 it within the ambit of the Refugees Convention and where the persecution allegedly feared by him is serious harm within the meaning of s.91R of the Act.”
20. The applicant has provided me with nothing by way of evidence concerning his adherence to Christianity within an underground church that would indicate serious danger within s.91R(3) of the Act. He did say that he had been detained once, for a week, and that other relations of his had been detained, but he did not tell me when that was, or what the reason for it was, or why he believed that, if he returned to China now, the same fate might befall him. Likewise, I am still faced with the concern alluded to by Ms Pownall that the applicant knowingly completed a form, claiming an adherence to Falun Gong, and I believe that there is much in her argument that the alleged fraud of the migration agent would not fall within the matters considered by the High Court in SZFDE v The Minister for Immigration [2007] HCA 35, particularly given that an argument could be made that the applicant himself colluded with the migration agent by signing an application form referring to Falun Gong; SZLHP v The Minister for Immigration [2008] FCAFC 152.
21. For all these reasons, I do not believe that this is a case in which a Court should exercise its discretion to grant the injunctive relief sought, and, if it was permissible for the Court to consider the application, including the interim application, I would dismiss it.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 3 February 2009