SZQHG v Minister for Immigration & Anor [2011] FMCA 449 (9 June 2011)

Last Updated: 16 June 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQHG v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 449

MIGRATION – Visa – Protection Visa – application for review – application for order that the time for making application for review be extended – factors for consideration in extension of time application – whether in the interests of the administration of justice – delay not satisfactorily explained – whether merit in application – substantive application lacks merit – not in the interests of administration of justice to grant extension of time – application for extension of time refused – application dismissed.

Migration Act 1958 (Cth), ss.48B, 417, 426A, 477

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 distinguished SZLHP v Minister for Immigration and Citizenship & Anor [2008] FCAFC 152; (2008) 172 FCR 170 followed SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 followed WZANW v Minister for Immigration & Anor [2009] FMCA 1075 followed

Applicant:

SZQHG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1118 of 2011

Judgment of:

Scarlett FM

Hearing date:

9 June 2011

Date of Last Submission:

9 June 2011

Delivered at:

Sydney

Delivered on:

9 June 2011

REPRESENTATION

The Applicant:

In person

Solicitors for the Respondents:

Ms Rayment, Sparke Helmore

ORDERS

(1) The Application filed on 2 June 2011 for an order extending the time for making an application for review of a decision of the Refugee Review Tribunal made on 12 December 2000 and handed down on
10 January 2001 is refused.
(2) The Application for review of the decision of the Refugee Review Tribunal made on 12 December 2000 and handed down on 10 January 2001 is dismissed.
(3) The Applicant is to pay the First Respondent’s costs fixed in the amount of $2,500.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1118 of 2011

SZQHG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal that was made on 12 December 2000 and handed down on
   10 January 2001. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a protection visa.
2. The Application is out of time. The Applicant has applied for an order that the time for making the application be extended under s.477 of the Migration Act. He gives these reasons:
   • 1. At first, I had been cheated by my agent and then, I began to worry about deportation.
   • 2. In June 2009, I lodged an application to the Minister for intervention and his permission to allow me to apply for protection again with my real claims on Christianity Grounds. That application was refused.
   • 3. I had no money to engage a lawyer to assist me. My friend contacted the NSW Bar Association last week and was told to fill out a form for a duty barrister. I was then arrested and detained by the Department of Immigration on Monday this week when I attended their office with a hope to renew my bridging visa because I could not travel due to my physical and mental illness.
3. This application is opposed by the Minister, who has filed a Response setting out these grounds:
   • 1. The Court has no jurisdiction to review the Refugee Review Tribunal decision dated 12 December 2000. Subsection 477(1) of the Migration Act 1958 (Cth) applies and the application to this Court was not filed within 35 days of the date of the Tribunal decision. The application for an extension of time pursuant to s. 477(2) is opposed.
   • 2. The application for judicial review does not raise an arguable case for the relief claimed pursuant to Part 44.12 of the Federal Magistrates Court Rules.
   • 3. The application for judicial review does not establish any jurisdictional error in the decision of the Refugee Review Tribunal dated 12 December 2000.
   • 4. The application should be dismissed in the exercise of the Court’s discretion because of the applicant’s unexplained and unwarrantable delay in bringing the application.
   • 5. (Not relevant)

Background

4. The Applicant has given oral evidence.
5. He is a citizen of China. In about May 1999, because he wanted to work in Australia, he agreed to pay a Mr Zhu a sum of money to find him long term employment, apply for an Australian visa and arrange for his travel from China to Australia.
6. In February 2000 the Applicant and a number of other people left China for Malaysia. They were met by Mr Zhu, who told the applicant that he would have to travel to Australia under an assumed name, Zheng You Qiang. He was given a passport with that name in it but his photograph.
7. The Applicant travelled to Sydney on the false passport, using the false name. Mr Zhu arranged for the Applicant to work in a factory.
8. The Applicant provided a statutory declaration dated 17 June 2009, which was used to support an application to the Minister, in which he set out that he was told by Mr Zhu that he had to apply for a refugee visa, which Mr Zhu would arrange. He did not sign any application and did not know about an application to the Refugee Review Tribunal that was made on 3 May 2000.
9. The application for review by the Refugee Review Tribunal was listed for hearing on 18 August 2000. The Applicant did not attend. The application for review was made in the false name that had been used on the Applicant’s false passport. The Tribunal proceeded to make its decision on the review without taking any further action to enable the Applicant to appear before it, using its powers under s.426A of the Act.
10. The Tribunal considered the claim by the applicant “You Qiang Zheng” for protection because of a fear of persecution on the ground that he was a member of a sect called Yi Guan Dao. That claim was entirely false.
11. The Tribunal was not satisfied that “You Qiang Zheng” had a well founded fear of persecution within the meaning of the Refugees Convention and affirmed the delegate’s decision not to grant
    “You Qiang Zheng” a protection visa.
12. On 6 February 2001 a letter purporting to be from “You Qiang Zheng” was written to the Minister, seeking ministerial intervention.
    The Applicant says that he was unaware of this.
13. The Applicant stated in his statutory declaration that some time in 2001 Mr Zhu told him his application for a visa had been refused.
    He approached a lawyer/migration agent in Sydney, who suggested that he join a class action. He paid a fee to join the class action but after a few months was unable to find the lawyer/migration agent again.
14. The Applicant remained in Australia.
15. Early in 2009, the Applicant contacted his present migration agent,
    Mr Chan, who made inquiries about his migration status and obtained copies of the various applications that had been submitted on his behalf.
16. Mr Chan arranged for the Applicant to apply under his real name to the Minister under section 48B of the act for permission to lodge a fresh application for a protection visa, claiming a fear of persecution on the ground of being a Christian. He also applied for Ministerial intervention under s.417 of the Act. These applications were unsuccessful.
17. The Applicant was scheduled to leave Australia on 29 May 2011 and held a Bridging Visa E that expired on that date. He did not leave Australia. On 30 May 2011 he attended the office of the Department of Immigration and Citizenship and sought to extend his Bridging Visa. He was detained and held in the Immigration Detention Centre at Villawood.
18. On 2 June 2011 the Applicant filed his Application to review the decision of the Refugee Review Tribunal and for an extension of time in which to do so.

Submissions

19. The Applicant submitted that he had been unfairly treated by the Australian Government because he had been denied the opportunity to have his refugee claim reviewed by the Refugee Review Tribunal.
    He maintained his claim that he was unaware until 2009 that the Refugee Review Tribunal had refused his application. He agreed that he had applied to join the class action in 2001 but said that he was not aware about the RRT decision at that time. He did not know how the system worked.
20. The solicitor for the Minister, Ms Rayment, submitted that whilst the Applicant had complied with s.477(2)(a) of the Act by making a written application for an extension of time and specifying why he considered it necessary for the Court to make an order extending the time, it was not necessary in the interests of the administration of justice to make that order.
21. First, the delay was extensive. The deemed date of the Tribunal decision for the purpose of s.477 is 15 March 2009 (although the actual date is 12 December 2000) and the last date for filing an application for review would therefore have been 19 April 2009. Thus, the Application is over two years out of time, which is a significant delay.
22. Second, the evidence does not provide a satisfactory explanation of the delay. The Applicant did not inquire about the contents of his application for a visa. He was aware in 2001 that his application for a visa was unsuccessful. He was aware that there had been a Tribunal decision, as witness his application to join the class action in 2001.
    He had also given evidence that he saw a lawyer in 2006 about obtaining a business visa, so it is inconceivable that his visa status would not have been discussed with the lawyer.
23. Third, it was submitted that there was no merit in the substantive application (see WZANW v Minister for Immigration & Anor[1]).

Delay

24. Section 477 of the Migration Act provides a time limit of 35 days from the date of the Tribunal decision in which to file an application for review of that decision. The Court may extend that 35 day period if:
    1. an application applies in writing for extension of that period and specifies why it is necessary in the interests of the administration of justice for the Court to make an order extending the time (s.477(2)(a)); and
    2. the Court is satisfied that it is necessary in the interests of the administration of justice to make that order (s.477(2)(b)).
25. The Court has considered on a number of occasions the factors for consideration in deciding whether it is in the interests of the administration of justice to extend the time for making an application. They are:
    • 1. The extent of the delay and the reasons for the delay.
    • 2. Whether there is any merit in the application.
    • 3. Whether there is any prejudice to the respondent.
    • 4. The impact on the applicant.
    • 5. The interests of the public at large.
    • 6. The Court’s discretion itself.[2]

Conclusions

26. The extent of the delay is significant. Under the law as it stands, the application should have been brought by 19 April 2009, so the delay is more than two years. In reality, of course, the decision is over ten years old, although the deemed date is the operative date for the Court’s consideration.
27. I am not satisfied that the Applicant has provided a satisfactory explanation. He was aware in 2001 that his visa application had been refused. He applied to join a class action in that year. It beggars belief that he was not aware that there was an unfavourable Tribunal decision. He also stated in his statutory declaration of 17 June 2009 that he deliberately did not bring himself to the attention of the Department of Immigration and Citizenship because he feared the consequences:
    • ...I was very scared for having become an illegal person without a valid visa because I had to work to earn money to pay back the debt I owed to other people in China...
    • ...Therefore, I continued to stay in Australia because I did not have courage to approach the department for rectification of my visa. I also had fear that the department would deport me once I turned up to them.[3]
28. On his own evidence, the Applicant became aware through the services of Mr Chan in 2009 that there had been a Tribunal decision. He applied to the Minister under sections 48B and 417. Even then, he did not seek to file an application to the Court.
29. The Applicant only filed his application on 2 June 2011, after he had been detained.
30. The Applicant has not established a satisfactory explanation for the lengthy and unwarranted delay in bringing an application for review of the decision of the Refugee Review Tribunal.
31. If an extension of time were granted, there would be some prejudice to the respondent, due to the time to be taken and the cost of defending the application.
32. The impact on the Applicant of the refusal of his application for an order extending the time for him to apply to the Court for review of the Tribunal decision would mean that his application for review of the Tribunal decision would fail, as it would not be competent.
33. In considering the merits of the substantive application, the nature of the application to the Refugee Review Tribunal and the circumstances in which it was made would render the application for review of the RRT decision futile.

The Application for Review of the Decision of the Refugee Review Tribunal

34. It is important to understand what it is that the Applicant is seeking to do in his substantive application. He is applying to review a decision of the Refugee Review Tribunal affirming the decision of the delegate not to grant a visa arising out of a spurious application in a false name.
35. The Applicant knowingly entered Australia on a false passport in a false identity. He sought a visa that would enable him to work in Australia. He did not make a refugee claim. An application was made by someone else for a protection visa in the Applicant’s false identity relating to a fictitious claim of having a well founded fear of persecution by reason of being a member of a sect called Yi Guan Dao.
36. The Applicant did not attend the Tribunal hearing. It would not have availed him if he had. Had he attended, the Applicant would have had only two options:
    1. maintain the deception and lie about his identity and his fictitious claim; or
    2. reveal his true identity and confess that he did not have a fear of persecution as a member of the Yi Guan Dao.
37. In neither case would the Tribunal have granted his application. What utility would there be, even if the Court were to find jurisdictional error, in remitting a false application to the Tribunal for rehearing?
38. There is no jurisdictional error. This is not a case of fraud on the Tribunal as set out in SZFDE v Minister for Immigration and Citizenship[4]. In my view that decision can be distinguished.
39. The facts of this case are more in line with those in SZLHP v Minister for Immigration and Citizenship & Anor.[5] The Applicant was a party to the deception when he entered Australia on a false passport with a false identity. He had no refugee claim, even though he now claims to have one now. A false application was made for a protection visa which was refused. A false application for review was made to the Refugee Review Tribunal, which was refused.
40. The application for review of the decision of the Refugee Review Tribunal is without any merit. It cannot possibly succeed.
41. For all of these reasons, I am not satisfied that it is necessary in the interests of the administration of justice to make an order extending the time to make application for review of the decision of the Refugee Review Tribunal.
42. It follows that the substantive application is out of time and is therefore not competent.
43. The application will be dismissed with costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 14 June 2011

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[1] [2009] FMCA 1075
[2] SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 per Nicholls FM at [44]; followed by Lucev FM in WZANW v Minister for Immigration & Anor [2009] FMCA 1075 at [26]- [27]
[3] Applicant’s statutory declaration 17.6.2009
[4] [2007] HCA 35; (2007) 232 CLR 189
[5] [2008] FCAFC 152; (2008) 172 FCR 170