NBLG v Minister for Immigration

[2005] FMCA 734

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBLG v MINISTER FOR IMMIGRATION [2005] FMCA 734

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of the People's Republic of China – no reviewable error.

PRACTICE & PROCEDURE – Costs – indemnity costs – circumstances justifying order.

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

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FLR 225; 118 ALR 248
Gaudry & Gaudry (No.2) [2004] FMCAFam 649
SZFDW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 409

Applicant: NBLG

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1073 of 2005

Judgment of: Scarlett FM

Hearing date: 13 May 2005

Date of Last Submission: 13 May 2005

Delivered at: Sydney

Delivered on: 13 May 2005

REPRESENTATION

The Applicant: Appeared in person

Solicitors for the Respondent: Ms Warner-Knight
Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The application is not competent.

3. The Applicant is to pay the Respondent’s costs on an indemnity basis fixed in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1073 of 2005

NBLG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal.  The decision was made on 20 January 2000.  The Tribunal decided that it would affirm the decision of a delegate of the Minister not to grant a protection visa to the applicant. 

2. This application was filed on 7 April 2005.  The applicant has been held in a detention centre for a period of approximately nine months.  She did not lodge this application until about six weeks ago and the application was lodged more than five years after the RRT decision was handed down. 

3. The respondent Minister has filed a notice of objection to competency saying that the court has no jurisdiction to hear the application under the provisions of section 477(1)(a) of the Migration Act. This is because the application was lodged more than 28 days after the applicant was informed of the decision. The applicant has filed a short application in which she says:

   I don't agree with the decision made by RRT dated 24 January 2000. 

4. There are two grounds for the application.  The applicant says:

   (1)  I have well-founded fear for persecution if go back to my home country. 

   (2)  I have lost my family and everything and could not go back to my home country. 

5. The solicitor for the respondent seeks that the application should be dismissed. 

6. The facts of the application are that the applicant is a citizen of the People's Republic of China.  She is now in possession of a Chinese passport.  The home country where she says she has a well-founded fear of persecution is China. 

7. The difficulty for the applicant in this case is that she entered Australia on an Indonesian passport.  The Indonesian passport was not in her name but in an Indonesian name.  The applicant lodged an application for a protection visa claiming that she was a citizen of Indonesia of Chinese ethnicity.  She claimed a fear of persecution as a result of an incident that she said happened in a Chinese restaurant which she ran in Jakarta.  She said that she and members of her staff suffered from violence from ethnic Indonesians.  These Indonesians who are known as Pribumi are not ethnic Chinese.  She referred to racism and discrimination against ethnic Chinese people.  She referred to an incident where more than 30 people broke into the restaurant and caused serious damage. 

8. She said that most of her staff members were seriously injured and two had even died.  She claimed to have led a protest about this treatment in April 1997.  She claimed that as a result she was detained by the Indonesian government for over five months.  She claimed that she was not released until the end of September 1997.  She then entered Australia and sought a protection visa. 

9. The delegate refused the application for a protection visa so the applicant with assistance from a migration agent sought a review of that decision by the Refugee Review Tribunal.  The applicant did not attend the hearing of the Refugee Review Tribunal.  The Tribunal dealt with her application for review in her absence.  It is hardly surprising that the Tribunal was not satisfied that it should make a decision in her favour. 

10. It has since come to light that the applicant is a citizen of China. 

    
    

    She claims that she does not agree with the Refugee Review Tribunal decision.  It is hard to see what possible way that she could complain about the decision when her claim for a protection visa was based on an allegation of being Indonesian when she is not Indonesian at all but Chinese.  In any event, she did not attend the hearing.

11. In her application for a visa she claims to be able to speak, read and write Indonesian.  She told the court today that she cannot do so. 

    
    

    She said that she was only in Indonesia for a couple of months.

12. What the applicant now says is that she had two children in China. 

    
    

    Her daughter became ill and was hospitalised.  The daughter returned home from hospital at the end of 1996 but required further hospital treatment.  Because the family had very little money, she says that the hospital failed or refused to provide the daughter with treatment. 

    
    

    She said the daughter who was aged 21 died. 

13. The applicant says that she has one other child, a son, who would now be aged 22.  He would have been only about 14 years old when these events occurred in January 1997.  The applicant says that she was very angry.  She says she went to the hospital and threw a bottle at the treating doctor, injuring him.  She says that as a result the doctor sued her.  The applicant says that she went into hiding for three months and then left China for Indonesia.  She left her son in China in the care of a friend.  The applicant says that she went to Indonesia in search of a husband.  She says that she was in Indonesia for a couple of months.  During that time she met a man and married him.  She says that the marriage did not last very long, only one or two months, and they separated.  She says that she was divorced in Indonesia in about March 1998.

14. The applicant says that she obtained an Indonesian passport in another name and entered Australia on that passport.  She sought a protection visa in respect of the incidents that the application said took place in Indonesia and the matter was dealt with by the Refugee Review Tribunal on that basis. 

15. There is no reviewable error by the Refugee Review Tribunal. 

    
    

    The applicant did not attend the hearing.  The information given to the Tribunal was false and the Tribunal dealt with that information as best it could. 

16. What the applicant now wants to do is to start the process again, claiming that she fears persecution from her native China.  To my mind, it is too late.  The application is an application entirely without merit.  The applicant's account today of her troubles in China would not amount to circumstances which would allow for a well-founded fear of persecution for a convention reason.  This would be so even if I were to believe that this account was the truth compared to the now false story of being an Indonesian citizen fearing persecution in Indonesia. 

17. The application will be dismissed.  I should also rule that the application is not competent as the court has no jurisdiction to hear it. 

18. This is a matter where the court should consider costs on an indemnity basis.  The application before the court today brought by the applicant is one entirely without merit.  Her claim to the Refugee Review Tribunal was a false one as she had claimed to be Indonesian instead of Chinese and claimed to fear persecution in Indonesia rather than in China.  These proceedings were not commenced until nearly eight months after the applicant had been placed in immigration detention. 

19. The substantive application is, to my mind, an abuse of process and entirely, as I said, without merit.  I refer to the decision in Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FLR 225; 118 ALR 248 on the subject of indemnity costs. There are five grounds given for indemnity costs in the Colgate Palmolive decision.  Two of them appear to be directly relevant to this case.  The first reason is where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he or she had no chance of success.  The second ground, perhaps less relevant, is the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions. 

20. I have previously considered these matters in decisions in Gaudry & Gaudry (No. 2) [2004] FMCAfam 649 and SZFDW v Minister for Immigration [2005] FMCA 409. This, to my mind, is a clear case where costs should be awarded on an indemnity basis as it is one of the most blatant examples of abuse of process that I have seen for a number of months. Ms Knight for the Australian Government Solicitor makes a conservative estimate of those costs at $2500. That, to my mind, seems to be a very modest assessment erring on the side of caution.

21. The applicant is to pay the respondent's costs on an indemnity basis fixed in the sum of $2500. 

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

Associate: 

Date:  25 May 2005