SZEBS v Minister for Immigration

[2005] FMCA 1901

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEBS v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1901

MIGRATION – RRT decision – second application to Tribunal – no error in its denial of jurisdiction.

Acts Interpretation Act 1901 (Cth), s.8
Federal Magistrates Court Rules 2001, r.13.03A(c), 16.05(2)(a)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.426A, 483A
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629
Fernando v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 407
VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570

Applicant: SZEBS

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2343 of 2005

Judgment of: Smith FM

Hearing date: 2 December 2005

Delivered at: Sydney

Delivered on: 2 December 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms K Morgan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $5,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2343 of 2005

SZEBS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. Before me is an application filed on 24 August 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) as it stood prior to 1 December 2005.  The application seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 7 July 2005 and notified to the applicant on 13 July 2005.  The Tribunal determined that it did not have jurisdiction to entertain an application for review which had been lodged with the Tribunal by the applicant on 11 May 2005.  It will be necessary for me to trace the history of the matter further below. 

2. The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A and has restructured the Court’s jurisdiction in relation to migration decisions. However, the repeal does not affect the continuation of the present proceeding (see Sch.1 cl.41, and Acts Interpretation Act 1901 (Cth), s.8).

3. Section 483A gives the Court the jurisdiction of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). This would allow me to make orders by way of mandamus if I disagreed with the opinion of the Tribunal that it did not have jurisdiction. In the circumstances of the present case, it is unnecessary for me to consider whether the Court itself would determine the jurisdictional facts upon which the Tribunal’s jurisdiction turned, or whether it is necessary for me to identify error in the reasoning of the Tribunal on the material which was before it.

4. The history of the applicant’s claims for protection in Australia from return to his country of nationality, The People’s Republic of China, is as follows.  He arrived in Australia in January 2004.  On 25 February 2004 an application in his name was lodged with the Department.  It appears that he used an agent Yujun Simon Wu, since that agent’s postal address was given as the applicant’s address and the agent was subsequently notified of the delegate’s decision. 

5. The visa application contained a very brief statement of facts upon which protection was sought.  The applicant claimed to have worked in China for a bank and to have discovered “bribery problems within the bank”.  He said he pretended not to know about them, but in May 2003 “the Manager suspected that I had known about it and tested me about it”.  He claimed that he was then “eventually suspected to be one of the ‘Falungong’ members and was interrogated by the security department at the bank”.  He said:

   They even came to my home to search for evidence, and they declared that they found some strong evidence at my office desk.  I worried about my safety.  Getting help from my friend, I got my passport and visa to come to Australia.  I would be set up if I continued to stay in China.  I would be in jail.  I need protection from Australia.  

6. The implication from that account was that the applicant feared that he would be falsely accused of involvement in Falun Gong. 

7. A delegate refused the application on 31 March 2004, and posted the decision letter to both the stated home residential address on the visa application and also to the nominated postal address which, as I have indicated, was also his agent’s address. 

8. An application for review of the decision of the delegate was lodged with the Refugee Review Tribunal on 3 May 2004.  The form identified the agent, Mr Wu, as a person authorised to act on the applicant’s behalf and to receive correspondence.  It also stated the applicant’s previous home address.  The brief statement in the application for review said: 

   I suffered persecution from the Chinese government because I was set up by the people who were involved with bribery problems.  I was accused of being a “Falungong” member and was interrogated by the security department of the bank.  They even came to my home to search for evidence.  They would do further to me if I did not leave on time.  I hope that my application can be reassessed at RRT. 

9. By letter dated 12 May 2004, which was sent to the stated home address of the applicant, to the agent, and to the applicant at the agent’s address, the applicant was invited to attend a hearing on 2 June 2004.  On 21 May 2004 the Tribunal received a “Response to Hearing Invitation” form signed by the agent indicating a desire to attend. 

10. In reasons given by the Tribunal, which were posted to the applicant at the agent’s address on 30 June 2004, the Tribunal affirmed the delegate’s decision.  The Tribunal referred to the invitation which had been sent to the applicant, and said: 

    On 21 May 2004 the applicant advised the Tribunal that he wanted to give oral evidence.  However the applicant did not attend the hearing or contact the Tribunal to explain his failure to attend.  In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 

11. The Tribunal assessed the claims made by the applicant and said they were “vague and make little sense”.  It concluded: 

    In the context of the vague and inadequate information provided, and noting that the applicant has failed to attend for hearing to give evidence in support of his claims, I cannot be satisfied that any of his claims are true. 

12. Whether that decision of the Tribunal was a valid decision is not an issue which has been raised by the applicant in the present application to this Court.  However, it is appropriate to record my opinion that the procedures followed by the Tribunal and its reasoning do not reveal any jurisdictional error. 

13. The applicant on 28 July 2004 filed an application to this Court which received file number SZ2381 of 2004.  The timing of the application suggests that the applicant was, at least at that time, in communication with his agent so as to become aware of the Tribunal’s decision.  The ground originally pleaded was: “I was not allowed to postpone my hearing date” without details or evidence explaining this assertion. 

14. The applicant attended a first court date before a Registrar on 23 August 2004, where he had the assistance of an interpreter.  He informed the Registrar, according to a note made by the Registrar, that he did not wish to get advice under the free legal scheme since he was getting his own lawyer.  The Registrar set the matter down for hearing on 29 November 2004 before Mowbray FM. 

15. On 13 October 2004 the applicant filed an amended application whose opening complaint was: 

    I was not allowed to postpone my hearing date.  I was not given a proper opportunity to explain my case.  For some period of time, I was in Newcastle, I asked my migration agent to apply for a postponement of my hearing date.  However, I was informed by the agent that the hearing date is only changed for good reasons, and the Tribunal did not approve my application for postponement of my hearing date.  I was therefore deprived of the right of attending my hearing to explain more details of my case. 

16. The file in that proceeding contains no evidence filed in support of these assertions. The applicant did not attend before Mowbray FM on 29 November 2004, and his Honour dismissed the application under r.13.03A(c) of the Federal Magistrates Court Rules 2001. No appeal was brought against his Honour’s order, and no application was made to this court to set it aside under r.16.05(2)(a).

17. At some time prior to May 2005 the applicant was taken into immigration detention.  While in detention on 11 May 2005, he lodged a form of application for review with the Refugee Review Tribunal.  The form did not identify a decision sought to be reviewed, nor any grounds for seeking a decision by the Tribunal. 

18. On 27 June 2005 the Tribunal wrote to the applicant inviting him to comment on the proposition that: 

    even if you were seeking review of a decision which the Tribunal could review, it appears that you have not made your application for review within the prescribed time period.  

19. The Tribunal noted that it had already reviewed the decision of the delegate made on 31 March 2004. 

20. The Tribunal received on 3 July 2005 a three‑page letter which commenced: 

    I’m writing this letter for plea to the Tribunal to review my application. 

    My name is [the applicant’s name].  I became a Falun‑Gong practitioner in 1995.  Since October 1995, I never stop practise Falun‑Gong every morning and night.  July 1999, Chinese government started persecute Falun‑Gong everywhere in China.  I was one of the victims. 

21. The letter then described the applicant’s practising Falun Gong at a secret location, being arrested and tortured.  It claimed that he had in Australia gone to a female migration agent, and only had a telephone number to contact her.  It complained: 

    She didn’t keep my documents I presented to her when the application was lodged.  The last time I contact her on the phone she said to me, “I can’t find your documents, if you have new documents I only do the translate for you”. 

    I am a Falun‑Gong practitioner.  I was persecuted in China.  I came to Australia seeking asylum because I couldn’t speak English.  I was misled by my agent.  Now I end up in detention centre.  Few weeks ago I saw Chinese officer interview detainees including Falun‑Gong practitioners.  If we go back to China we will put our life at risk.  I plead to the Tribunal to review my application. 

22. The Tribunal then made the decision dated 7 July 2005 which is the subject matter of the present proceeding. 

23. In its decision, the Tribunal referred to the history of the matter, identified evidence on the Department’s file indicating that the applicant had been duly served with the delegate’s decision dated 31 March 2004.  It concluded that time had commenced to run for an application for review by the Tribunal, and that indeed his prior application had been brought within time. 

24. I can see no error in its reasoning in that respect, nor with its conclusion that the second application lodged by the applicant on 11 May 2005 was well outside any time for appealing, even if no earlier appeal had not been brought. 

25. The Tribunal declined jurisdiction on two bases. First, that it had already discharged its functions under the Migration Act to review the delegate’s decision, and secondly, that the second review application was received by the Tribunal outside the mandatory time limit. The mandatory nature of the time limit for appealing to the Tribunal is well‑established (see Fernando v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 407; VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570 at [33]; Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629 at [24]).

26. I can see no error at all in the Tribunal’s reasoning, and agree with it.  I consider that there is no basis upon which I can order the Tribunal to reconsider the applicant’s claims to be a refugee, whether they are the claims he originally made, or the starkly different claims he is now making.  It is not my function to decide which of those versions of events may be true, if either, nor is it necessary for me to investigate the inconsistent claims of misconduct by migration agents which the applicant has made in both applications. 

27. The applicant today has not presented any argument in answer to the Tribunal’s opinion about its jurisdiction.  Rather, he maintained his assertions of refugee status based on his most recent claims.  He sought further time to obtain evidence from China to present to the Tribunal in support of those claims.  However, as I have told the applicant, there is no purpose in obtaining further evidence from China to present to the Tribunal, in circumstances where the Tribunal does not have jurisdiction to reconsider his original protection visa claim and the decision made by the delegate on it. 

28. For the above reasons I must dismiss the application. 

I certify that the preceding twenty‑eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  22 December 2005