SZFBE v Minister for Immigration
[2005] FMCA 618
•27 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFBE v MINISTER FOR IMMIGRATION | [2005] FMCA 618 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision not to grant a protection visa to the applicant – applicant a citizen of the People’s Republic of China – claim to follow Falun Gong belief – where Tribunal requested further information from applicant under s.424 of the Migration Act 1958 but no further information forthcoming – no reviewable error. PRACTICE & PROCEDURE – Objection to competency – RRT decision was handed down on 20 March 2002 and the Applicant was notified – the applicant did not apply to the Federal Magistrates Court until 19 November 2004 – application is over two years out of time – where applicant failed to make an application within 28 days of being notified of the decision of the RRT. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424, 474, 475A, 477
| Applicant: | SZFBE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 3385 of 2004 |
| Delivered on: | 27 April 2005 |
| Delivered at: | Sydney South |
| Hearing date: | 27 April 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is not competent and that the Court has no jurisdiction to hear it.
The Application is dismissed;
The Applicant is to pay the Respondent's costs fixed in the sum of $4,800.00.
The Registrar is to forward a copy of this decision and a copy of the transcript of proceedings to the Migration Agents’ Registration Authority.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3385 of 2004
| SZFBE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for a review of a decision of the Refugee Review Tribunal made on 25 February 2002 and handed down on 20 March 2002.
In that decision, the Tribunal affirmed the decision of a Delegate of the Minister not to grant a Protection Visa to the Applicant.
The Applicant is a citizen of the Peoples' Republic of China who first arrived in Australia on 12 August 1998. He remained in Australia until 29 December 1999. On 19 January 2000, he re-entered Australia. On 27 February 2001, he applied for a Protection Visa. He included with his application, a letter dated 17 February 2001 from his migration agent who said this:
The Applicant has been advised the application for Protection XA Visa (sub-class XA) would have a very low probability of succeeding. The Applicant has insisted for the application to proceed further.
The Applicant claimed that he had a well-founded fear of persecution on the grounds that he was a follower and practitioner of Falun Gong. On 12 April 2001, a Delegate of the Minister refused the application.
The Applicant lodged an application for review of the decision of the Delegate on 14 May 2001. In his application, he gave both a home address and an address for service which was a city address.
On 24 January 2002, the Refugee Review Tribunal wrote to the Applicant at his address for service asking him for more information about his claim. The letter was returned unclaimed.
The Tribunal also sent a copy of the letter to the Applicant at his home address. No reply was received.
The Tribunal said in its decision that an Officer of the Tribunal tried to contact the Applicant by telephone, but was advised that the number given was incorrect. The Tribunal also said that the Officer contacted the Applicant's agent, but was advised that the agent was unable to contact the Applicant (see page 76 of the Court Book).
The Tribunal decided that it would proceed to a decision without offering a hearing, relying on s.424 of the Migration Act. The Tribunal's reasoning is set out on page 77 of the Court Book:
The Applicant has had nine months in which to present further material to the Tribunal if he wished. He has failed to respond to the Tribunal's request that he provide further specific information which might support his claim. His agent advised that she is unable to contact him. This suggests to the Tribunal that an invitation to a hearing would, in all likelihood, prove fruitless.
The Tribunal then went ahead and considered the Applicant's claim. The Tribunal was not satisfied from the material that the Applicant was a Falun Gong practitioner. The Tribunal did not accept that the Applicant would have travelled to China in late 1999 when the crackdown against the Falun Gong was well under way if he was at risk of persecution at that time.
The Tribunal also said:
Moreover, had the Applicant returned to Australia in January 2000 in genuine fear of persecution, one would have expected him to have applied for protection fairly soon after his return. However, he did not apply for protection until 27 February 2001, more than 13 months later. The Tribunal inferred from the Applicant's failure to seek protection soon after his arrival in January 2000 that he does not have a genuine fear of persecution[1].
[1] Court Book, page 78
The Tribunal noted that the Applicant made no other claims except about Falun Gong. As the Tribunal was not satisfied, it affirmed the decision not to grant a Protection Visa.
The grounds of the application
The Applicant filed an amended application on 21 March 2005. I note that counsel for the Respondent prepared the Respondent's outline of submissions without the benefit of that document. Counsel for the Respondent, Mr Potts, noted that the Applicant was directed to file an amended application by 25 February 2005. The grounds of the amended application are these:
(1)procedures that were required by law to be observed in connection with the making of the decision were not observed;
(2)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(3) that the decision involved an error of law, whether or not the error appears on the record of the decision;
(4)the decision was otherwise contrary to law;
(5) the Tribunal made error in law in that decision.
There is no evidence to support it [sic] that opinion.
The Applicant has not filed any affidavit or outline of any submissions giving particulars of the above claims.
Notice of Objection to Competency
The decision was handed down on 20 March 2002. The Applicant did not file his application until 19 November 2004. The Respondent has filed a Notice of Objection to Competency.
The Notice which was filed on 1 February 2005 says that the Respondent objects to the jurisdiction of the Court to try the application on the ground that the decision is a privative clause provision within the meaning of s.474 of the Act. Under the provisions of s.477 (1A) of the Act, an application to the Court for review of a privative clause decision must be made within 28 days of the notification of the decision. The Respondent says that the Applicant has failed to make an application within the required 28 days.
The application came on for hearing in this Court on 5 April 2005. The Applicant made a number of oral submissions. During the course of the Applicant's submissions, it became clear that the Applicant was making allegations about the behaviour of his original migration agent and the migration agent who took over from him.
For that reason, I made the decision that the Applicant should give evidence on oath or affirmation. In the course of his evidence-in-chief to the Court, the Applicant made it clear that the signature on the declaration on the application for review to the Refugee Review Tribunal was not his signature. A copy of that signature appears on page 45 of the Court Book.
The Applicant also made it clear that the signature on the declaration that accompanied his application for a Protection Visa was not his signature. Those answers are set out at page 4 of the transcript and the signature on the application for a Protection Visa appears on page 24 of the Court Book.
I then permitted counsel for the Respondent to cross-examine the Applicant. Mr Potts asked the Applicant to write his own signature on a piece of paper and the Applicant did so. That document was then tendered and I admitted it into evidence as Exhibit 1. It is clear that the Applicant's signature on exhibit 1 bears no relation to the signatures that appear on pages 24 and 45 of the documents in the Court Book.
In the course of his cross-examination by Mr Potts, the Applicant said that he went to see a migration agent, but the migration agent ran away. The name of that migration agent was Mr Chu. The Applicant said that he saw that man once and provided him with information necessary for him to obtain a visa.
He said he asked Mr Chu to prepare an application for a Protection Visa, but the man ran away with his passport and the money that he gave him. Mr Chu did not ask the Applicant to sign any documents.
The Applicant had written down relevant information on a sheet of paper and he gave that to Mr Chu. The address where the Applicant met Mr Chu was 413 to 415 Sussex Street, Sydney. He said that Mr Chu was able to speak and read Chinese and he spoke to Mr Chu in the Mandarin language.
The Applicant said that he tried to contact Mr Chu again, but Mr Chu had gone. He tried contacting him by telephone, but failed. He said, at page 13 of the transcript:
I rang him every day and whenever I went to the city, I would visit him. I saw a lot of letters outside his office door, but there was nobody.
The Applicant said that he became aware that the Department had refused his application for a Protection Visa when he was arrested. When asked if he was aware that an application had been made to the Refugee Review Tribunal in 2001 to review a decision, the decision not to grant a visa, the Applicant said that he was not saying that he did not know about, he was saying that he could not remember it because it was too long ago.
He was shown the application for review to the Refugee Review Tribunal, but said he could not remember whether he had seen it before. He said that he was not aware that the Minister had refused to give him a protection visa, so he only guessed. He said that the agent had told him that he would be illegally staying in Australia after one year, because if he got a visa it would expire in a year.
He said that during the first or second year when he was in Australia, he guessed that he was in Australia illegally. He said that he knew a lot of people with the same background who had also applied for this type of visa and they told him that their visa would expire in one year.
He said he had never received any communication from the Department of Immigration of anyone else telling him that he was not successful in getting a Protection Visa. He said at page 16 of the transcript, that after Jun ran away with all his documents, there was another company who took the tenancy of Chu Jun's address and he engaged that company to continue his case.
He said that the other migration agent was named Zhang Wong Heng. He showed the Court a copy of a card with that person's name on it. That person is a woman. The Applicant said that he saw her several times. He first met her when he was trying to contact Mr Chu and get his passport back.
He gave Ms Heng money to obtain a Protection Visa for him. He could not remember whether he told Ms Heng to make an application to the Refugee Review Tribunal. He reiterated that he had not seen the documents that were shown to him earlier and that he did not recognise the signatures on those documents. He said he authorised Ms Heng to put forward his application, but she did not say anything about any documents having to be signed.
That then is the evidence before the Court. The circumstances involving the dealings with the migration agents cause a great deal of concern and in my view, the Migration Agents Registration Authority should be advised.
The application shows no grounds for review of the decision of the Refugee Review Tribunal. The Applicant did not attend and according to him he never knew the hearing was on. That is hardly the fault of the Tribunal.
I have examined the decision and there is no reviewable error. As there is no reviewable error, the decision is protected by sub-section 474(2) of the Migration Act, the privative clause decision. As it is a privative clause decision, the application is out of time. To use the technical phrase, it is not competent. The application was made more than 28 days after the purported, at least, notification of the decision.
The Applicant was aware of the decision at the very least when he was taken into custody. The application must be dismissed and I propose to make the following orders.
This is a matter where it is appropriate to make an order for costs and the amount of costs sought, namely $4,800 is certainly within the scale proposed by the Federal Magistrate Court Rules.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V Lee
Date: 11 May 2005
0
0
0