SZGIY v Minister for Immigration

[2007] FMCA 1133

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGIY v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1133

MIGRATION – RRT decision – credibility finding based on delay in applying for protection – whether dating information given to Tribunal – no breach of s.424A established – refusal of relief for delay in seeking judicial review – earlier application discontinued – second application to Court – application to reinstate first application – all relief refused.

Federal Magistrates Court Rules 2001 (Cth), rr.13.01, 13.01(2)b, 16.05(1)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.417, 424A, 424A(1), 424A(3)(b), 476, 477, 483A, 486A

Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155
Bodruddaza v Minister for Immigration & Multicultural Affairs (2007) 234 ALR 114, [2007] HCA 14
Christodoulou v Disney Enterprises Inc (2006) 156 FCR 369
NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
SZABG & Anor v Minister for Immigration & Anor (No.2) [2007] FMCA 1062
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214
SZHYP v Minister for Immigration & Citizenship [2007] FCA 183
SZICV v Minister for Immigration & Citizenship [2007] FCAFC 39

Applicant: SZGIY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Numbers:

SYG1309 of 2005

SYG1268 of 2007

Judgment of:	Smith FM
Hearing date:	9 July 2007

Delivered at: Sydney

Delivered on: 9 July 2007

REPRESENTATION

Counsel for the Applicant: Mr M Gibian

Counsel for the First Respondent: Mr G Kennett

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The applicant has leave in SYG 1309 of 2005 to file an Application in a Case in the same terms as the Notice of Motion filed in SYG 1268 of 2007, and dispense with all relevant rules so as to allow that application to be heard instanter. 

2. In both proceedings, the interim application filed on 25 June 2007 is refused. 

3. The application in SYG 1268 of 2007 is dismissed as incompetent. 

4. The applicant must pay the first respondent’s costs in both proceedings in the combined sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1309 of 2005

SYG1268 of 2007

SZGIY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me two files concerning two applications brought in this Court by the applicant.  In each of these she seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 2 July 1999.  In that decision the Tribunal affirmed a decision of a delegate made on 16 December 1998, refusing to grant a protection visa to the applicant. 

2. The applicant had lodged an application for protection visa on 4 August 1998.  In that application she claimed to have arrived in Australia in March 1997 on a passport in the name of a Thai national, which contained a photograph that was not that of the applicant.  

3. No challenge to the Tribunal’s decision was made until after the applicant was taken into immigration detention in 2004. On 20 May 2005 she lodged an application in this Court which was given the file number SYG 1309 of 2005. It invoked the Court’s then jurisdiction under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which gave it the jurisdiction of the Federal Court under s.39B of the Judiciary Act 1903 (Cth).

4. The application came before a Registrar at a first court date on 2 June 2005, and the applicant appeared in person and was assisted by an interpreter.  The normal information sheet was given to the applicant, and the usual directions were made, allowing her to obtain advice from a member of the free legal advice scheme and to file an amended application and affidavits by 8 July 2005.  The Registrar set the application down for a final hearing on 13 September 2005 before Mowbray FM.  The matter was subsequently moved to the docket of Emmett FM. 

5. The applicant did receive legal advice by way of a solicitor attending on the applicant at Villawood.  She was also probably served with submissions by the respondent Minister.  Those submissions challenged the merits of the applicant’s grounds of review, and also raised an issue as to the applicant’s unexplained five year delay in bringing judicial review after receiving the Tribunal’s decision. 

6. After a communication by the applicant to the Court indicating a wish to withdraw, the applicant was told that she needed to complete a notice of discontinuance by leave of the Court, and such a notice was filed in chambers on 9 September 2005. Both counsel before me accepted that probably leave was given for that notice to be filed pursuant to the requirements of r.13.01(2)(b).

7. I have before me now a motion, which I consider should be regarded as having been brought in the matter SYG 1309 of 2005, seeking an order: 

   1.That the notice of discontinuance filed on 9 September 2005 in Matter No. SYG 1309 of 2005 be set aside and those proceedings be reinstated. 

   Counsel for the applicant also sought leave to amend the application in that matter, so as to present the same argument as to jurisdictional error which he also presented in support of the 2007 application.  I shall consider the merits of that argument further below. 

8. Continuing the chronology, for reasons which are not explained in any evidence presented by either party before me, the applicant continued to be held at Villawood Immigration Detention Centre without being removed from Australia, and is still held there.  She took no further steps to litigate her entitlement to a protection visa until she filed on 19 April 2007 a second application for judicial review in respect of the Tribunal’s decision of 2 July 1999.  This application is now also before me in file number SYG 1268 of 2007. 

9. In support of her second application, the applicant’s affidavit sworn on 19 April 2007 explained in two sentences her delay between discontinuing the previous proceeding and the commencement of her fresh proceeding: 

   2.Previously I discontinued my proceeding against the Respondents due to lack of representation.  Now I have found Counsel who is prepared to review my case pro bono and to appear if appropriate. 

   Federal Magistrates Court constituted more than 84 days after the notice to me of the refusal of my protection claim by Refugee Review Tribunal on 2 July 1999. I did not have any Federal Magistrates Court to go to with my judicial review application within the time limit retrospectively made in the Migration Act 1958, and so the time limit in s477 has no application to my case.

10. A later affidavit sworn on 25 June 2007 further addressed that delay, and also the earlier delay between 1999 and 2005 in seeking any judicial review.  The applicant said, and has not been cross‑examined upon: 

    3.I have been shown a letter addressed to me at P O Box 661 Campsie and dated 2 July 1999.  The P O Box 661 in Campsie belonged to a friend of mine although I also had a key.  I do not remember receiving that letter or a copy of the decision of the RRT at that time. 

    4.I visited a migration agent, Priscilla Yu.  I remember she told me that the RRT had refused my application and told me that I should write to the Minister asking him to give me a visa.  Priscilla Yu prepared a letter to be sent to the Minister by me.  I did not read the letter and Ms Yu did not translate the letter for me.  I could not read any English at that time. 

    5.Priscilla Yu also told me that I could apply to the Court, but that it would cost a lot of money and that she could not help me with the Court.  She told me that it was better to write to the Minister.  I did not have any money and did not know how to contact a lawyer.  I do not remember having a copy of the decision of the RRT at the time I saw Priscilla Yu.  She did not read the decision to me or translate the decision for me. 

    6.Between 1999 and 2004, I was living in the community.  I did not know how to find a lawyer and still did not have any money to pay a lawyer.  I did not know that I could still apply to the Court.  I was also scared that I would be sent back to China. 

    7.I was taken into immigration detention in 2004.  When I was in detention, I was told by other detainees that I should get information about my case.  I then filled in a form and later received a copy of documentation that I think included a copy of the RRT decision.  Soon after I got the documentation, another detainee completed an application to the Court for me.  I cannot remember exactly but I think it was about one month after I got the documents. 

    8.The Court appointed a lawyer who told me he could not help me with the application to the Court and that if I lost I would have to pay a lot of money.  I did not know how to get another lawyer or have any money to pay another lawyer.  I did not understand the court and could not do it myself.  That is why I discontinued the previous application.  I have now got a lawyer who is able to represent me on a pro bono basis. 

11. The Minister has filed an affidavit confirming that the applicant became aware in 1999 of the adverse decision of the Tribunal, even if she was not aware of its reasons. An application signed by the applicant and dated 3 August 1999 was received by the Minister’s Department on 9 August 1999 and, in effect, sought the Minister’s intervention under s.417 of the Migration Act. The letter confirmed that: “my application for a protection visa has been refused by the Refugee Review Tribunal”.  It presented no new arguments, but repeated the applicant’s refugee claims almost verbatim from her original protection visa application. 

Proceeding SYG 1268 of 2007 

1. The applicant’s counsel today concedes that the applicant received “actual notification” of the Tribunal’s decision within the meaning of those words in s.477 of the Migration Act, if not in 1999, then during 2004 and 2005 and prior to her commencing her first application for judicial review. That section was enacted with effect from 1 December 2005, and imposes a mandatory time limit with a limited power of extension. It applies to applications to the Court concerning Tribunal decisions made before its commencement. Counsel concedes that if s.477 is legally effective according to its terms, the applicant’s 2007 application to this Court is incompetent.

2. Counsel for the applicant presented to the Court an argument challenging the legal effectiveness of s.477 as a result of the High Court’s opinions as to a time limit in the same terms as s.477, which was inserted in the Migration Act in s.486A by the same amending Act. In Bodruddaza v Minister for Immigration & Multicultural Affairs (2007) 234 ALR 114, [2007] HCA 14 (“Bodruddaza”), the High Court found that it was beyond the powers of Parliament to limit the High Court’s constitutional jurisdiction in those terms. Counsel argued that an inconsistency between s.477 and the conferral of jurisdiction in this Court by s.476 arises as a result of the High Court’s judgment in Bodruddaza. 

3. As I understood his argument presented in his written submission, it was to the same effect as was recently presented to me by counsel for an applicant, and which I rejected in SZABG & Anor v Minister for Immigration & Anor (No.2) [2007] FMCA 1062 (“SZABG”).  As I indicated to the present applicant’s counsel, in view of my recent consideration of these issues, it did not appear fruitful for them to be further explored before me in oral argument today, since I was likely to follow my previous decision.  As I explained in SZABG, I regard the issue as having been determined by the Full Court in SZICV v Minister for Immigration & Citizenship [2007] FCAFC 39. Counsel accepted that he would not be able to persuade me to change my opinions, but reserved the applicant’s position in relation to any appeal.

4. Accordingly, I find that the 2007 application to this Court is incompetent under s.477 of the Migration Act, and should be dismissed on that ground. The Court does not have any discretion to entertain the application in those circumstances, and it is unnecessary for me to address discretionary considerations which might arise if I had jurisdiction to address the 2007 application.

Proceeding SYG 1309 of 2005  

1. I must therefore now address the application to reinstate the applicant’s 2005 application for judicial review.  As I have indicated, although this was filed as a notice of motion in the 2007 matter, I consider that it is better treated as an Application in a Case brought in the 2005 matter.  I dispensed with all rules requiring this to be formally achieved. 

2. There is no doubt on the evidence before me that the applicant did execute and file a notice of discontinuance which accorded with the rules of this Court, and did so fully aware of the nature and effect of the document which she filed, being a final abandonment of her claims in that proceeding. 

3. In those circumstances, I have difficulty identifying how this Court has power to reinstate the original application.  However, as in other proceedings where an applicant has had second thoughts after filing a notice of discontinuance, I do not propose to refuse the motion on the ground that I do not have power to make an order which would reinstate her application (but, note the authorities cited in Christodoulou v Disney Enterprises Inc (2006) 156 FCR 369 at [27]‑[28]).

4. One way of approaching the application for reinstatement in the present case is to regard it as an application under r.16.05(1) to set aside an order granting leave for the filing of the notice of discontinuance, in circumstances where that order has not been entered. If the grant of leave were set aside, then the notice of discontinuance might be regarded as a nullity for the purposes of r.13.01. The original application would then remain pending.

5. I shall therefore assume that I have power to reinstate the applicant’s 2005 application, upon a consideration of the interests of the administration of justice in the circumstances shown in the evidence before me. 

6. One relevant consideration is whether the applicant has shown an arguable case for final relief if the matter were reinstated. In the present case, the ground of review which is submitted to have affected the Tribunal’s 1999 decision raises a failure to comply with s.424A(1). I shall address the merits of the ground further below. As will appear, it has some arguable merit, and I am therefore inclined not to refuse reinstatement upon a provisional view of merits, but to assume that the applicant has sufficient merit to justify reinstatement, absent countervailing considerations.

7. In this respect, it is relevant to consider the adequacy of the explanations given by the applicant, both for her original delay in seeking judicial review in 2005, and for her further delay between 2005 and 2007 in seeking reinstatement. 

8. The first period of delay is pertinent because, if I were to reinstate the 2005 application, the applicant would face a discretionary argument by the Minister that relief should be refused even if jurisdictional error were found, due to the delay exceeding five years in the applicant seeking such relief. It is clear that the Court has that discretion, even where a breach of s.424A affects the Tribunal’s decision (see SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 at [80] and SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [28], [55]‑[59], [91]).

9. Considering the applicant’s explanation for the delay between 1999 and 2005 given in her affidavits set out above, I am unable to avoid concluding that her delay presents an obstacle to the applicant obtaining relief. Plainly, she was aware in 1999 of the Tribunal’s decision, that it was adverse, and that she had a right to come to Court to challenge it. She was so advised by a highly experienced migration agent, whose clients are frequently seen in this Court. She took that agent’s advice not to pursue judicial review, but to seek intervention by the Minister under s.417. The evidence does not clearly show when the applicant became aware that the Minister would not intervene, but the applicant’s own affidavit suggests that it was probably long before she was taken into immigration detention in 2004 after “living in the community”.  In effect, the applicant admits that she took a deliberate decision to become an unlawful resident of Australia, rather than to pursue further sources of advice or remedy over many years.  In my opinion, on the explanations provided by the applicant, relief would be refused if I reinstated her application. 

10. I also do not consider that the applicant has adequately explained her delay in returning to the Court, after discontinuing her first proceeding.  I have taken into account the difficulties she has faced over all that time by being held in detention.  I shall assume that a person so held may be in a weaker position in obtaining advice than someone at large, although this is not demonstrated by any evidence before me.  I have also taken into account the fact that there must be some reason why the Minister has allowed the applicant to continue to remain in Australia in detention.  However, I do not think that she has presented an acceptable reason for her delay in reconsidering her discontinuance and coming back to Court. 

11. For both reasons in relation to delay, I would therefore refuse the application to reinstate. 

12. However, I propose also to address the merits of the 2005 judicial review application on the basis that her application is reinstated and amended so as to contain the ground which has been presented in her 2007 application.  The merits of this ground were set down for a final hearing today in that application, and the parties have made full submissions on the issues.  As I shall explain, I have decided that the ground argued should not succeed on its merits.  This requires me to explain relevant parts of the applicant’s visa application and how it was addressed by the Tribunal. 

13. The applicant’s application was lodged by a migration agent, Priscilla International Co. Pty Ltd.  The applicant’s reasons for seeking protection in Australia were in typed insertions to the form, explaining why the applicant sought protection against return to the People’s Republic of China.  In effect, a 15 paragraph statement was inserted.  In the second paragraph, the applicant said:  

    2.I came to Australia with a passport of Thailand.  My travel details are as follows:  

    … 

    Date of arrival in Australia:  12/03/1997  … 

14. The applicant then explained why she had used a false passport to come to Australia.  She gave a history of having been an active member of a small, “Independent Party” established by the applicant’s boyfriend in October 1995, which pursued objectives of political reform in China by distributing publications.  She claimed to have recruited five new members to a party having 26 members when she joined it, and to have been elected “as the head of women’s section, and one of the 7 members in the standing committee”.  

15. The applicant claimed that in December 1996 the “major leaders of the party” decided to “incite some students and workers to have protest activities in Fujian area”.  They distributed propaganda materials, and: 

    12.In the later part of February 1997, at least 10 members including my boy‑friend W were arrested by the plain policeman.  My special role and activities in that underground party were eventually discovered.  I was in greater dangerous situation because I was on the ‘black’ lists of the Public Security Bureau.  I had to leave my hometown immediately. 

1. The applicant claimed to have learned “that most of members of my organization were arrested by the policemen”, and that her home was searched.  She said that her parents therefore “had to spend a lot of money to arrange some friends in the underground tunnel to assist me to escape to overseas”.  No supporting evidence of these claims was provided, apart from a photocopy of what was claimed to be the applicant’s true Chinese identity document. 

2. The delegate refused the application, referring to “a number of doubts” about the credibility of the applicant’s claims.  

3. The application for review by the Tribunal was lodged on 24 December 1998 by the applicant’s agent, Priscilla Yu.  In the application form under the heading: “Your reasons for making this application.  Please tell us why you disagree with the Department’s decision?”.  There was inserted: “Please refer to my statement”. 

4. I accept submissions by both counsel that this should be read as being a reference to a document which was filed with the application for review.  This is a five page document signed by the applicant which commenced:  

   Part A  Ground of review 

   A.1I lodged my application for a Protection visa on 4 August 1998, because I believe to be a person to whom Australia has protection obligation under UN Refugee Convention. 

   A.2I do not agree the refusal decision on my application, because I do not think that my application has been fairly and carefully assessed, and I therefore seek a review by the Refugee Review Tribunal. 

5. The document then referred to the legal “tests” for a protection visa, and to the delegate’s decision.  It said: 

   Part C  Reason of review 

   …

   C.3I do not accept that the decision maker does not make any comments on my application against the above Test 3. 

   In my application, I have claimed that: … 

   There was then repeated in “bullet” paragraphs most of the typed statement previously inserted in the protection visa application.  The concluding paragraphs of the document were:  

   ·Through the underground tunnel, I finally escaped from my home with a false document.  I also had to change all of my personal details.  After I arrived in Australia, I was told by my parents on the phones that W was secretly sentenced to 16‑year imprisonment.  Obviously, if I return, I must suffer to the same tragedy as W.  I therefore had to lodge my application to seek a protection in Australia. 

   Obviously, the harm to or mistreatment feared by me is certainly of sufficient gravity as to constitute persecution [Test 3].  Also, there must be a Convention ground (political opinions) in my application [Test 4].  

   C.4I do not think that the decision maker has really understood the whole story of my claims for a protection visa.  I even doubt whether or not the decision maker has carefully and fairly read my application.  Obviously, based on my claims, I must have a well founded fear of persecution on my return. 

6. The applicant was invited to attend a hearing, and did so on 11 June 1999.  She attended at the Tribunal’s Sydney premises, and the hearing was held by video link to a member at the Tribunal’s Melbourne premises.  A transcript of the hearing has not been put into evidence by either party.  Counsel for the applicant today sought an opportunity to obtain and present a transcript.  In effect, he sought an adjournment of the final hearing which had been set down for today.  I refused that application.  My orders made at the first court date in the 2007 matter on 15 May 2007 had drawn the attention of the applicant and her advisers to the need to present any evidence of a Tribunal hearing in a transcript.  I considered that the applicant had been given more than enough time to prepare and present a transcript to the Court. 

7. The Tribunal referred to the hearing in its statement of reasons, without setting out a full description.  Under the heading “Findings and Reasons”, it gave its reasons for disbelieving the refugee claims made by the applicant.  These essentially were that the Tribunal was not satisfied that the applicant “was ever a member of the party she claimed”, based on the applicant’s inability “to articulate information about her political activities and beliefs in a way which suggested that she had a leading role in any political organisation”.  The Tribunal also could not find any country information corroborating the applicant’s claims. 

8. The Tribunal also, in one paragraph, referred to a further reason for disbelieving the applicant.  It said: 

   I note that the applicant arrived in Australia in March 1997 but did not apply for refugee status until August 1998, some 15 months after her arrival.  I have considered her explanation, given at hearing, that she was hoping things would be resolved, until she heard about the jail sentence.  However, I am not satisfied with this explanation.  Had she really been concerned about the Chinese authorities seeking her, I consider she would have submitted a claim for protection much earlier. 

9. This paragraph contains the only reference by the Tribunal to evidence being given by the applicant when questioned about her delay in making a protection visa application.  The paragraph is the focus of the ground of jurisdictional error now relied upon by the applicant.  It is argued that the Tribunal’s reasoning relied upon the dates of the applicant’s arrival in Australia and of her application “for refugee status”, and that the information as to the former date was “information” which the Tribunal was required to invite the applicant to comment upon by an invitation answering the requirements of s.424A(1). No such invitation was ever sent.

10. It is common ground that the later date was expressly “given” by the applicant in her submission to the Tribunal set out above, so as to come within the exclusion of obligations under s.424A(1) provided in s.424A(3)(b).

11. Counsel for the Minister accepted that the Tribunal also relied upon information as to the date of the applicant’s arrival in Australia, and that this was “the reason, or a part of the reason, for affirming the decision that is under review” within s.424A(1). However, he submitted that this also was information “that the applicant gave for the purpose of the application” to the Tribunal so as to come within the exclusion. 

12. He submitted that I should conclude that the date of her arrival was information given by her to the Tribunal at the hearing, from the Tribunal’s reference to “her explanation, given at hearing” for the delay, in a context where the applicant’s visa application had been referred to in the written submissions of the Tribunal in the terms which I have extracted above, and where the date of her arrival was uncontentious. 

13. Alternatively, if I were not positively persuaded of that fact, he submitted that the onus of proof that the exclusion in s.424A(3)(b) did not apply rests on an applicant, and that I could not be positively satisfied that the applicant did not give to the Tribunal the information that she had arrived in Australia in March 1997 (see SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 at [82]‑[83], and other paragraphs applied by Branson J in SZHYP v Minister for Immigration & Citizenship [2007] FCA 183 at [9]).

14. I accept this submission. 

15. I would also find that the applicant’s written submission to the Tribunal, in the context of the proceeding before the Tribunal, clearly invited the Tribunal to read her protection visa application and her statement contained in it.  At least, it assumed that the Tribunal would be reading and considering the applicant’s statement in her protection visa application. 

16. No new material was presented in the written submission to the Tribunal, and its tenor was to argue against the reasoning of the delegate which addressed the contents of her protection visa application.  The statement included in the protection visa application commenced with an express reference to the applicant’s date of arrival in Australia.  The introductory paragraphs to the statement to the Tribunal referred to her visa application, and to the “refusal decision on my application”.  The submission then argued that the visa application was not “fairly and carefully assessed”. 

17. In my opinion, the present situation is relevantly indistinguishable from that which was addressed by the Full Court in Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155 at [16]–[17]. The submission to the Tribunal referred to the applicant’s visa application:

    16…  in a way which infers that the Tribunal will have the whole of that document before it (which anyway is no more than common sense would suggest).  As counsel for the Minister put it, in the [later document] the [applicant] is “speaking to” the earlier document. 

18. Ultimately, in the context of the written submission to the Tribunal, I am not persuaded that the applicant did not at the hearing, in the course of her responses to the Tribunal’s questioning about her delay in applying for refugee status, refer to the date of her arrival, either expressly or implicitly as a fact which was uncontroversial (compare NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195 at [60]). I am not satisfied that the applicant did not “give” this information to the Tribunal.

19. For the above reasons, if I had reinstated the 2005 application, I would have found that it did not establish jurisdictional error, and would also have dismissed it for that reason.  

I certify that the preceding forty‑nine (49) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  23 July 2007