SZHMS v Minister for Immigration & Citizenship

[2007] FCA 862

FEDERAL COURT OF AUSTRALIA

SZHMS v Minister for Immigration & Citizenship [2007] FCA 862

SZHMS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 481 OF 2007

MADGWICK J
28 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 481 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHMS
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MADGWICK J
DATE OF ORDER:	28 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The appellant pay the first respondent’s costs of the appeal assessed in the sum of $2,500.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 481 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHMS
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MADGWICK J
DATE:	28 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR

1. This is an application for an extension of time to file and serve a notice of appeal from a decision of the Federal Magistrates Court. 

2. The decision was given by Turner FM on 28 February 2007 and dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 25 October 2005.  The decision of the Tribunal was adverse to the applicant. 

3. The application to this Court was filed a mere five days after the expiry of the time for appeal and account has been given that the Minister does not suggest it would not be acceptable.  However, the first respondent submits that the proposed notice of appeal would have no prospect of success.

4. The matter has a curious history.  The applicant came to Australia on 25 September 1996 from China and lodged an application for a protection visa in January 1997 which was refused by a delegate of the Minister on 31 July 1997.  However, the delegate’s decision was not lawfully notified to the applicant until 27 May 2005.  Soon thereafter the applicant made his application for review of the delegate’s decision by the Tribunal.  There is no common ground about whether the applicant nevertheless really knew of the delegate’s decision.  There is some untested evidence available to the Department that the applicant, under another name, made a further unsuccessful application for refugee status. 

5. The Tribunal accepted that the applicant had been punished in 1984 for contravening the “no second child” policy of the Chinese government and also for having participated in the protest movement of 1989.  The Tribunal accepted that the applicant had been unfairly dismissed, apparently because of his reputation as something of a dissident, from his employment in 1994.  However, the Tribunal considered that after the lapse of time and, given what it could glean of the attitude of the Chinese authorities, there was no real prospect that the applicant would currently, or in the reasonably foreseeable future, be of any sufficient interest to the authorities as to be at risk of persecution from them.

6. There were various grounds of judicial review asserted before the Federal Magistrate.  As in so many of these cases they were clearly enough prepared by somebody with sufficient knowledge of the law to be dangerous.  It was principally argued before the Federal Magistrate that the long delay in the matter being heard by the Tribunal meant that there had been a denial of natural justice. 

7. The learned Federal Magistrate considered that in this case the delay had not affected the Tribunal’s capacity fairly to assess the applicant’s evidence or to carry out its decision-making functions.  The Court below otherwise dealt in a quite unexceptionable way with the various and multifold particular grounds otherwise asserted by the applicant. 

8. Dealing with the procedural fairness issue, his Honour considered NAISv Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171 to be distinguishable which, on its facts, of course it is.

9. I was initially concerned that the Court may have acted on a view that it is only when some failure or default by the Tribunal affects the ability of an applicant fairly, freely and in a timely way to present his or her case that there might be any judicially reviewable failure to exercise or excess of jurisdiction by the Tribunal.  As presently advised, I would not think that that represents the law at all. 

10. I was also initially alarmed that a man who had been in this country for so long might have been put belatedly in a position, through no fault of his own, of trying to establish the risks he might face in the present day when by law he had been entitled to have those risks assessed many years ago.  It is, however, by no means clear that the applicant was free of any such fault in this matter.  The Minister asserts the contrary.  The state of the materials is not such as to enable me to resolve this question in the applicant’s favour. 

11. I adjourned the matter over the spirited opposition of the Minister to give the applicant the opportunity, as I advised him to do, to seek legal advice in order that, if he might have any arguable case, the demonstration of it to the Court could properly be made.  He has again appeared unrepresented.  He seeks to show that the Department sent the material in question to a wrong address entirely, but this does not appear to be made out on the material referred to.

12. In the circumstances it does not appear to me that there is an arguable case.  An attack of the kind I thought might be possible was not, raised before the Court below, and there was no explanation of why not, since the applicant was legally represented.  As such, the Court’s discretion would need to be invoked to enable this point to be raised.  There is nothing that indicates that the discretion should be exercised in favour of the applicant and I think I am constrained to conclude that he has no arguable prospects of success, as submitted by the Minister. 

13. The application should be dismissed with costs, assessed in the sum of $2,500. 

14. I cannot leave this case without adding that, while it is not an easy thing for the Australian community to tolerate a person making an entirely fraudulent second application, if that is what this applicant has done, nevertheless, with due respect, recent history suggests that serious errors of factual kinds may be made in the administration of the migration laws.  Given that this man has been in this country for so long, and apparently productively employed for almost all that time, before an ultimate decision to remove him might be made,

if there is any discretionary element involved, at least the facts might be carefully checked and the human consequences carefully assessed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:
Dated:        6 June 2007

Counsel for the Applicant:	The appellant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 May 2007
Date of Judgment:	28 May 2007