SZIGL v Minister for Immigration - [2006] FMCA 399

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIGL v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 399

MIGRATION – Review of Refugee Review Tribunal decision.

PRACTICE AND PROCEDURE – Refusal of an extension of time for the filing of an application filed between 28 and 84 days after the deemed date of notification of the Tribunal decision – applicant using a false name and making false claims about his country of origin and fear of persecution.

Migration Litigation Reform Act 2005 (Cth), s.42

Applicant:

SZIGL

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number:

SYG355 of 2006

Judgment of:

Driver FM

Hearing date:

22 March 2006

Delivered at:

Sydney

Delivered on:

22 March 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr J Bird
Phillips Fox

INTERLOCUTORY ORDERS

The Court directs that the names of the applicant are not to appear on the transcript of proceedings.
An extension of time to file the application filed on 3 February 2006 is refused.
The application is dismissed as being filed out of time.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,500.
Both the applicant and the first respondent have leave within 28 days to make an application that Ms Billie Shi pay the costs that the applicant has been ordered to pay.
The Court directs that the transcript of these proceedings is obtained and made available to the Minister’s Department for such action as she deems appropriate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG355 of 2006

SZIGL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application for an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”). The RRT decision was handed down on 10 June 2004. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant, who claimed to be a citizen of South Korea, arrived in Australia on 1 February 2004. On 17 March 2004 he lodged an application for a protection visa with the Minister's department. On 23 March 2004 a delegate of the Minister refused that application. On 14 April 2004 the applicant applied to the RRT for review of that decision.
The applicant was invited to a hearing before the RRT by letter dated 29 April 2004 (court book, page 7). The invitation was correctly sent to the applicant's authorised recipient (court book, pages 2 and 8). The applicant did not attend the hearing to which he was invited. In the circumstances, the presiding member was unable to verify the applicant's claims of political persecution in South Korea. The presiding member was, on the limited information available, unable to be satisfied that the applicant had a well-founded fear of persecution in South Korea.
In his application to this Court filed on 3 February 2006 the applicant asserted problems in the notification of the RRT decision. He asserted that he was notified of the RRT decision on 3 February 2006, the date of the filing of his application. This assertion is duplicated in an affidavit filed on 3 February 2006 in support of the application. The affidavit was sworn before Billie W. Shi, who is the applicant's present migration agent. In his affidavit, the applicant had claimed that he had lost contact with his former migration agent, Mr David Deng. He asserted that Mr Deng did not inform him of the RRT decision.
When this matter came before me on 3 March 2006 I adjourned the matter for further hearing today in order to seek to verify the accuracy of the claimed actual date of notification of the RRT decision. On

8 March 2006 the Minister filed a response to the application. The Minister asserts that, to her knowledge, the applicant was never assisted by Mr David Deng. The Minister asserts that the applicant had nominated as his authorised recipient for the purposes of his review application, a Ms Jennifer Liu. The Minister states that the applicant has not provided any evidence to support his curious allegations. The Minister also asserts that there is no jurisdictional error in the decision of the RRT in any event.
A court book was filed on behalf of the Minister on 15 March 2006.

I accepted the court book as evidence for the purposes of today's proceeding. I also invited the applicant to give oral evidence on the question of notification of the RRT decision. He took up that invitation. The applicant confirmed that the signature appearing on his review application (court book, page 4) is his. However, he then proceeded to tell me an extraordinary story.
The applicant told me that the name on his review application was not his real name. He gave me his real name and produced a passport from the People's Republic of China to prove it. He told me that he is not from Korea at all: He is from China near the North Korean border. He is an ethnic Korean born and formerly living in China. The applicant could not recall Jennifer Liu, who he nominated at his authorised recipient. Neither could recall the address given for his authorised recipient. He thought that Jennifer Liu might have been the secretary of Mr David Deng. That is possible. Page 23 of the court book is an RRT case note stating that initially the Minister's Department sent the wrong file to the RRT. The case note includes an observation that the address given for the authorised recipient was the same address as that of David Deng. David Deng is a deregistered migration agent. I note that the Migration Agents' Registration Authority (“MARA”) published a decision concerning him on 7 June 2004. MARA made serious findings of malpractice against Mr Deng on the basis of numerous complaints. The applicant stated in his evidence that Mr Deng suggested to him that he make a claim using his false name and his false Korean identity. In his evidence he said that he wanted to use his real identity but Mr Deng suggested that he save that for a later application if the first one failed.
Whatever happened, the applicant did sign the protection visa application in which the false claims were made. He permitted that claim to be put on his behalf. The claim that went to the RRT[1] was entirely false. The applicant denied receiving any correspondence from the RRT. This was notwithstanding that the hearing invitation was sent to him at his nominated home address as well as to his authorised recipient. The applicant could not remember whether the home address given to the RRT was accurate or not.
[1] and apparently to the Minister’s delegate
The applicant said in his evidence that he knew nothing of the RRT decision until he was taken into detention at Villawood. The applicant said that he was informed of the RRT decision by a departmental officer at Villawood. He could not recall when that was but thought it was early this year. The applicant told me in his evidence that he was released from detention shortly after Chinese New Year. He then went to see Billie Shi. He made two visits to see Billie Shi. After the second visit the present application to the Court was filed. I accept that the applicant was held in immigration detention until around the time of Chinese New Year. I accept that he went to see Billie Shi after he was released from detention. I accept that after two visits to see Billie Shi the present application to the Court was filed on 3 February 2006. On the basis of those facts, the asserted date of actual notification of the RRT decision cannot be true. Even on the applicant's own account he found out about the RRT decision some time before that date in Villawood. I do not know when that was; neither does he. It could have been before 1 December 2005. In the absence of any reliable evidence of the actual date of notification of the decision, the applicant is deemed to have been notified of the decision on 1 December 2005[2].
[2] see s.42 of the Migration Litigation Reform Act 2005 (Cth)
The application to the Court was filed substantially more than 28 days after that date. The applicant therefore requires an extension of time for the filing of the application. I do not think an extension of time should be granted. First, the applicant has lied to the Court about the date of notification of the RRT decision. Secondly, he has continued to use what he now admits is a false name in his application to the Court. Thirdly, he has been a knowing participant in a scheme to deceive the Minister and the RRT. He should not enjoy any fruits of that deception.
Finally, the RRT decision is almost certainly free from any jurisdictional error in any event. No purpose would be served by permitting the application to proceed any further. The applicant was properly notified of his hearing invitation and failed to attend. The RRT was permitted to proceed in his absence. The presiding member properly found that she could not be satisfied on the sparse material before her that the applicant was a refugee. Even if she had been satisfied it would have been on an entirely false factual basis.
I refuse an extension of time for the filing of the application filed on 3 February 2006. It follows that the application must be dismissed as having been filed out of time. The revelations made by the applicant today could well be relevant to future decisions by the Minister’s Department concerning him. I will, in addition, direct that the transcript of these proceedings be obtained and be made available to the Minister's Department for such action as she considers appropriate.
The application having been dismissed, the Minister seeks a costs order against the applicant as named in the sum of $1,500. The applicant is concerned about the outcome of these proceedings and about his ability to pay. Those are not reasons for me to refrain from making a costs order. I am concerned about the role that Billie Shi, the applicant's present migration agent, has played in these present proceedings. The applicant said in his evidence that it was Billie Shi or someone from her office who filed the application in the Court. The making of an application to the Court in a false name is a serious matter. It is open to either party to seek an order that Ms Shi pay any costs that the applicant may be ordered to pay.
I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $1,500. Both the applicant and the first respondent have leave within 28 days to apply for an order that Ms Billie Shi pay the costs that the applicant has been ordered to pay.

I certify that the preceding thirteen (13) paragraphs are a truecopy of the reasons for judgment of Driver FM

Associate:

Date: 29 March 2006