SZJDB v Minister for Immigration
[2006] FMCA 1514
•4 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJDB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1514 |
| MIGRATION – Where application for review made out of time − whether court has jurisdiction to hear the application − whether applicant notified of Tribunal’s decision − alternatively whether application is without merit − where Tribunal found applicant not to have a well-founded fear of persecution − whether misconduct of migration agent in misleading the applicant forms a jurisdictional error. |
| Migration Act 1958, s.477 |
| SZFOG v Minister for Immigration [2006] FCA 1170 B41 of 2002 [2004] FCA 30 Minister for Immigration v SZFDE [2006] FCAFC 142 SZIVV v Minister for Immigration [2006] FMCA 1120 |
| Applicant: | SZJDB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2097 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 4 October 2006 |
| Date of Last Submission: | 4 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 4 October 2006 |
REPRESENTATION
| Applicant in Person |
| Solicitors for the Respondents: | Mr A. Markus Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $1750.00 in accordance with Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2097 of 2006
| SZJDB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
There comes before me today an application by the respondent Minister for me to dismiss this application on the grounds that I have no jurisdiction to hear it. The basis for that allegation is that the decision of the Refugee Review Tribunal (the Tribunal) which the applicant seeks review of was made on 29 March 2001 and handed down on 24 April in that year. If the applicant had received notice of that decision, then unless he commenced some proceedings in this court within 28 days of 1 December 2005 or, with leave of the court, within a further 56 days, this court’s jurisdiction to hear the application for review would have been exhausted: s.477 Migration Act 1958 (the “Act”).
The respondent also argues that if I did have any power to allow the application to continue because, for example, I was satisfied that the actual date upon which the applicant was notified of the decision was some time in 2006 before the application was made, I should not do so because the application itself is doomed to failure.
The applicant attended an interview with the Refugee Review Tribunal during which she was questioned about her claims which supported her request for Australia to exercise its protection obligations in her favour. Those claims revolved around her alleged membership of the Falun Gong organisation or, more accurately, her being a practitioner of Falun Gong. The applicant’s responses to the Tribunal’s questioning, which are referred to at [CB69], were not encouraging. She seemed to be unaware of the name of the leader of the Falun Gong movement or the exercises he had prescribed. As the Tribunal said at [CB69]:
“In my view, the applicant’s complete lack of familiarity with the exercises that make up Falun Gong practice is strong evidence that she is not a Falun Gong practitioner. In my view, being unfamiliar with Falun Gong exercises is completely inconsistent with the claim to be a Falun Gong practitioner.”
At [CB70] in dismissing the applicant’s claims the Tribunal notes:
“The applicant has not claimed to fear persecution in China for any other reason and none is suggested on the evidence before me. In the circumstances I cannot be satisfied that the applicant has a well-founded fear of persecution for a Convention reason.”
The decision of the Tribunal was sent to the applicant at the address which she gave to the Tribunal, but it is quite clear that the documents were not received there by her because they were returned to the Tribunal; [CB71] to [74]. However, the applicant had a migration agent to whom the decision was sent and there has been no suggestion that the documents were not received by him.
Some five years passed. The applicant tells me that she spent those years in the company of her sister, who is an Australian citizen, looking after her sister’s child. I have no reason to doubt the truth of this statement. It concerns me that the Department of Immigration was unable to come across this now illegal immigrant for that lengthy period of time and thus necessitated these proceedings. But she was eventually found and having been placed in Villawood filed the application which is currently before me. She was rather careful in her application not to answer the question which asks the date when notification of the decision was received. But it is interesting to note that she does state as ground 1 of that application:
“I did not appeal in the Federal Magistrates Court because I did not know that I have the right to appeal.”
Nothing is said about not knowing what the result of the Tribunal’s decision was.
The statement which I have set out above was repeated in the affidavit which accompanied the application. After a directions hearing an amended application was filed. Once again the date when the notification was received by the applicant is not completed and the letters “N/A” have been inserted. This document was quite clearly not prepared by the applicant who claims to speak very little English.
The amended application says there are two grounds of appeal, the first being that there was an error of law in the Tribunal’s decision constituting a jurisdictional error, and the second that there was a procedural error in the Tribunal’s decision constituting an absence of natural justice. In regard to the second matter there are nine particulars given which really amount to the fact that the applicant was misled by her migration agent into making a claim that she was a Falun Gong practitioner. In particular 5 she said:
“As a matter of fact, I have been misled by my adviser Mr Xiang Yao. At the beginning which my application for a protection visa was lodged I was asked to provide a simple resume, photo and copy of my passport and then I was asked to sign some blank forms. I knew nothing about any details regarding my application until 28 March 2001 which was just one day before the Tribunal’s hearing. I was very surprised that I was described as a Falun Gong practitioner by Mr Yao, but he told me that only Falun Gong practitioners could be accepted by the Department. Also, Mr Yao did not suggest to me to attend the hearing with the excuse that I might be arrested by the immigration officer if I had done so. Later on when he realised that I had insisted on attending the hearing, Mr Yao immediately decided to go with me with the excuse that he would protect me. It was under Mr Yao’s supervisory that I had been very scared during the Tribunal’s hearing and I dared not expose the truth to the Tribunal. Particularly while I was asked to talk to Mr Yao during the Tribunal’s hearing he asked me not to say anything about the issues arising from the Tribunal regarding to my poor knowledge of the Falun Gong and he said I would be in big troubles if I said too much.” [sic]
The only clue as to what the applicant now says is her grounds for seeking asylum is found at paragraph 7 where she says:
“I was a teacher before I came to Australia and my troubles with the Chinese Government have mainly because of my activities to spread pro-democracy ideologies to my students in the classroom. I have had to make my mind to leave my country solely for the purpose to escape from political persecution by the PRC authorities. Unfortunately, owing to the misleading of Mr Yao from the beginning to the end I do not have a chance to give my genuine claims either to the Department or the Tribunal.”
Now it is true that Mr Yao is not a satisfactory migration agent and in 2005 he seems to have been struck off the rolls of that august institution. It may well be that he told the applicant that her best chance of success was to prove that she was a Falun Gong practitioner, but it is equally true that if this was a dishonest act the applicant connived in it by signing the forms and by appearing before the Tribunal and repeating the story.
It seems clear to me that the Tribunal gave the applicant an opportunity to provide it with any other information that would lead it to the belief that she was a person to whom Australia owed protection obligations and she could have told the Tribunal about her pro-democracy activities in the classroom. She did not do so, even though it seems clear from the way the Tribunal’s decision is structured that she was aware that her claims to be a Falun Gong practitioner were falling down due to her inability to provide any information about that group.
I think I can draw an inference that a person in the position of the applicant who had genuine claims and a genuine fear would have said something to the Tribunal at that stage. I draw this inference not only from my general understanding of these matters, but also from my recollection of a very large number of cases in which applicants before the Tribunal have told the Tribunal a very different story to the one that was placed before the delegate or that was found in their original application for a protection visa.
There have been a number of cases in which the conduct of migration agents has been considered in coming to a decision as to whether or not there has been a jurisdictional error in the actions of the Tribunal. In SZFOG v Minister for Immigration [2006] FCA 1170 Cowdroy J collected a number of the authorities and confirmed that the principle enunciated by Dowsett J in B41 of 2002 [2004] FCA 30, that the failures of a migration agent do not constitute grounds for alleging jurisdictional error on the part of the Tribunal, was clearly correct and supported by a number of other decisions, which he quotes, of the Federal Court. In SZFOG his Honour felt that the conduct of the migration agent could, however, be taken into account when considering whether or not to hold a second application by a claimant for a protection visa should be dismissed on the grounds of abuse of process where the migration agent had convinced the applicant to withdraw the first. This case is not of that type. It has more similarities with that found in Minister for Immigration v SZFDE [2006] FCAFC 142, a decision in which, by a majority, the full bench decided that the fault of the migration agent in persuading the applicants not to appear before the Tribunal would not avail the applicants. If I am right in this, the applicant would not have a valid ground for disputing the Tribunal’s decision even if she had not been complicit in the “fraud” played upon the Tribunal.
Although I have gone into these matters in some detail it is not really necessary for the purposes of deciding this application. That is because after a lengthy cross-examination by Mr Markus I asked the applicant whether, when she had entered Villawood in 2006, she was aware that the Tribunal had decided her application against her. She told me that she knew she was illegal and that the reason that she was illegal was that the Tribunal had not accepted her claim for asylum (although I am here paraphrasing the exact words used).
Like Driver FM in SZIVV v Minister for Immigration [2006] FMCA 1120, another case where the applicant claimed not to have received notification of the Tribunal’s decision until six years after the date from handing down, I find it implausible that an applicant would wait the length of time that this applicant is said to have waited before making any serious inquiry about the outcome of a review where the decision in question was one that was, allegedly, “a life and death” decision.
I would draw an inference from this fact and from the direct evidence of the applicant that she became aware of the Tribunal’s decision not all that long after it was promulgated in 2001. She may not have known that she was able to appeal the decision, but that is not the question in issue.
As I am satisfied that the decision was received by the applicant prior to 1 December 2005, her application made on 1 August 2006 is an application to which the provisions of s.477 apply and I have no jurisdiction to hear it. I dismiss the substantive application and I order that the applicant pay the respondent’s costs which I assess in the sum of $1,750.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM.
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