SZJRF v Minister for Immigration
[2007] FMCA 309
•1 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJRF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 309 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (class XA) visa – application for a show cause decision under Rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) – application filed out of time – no prospects of success – application dismissed. |
| Freedom of Information Act 1982 (Cth) Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 476, 477 Migration Litigation Reform Act 2005 (Cth) Federal Magistrates Court Rules 2001 (Cth), rr.44.06, 44.12, 44.15 |
| Applicant: | SZJRF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3302 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 1 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 1 March 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Advocate for the Respondent: | Ms G Broderick |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
That the application filed on 13 November 2006 be dismissed pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) on the grounds:
(a)That the Court lacks jurisdiction to hear the application [r.44.06(2)(a) of the Rules].
(b)That there has been delay in seeking the remedy [r.44.06(2)(b) of the Rules].
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal of Ms Eraine Grotte, reference N97/13584 made on 3 April 1998 or the decision of the Delegate of the Minister made on 18 January 1997 is to be accepted for filing without leave of this Court.
The applicant is to pay the first respondent's costs and disbursements of and incidental to this application, fixed in the sum of $2,200 in accordance with r.44.15 and Part 2 of Schedule 1 of the Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3302 of 2006
| SZJRF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This matter was brought before the Court by the applicant seeking an order that the first respondent show cause why a remedy should not be granted in the exercise of the Court's jurisdiction under s.476 of the Act. Both parties appeared. The applicant is a self-represented litigant and had the assistance of an interpreter. The respondent filed a response. I believe it is the parties’ interest to know with some certainty the future progress of this matter. Consequently, I made orders at the completion of the hearing and indicated I would publish my written reasons for those orders.
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 13 November 2006 for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 3 April 1998, affirming the decision of the delegate of the first respondent made on 18 January 1997, refusing to grant the applicant a protection (class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZJRF”.
For the purpose of this application the applicant tendered and applied for his affidavit, affirmed on 9 November 2006, to be admitted into evidence.(“affidavit of the applicant”)
Ms Broderick for the first respondent, tendered a bundle of documents which I marked “R1”. These documents included a request for access to documents under the Freedom of Information Act 1982 (Cth).
The respondent made the following response to the application:
1.The Court does not have jurisdiction to hear the Applicant’s application.
2.The Applicant was actually notified of the decision of the Second Respondent on at least 24 January 2006.
Particulars
see page 2 of the Applicant’s application filed on 13 November 2006.
3.By operation of the transitional provisions to the Migration Litigation Reform Act 2005, the Applicant is taken to have been actually notified of the Second Respondent’s decision on 1 December 2005.
4.Section 477 of the Act:
(a) requires an application to the Federal Magistrates Court to “be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision”; and
(b) provides that the “Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days”.
5.Pursuant to section 477(2)(a), applications for an extension of time must be made to the Court “within 84 days of the actual (as opposed to deemed) notification of the decision”.
6.More than 84 days have passed since 1 December 2005.
7.The Applicant did not make his application to the Court within 28 days of 1 December 2005, nor did he apply for an extension of time within which to make his application within 84 days of 1 December 2005.
8.Accordingly, the application has not been made in accordance with section 477(1) of the Act.
Background
The Tribunal decision of Ms Eraine Grotte, reference N97/13584 provides the following background material. The applicant, who is a citizen of the People’s Republic of China (“the PRC”), arrived in Australia on 18 December 1995. On 15 January 1996, he lodged an application for a protection visa with the Department of Immigration under the Act. On 18 January 1997, a delegate of the Minister refused to grant a protection visa and on 17 February 1997, the applicant sought review of the delegate’s decision by the Tribunal.
Applicant’s claims
The applicant’s claims are set out in the Tribunal decision and I rely on that section of the decision for the purpose of this decision:
The applicant claims that he was born on 9 May 1964 in Donglin, Shenyang, Liaoning Province, the People’s Republic of China (“the PRC”). The applicant claims that he completed 8 years of schooling in 1980 and that he was employed as a skilled worker from 1980 until December 1995.
The applicant travelled to Australia on a valid Chinese passport issued to him on 18 September 1995 in Shenyang and a valid visa issued to him in Beijing in December 1995.
The applicant claims that at the beginning of August 1995 Shenyang was afflicted by floods and houses were demolished as a result. The applicant claims that he could only expect to receive financial aid from relatives overseas but even so it was barely enough to live on. The applicant claims that it was impossible to go on living in the PRC.
The applicant also claims that he cannot return to the PRC because he will be arrested for having made an application for refugee status.
The applicant claims that after the flooding he expressed his views of discontent with the PRC and he was accused of spreading anti-revolutionary remarks. He was detained for 15 days. He claims that during his detention he was kicked and beaten by the police and he sustained an injury to his waist.
The applicant claims that his father who had been a member of the police force before the Liberation in 1949 was persecuted by the Chinese Communist Party (“the CCP”). The applicant claims that his father was deprived of the right to speak, to make an appeal or to work. He was subjected to hard labour and physical torture. The government confiscated all of his father’s property.
The applicant claims that as the son an anti-revolutionary he suffered discrimination at school and he was not allowed to join the Red Guards or to become a leader in class. The applicant claims that he was also beaten and criticised for believing in God.
The applicant claims that he and his wife wanted to have two children and when his wife was pregnant with their second baby the local government organisation and the family planning group interrogated them. They were informed that if they did not agree to an abortion they would not be allocated any land and their residential property would be confiscated. The applicant claims that he tried to argue with the authorities that his wife was from an ethnic minority and that usually they are allowed to have more than one child. The applicant claims however that she was forced to have an abortion.
The applicant claims that he will be persecuted by the PRC authorities should he return to the PRC for his family background and for having made an application for refugee status.(Tribunal Decision, p.4)
Tribunal’s findings and reasons
The Tribunal decision contains the following passages setting out the reason for its decision and I rely on that material for the purposes of this decision:
On 20 February 1998 the Tribunal wrote to the applicant advising that it had considered all the papers relating to this application but it was unable to make a favourable decision on that information alone. The applicant was invited to give oral evidence before the Tribunal. The applicant was advised that, if he did not contact the Tribunal within a specified period, the hearing would not take place and a decision may be made on the evidence available to the Tribunal. The letter was sent to the applicant at his address for service, in accordance with the regulations. No response has been received. In these circumstances I am satisfied that the Tribunal has discharged its obligation to provide the applicant with the opportunity to give oral evidence before it and that he has effectively declined that opportunity. This matter has therefore been determined on the evidence before the Tribunal. That evidence comprises the Department’s and Tribunal’s files relating to the application and information which the Tribunal has obtained from independent sources about matters referred to in the application.
As the applicant has not availed himself of the opportunity to attend an oral hearing, the Tribunal has before it only the information contained in the written material from which to make a determination.
The Tribunal wished to question the applicant about the interview with DIMA Client Services and the reason given to that interviewer about his departure from the PRC and about how he departed from the PRC.
The Tribunal also wished to question the applicant about his claims regarding his family background and its consequences. The applicant’s claims regarding these matters are at present very broad and lack detail. The Tribunal wished to obtain from the applicant details regarding his claims of being detained because of his being outspoken against the PRC government following the floods in Shenyang so that the truth could be ascertained.
I am unable, on the evidence before me, to assess the nature and extent of any harm the applicant suffered in the past or might suffer in the future. His claims amount to no more than a series of unsupported assertions.
The applicant has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but has not provided any further information in support of his claims despite ample opportunity to do so. Nor has he given the Tribunal the opportunity to explore aspects of his claims with him. A number of relevant questions are therefore left unanswered. I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution within the meaning of the Convention.(Tribunal Decision, pp.5-6)
Application for review of the Tribunal’s decision
On 13 November 2006, the applicant filed an application for review in this Court under s.39B of the Judiciary Act which contained the following ground of review:
The Tribunal said; “Even if the Chinese authorities knew the applicant had applied for refugee status, I do not consider that this would lead to persecution. The Australian Embassy advised that it is not aware of any law in China which explicitly makes applying for refugee status an offence.” The information is quite wrong because they don’t realize that the CCP authorities have never done anything according the law. He’s always cruelly persecuted persons who are not loyal to it. It considers the person who applies for refugee as anti-CCP and a traitor. It will persecute him with various cruel mean, such as putting him into re-education class, labour camp and prison. The Tribunal fell into jurisdictional error in making the finding.
Submissions and reasons
The applicant is a self-represented litigant who appeared with the assistance of a Mandarin interpreter. The applicant confirmed that the original application and the affidavit of the same date are the only documents he has filed in these proceedings.
The significant problem facing the applicant is time limit, as these proceedings were filed under the Act as altered by the Migration Litigation Reform Act 2005 (Cth). This places the application within the operations of s.476. This means that the time limit provided under s.477(1) of the Act applies and an application “must be made to the Court within 28 days of the actual (as opposed to the deemed) notification of the decision”. The Court has the power under s.477(2) of the Act “to extend that 28 day period up to 56 days” if the application for an extension of time is made within 84 days of the actual notification of the decision. The Court is “satisfied that it is within the interest of the administration of justice to do so.”
The application filed on 13 November 2006 under the heading ‘Decision Details’, indicates that the notification of the decision was received by the applicant on 24 January 2006. This date is different from the brief chronology contained in the affidavit of the applicant, which states that the applicant obtained a copy of the decision on 6 November 2006. When the applicant was making submissions he was asked to explain this discrepancy. He indicated that he had not received any letter from the Tribunal on 24 January 2006. I do not accept the applicant’s explanation as the submission handed up by Ms Broderick contains a ‘Request for access to documents’ under the Freedom of Information Act prepared on the applicant’s behalf on 26 August 2005. This request is not signed by the applicant. A letter from the Department acknowledges receipt of the application on 30 August 2005 and requests payment of the application fee. The payment was received on 7 September 2005 and acknowledge by the Department in a letter dated 16 September 2005. The requested information was forwarded to the applicant care of his agent by letter dated 24 January 2006. The affidavit of the applicant gives a different set of dates, indicating that he approached Aozhong Immigration and Education Affairs Centre (“Aozhong”) in September 2006, seeking assistance to find the outcome of the Tribunal decision. This is directly contradicted by the correspondence referred to above.
I am satisfied that the applicant was endeavouring to restructure the chronology to avoid the problem with the delay in filing the application. This was supported by the claim that he had never heard of Mr Wayne Han of Aozhong, who completed and filed the request for the Tribunal decision. Annexure ‘C’ of the applicant’s affidavit contains a letter dated 16 September 2005, addressed to the applicant care of Mr Wayne Han of Aozhong acknowledging receipt of the request fee.
Section 477 of the Act provides that an application to the Federal Magistrates Court must be made within 28 days of the actual notification of a Tribunal decision. This can be extended by 56 days to a total of 84 days in the interest of the administration of justice. The application filed on 13 November 2006 contains the statement that the notification was received on 24 January 2006, which is consistent with the correspondence tendered by Ms Broderick. If a short period of grace was to be given, it does not explain the 10 month delay in filing. The maximum extension of time, being 84 days expired on 18 April 2006. Accordingly, the application has been filed outside the time limit prescribed by s.477 of the Act and is incompetent.
The affidavit of the applicant and his oral submissions were focused on the circumstances surrounding the delegate’s decision and his approach to the migration agent, Mr Lui. After being advised by the Department that his protection visa application had been rejected, he approached Mr Lui to assist in the preparation of an application to the Tribunal for review of the decision. Mr Lui advised the applicant that he would contact him when the outcome of the review was available. The applicant states that he received no further communication from Mr Lui. In May 1998, he telephoned the office of Mr Lui and spoke to a person who advised him that there was nobody of that name at that office. When the applicant was asked if he attempted to contact the Department or anyone else to check the outcome of the Tribunal review he indicated he had not. In the affidavit of the applicant he affirms that he approached Aozhong in September 2006 seeking assistance. This is contrary to the documentation submitted by Ms Broderick, which indicate that the approach to Aozhong was at least 12 months earlier in about August 2005. However, there remains a period of approximately 8 years when the applicant took no steps to clarify his visa status, knowing that his original application had been rejected by the Delegate of the Minister on 18 January 1997. The applicant confirmed from the Bar table that he had not made any attempt to enquire during this period, knowing that his stay in Australia was illegal.
The Tribunal decision refers to a Departmental enquiry regarding a Mr Tan, who in conjunction with parties in the PRC, were running an unregistered migration agency in Perth. During an investigation of this organisation a large number of passports were seized that were being held by the operators of the agency. The Department contacted and interviewed the owners of the individual passports. The decision contains the following reference:
The interviewer’s notes are on the DIMA file which is before the Tribunal and the notes state that the applicants are farmers or in associated occupations. It states further that “They told me candidly that they came to Australia to seek work since floods have destroyed their farms and they cannot afford to feed their families.”(Tribunal Decision, p.5)
The Tribunal decision indicates that it wrote to the applicant advising him that it had considered all the material contained in the application, but was unable to make a favourable decision on that information alone. The applicant was invited to give oral evidence before the Tribunal. The letter was sent to the applicant at his address for service, in accordance with the regulations. No response was received and the applicant did not attend the Tribunal hearing. Consequently, the Tribunal proceeded with its decision.
Conclusion
The applicant appeared at the hearing as a self-represented litigant. The applicant has not filed his application within the time limit prescribed by s.477 of the Act and is therefore incompetent. However, I have independently considered whether any argument based on the material could have been made out. The applicant did not attend the Tribunal hearing, although advised that the Tribunal was not satisfied that he was eligible for a visa on the material that he had submitted. The Tribunal also expressed concern that a refugee Convention nexus did not exist, but were denied the opportunity to raise this issue with the applicant. The applicant at the hearing before this Court was endeavouring to amend the relevant dates in the chronology of events leading to the filing of this application. The evidence contained in the correspondence from the Department regarding the Freedom of Information request contradicted the contents of the affidavit of the applicant. Further contradiction to the affirmed chronology was contained within the affidavit itself.
I see no purpose in allowing further adjournments in this matter as this will only incur unnecessary additional costs to the applicant, Minister and the Court. The applicant has no prospect of establishing any jurisdictional error in the Tribunal decision of 3 April 1998. The matter should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application, fixed in the sum of $2,200.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 14 March 2007
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