SZJSY v Minister for Immigration
[2007] FMCA 757
•30 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJSY v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 757 |
| MIGRATION – Notification of decision in March 2004 – actual notification held to have taken place on 1 December 2005 – Migration Litigation Reform Act – application for review filed two years and eleven months after the decision of the Tribunal – granting prerogative relief is discretionary – Court would refuse to grant where long delay in lodging application for review. |
| Migration Act 1958 (Cth), ss.379A (4), s.477 Migration Litigation Reform Act 2005, s.42 Federal Magistrates Court Rules 2001, r.44.12 |
| Selvadurai v The Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal (1994) 34 ALD 347 Abebe v The Commonwealth (1999) 197 CLR 510 |
| Applicant: | SZJSY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3459 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 30 April 2007 |
| Date of last submission: | 30 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitor for the Respondents: | Ms Laura Gazi of Australian Government Solicitor |
ORDERS
The application is dismissed.
The name of the first respondent is amended to the Minister for Immigration & Citizenship.
The applicant is to pay the costs of the first respondent fixed in the amount of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3459 of 2006
| SZJSY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 23 November 2006 seeking an order that the respondents show cause why a remedy should not be granted in respect of the decision of the Refugee Review Tribunal (“the Tribunal”) dated 27 February 2004, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
The applicant was born on 15 October 1964 and claims to be from and of Chinese ethnicity (“the Applicant”).
The applicant’s wife, two sons, father, and brother remain in China.
The applicant arrived in Australia on 14 June 2003 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 11 July 2003. In this application he claimed that he was detained and tortured by the Public Security Bureau (PSB) for practicing Falun Gong.
This application was refused by a delegate of the first respondent on
29 July 2003 (CB 35).
On 3 September 2003 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 49). The applicant gave oral evidence before the Tribunal on 6 February 2004, at which time he maintained the claims made in his original protection visa application.
On 27 February 2004 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa (CB 70). In considering his claims, the Tribunal found (at Court Book 81 last para -85) :
The applicant claimed and I accept that he is a national of the PRC.
It is reasonable that an applicant whose claims are plausible and credible should, unless there are good reasons not to do so, be given the benefit of the doubt (UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Re-edited, Geneva, January 1992, paras. 196‑197 and 203‑204). However, it is appropriate that I assess the specific claims advanced in support of an applicant's case, bearing in mind that (CB 82.1):
A decision‑maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out. (CB 82.2)
(Selvadurai v The Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal, Heerey, J, 20 May 1994, p.7).While I accept that, as observed by Gummow and Hayne JJ in Abebe v The Commonwealth (1999) 197 CLR 510, it is hardly surprising that applicants for refugee status may yield to the temptation to embroider their accounts (at paragraph 190 in [1999] HCA 14), in this matter the applicant’s evidence was inconsistent and did not support his claims that he was a Falun Gong practitioner. (CB 82.3)
At the commencement of the hearing at the RRT on 6 February 2004 the applicant confirmed that all the details in his Application for a Protection Visa, his typed statement dated 24 June 2003 and his Application for Review were correct and there was nothing else that he wished to claim.
When I asked the applicant whether there was a particular event that led to his decision to leave the PRC he referred to his Falun Gong practice group being interfered with on a number of occasions by the PSB and that the PSB visited his home on a number of occasions. The difficulty with this is that the applicant omitted reference to his being detained at the Police Station, in answer to my question as to a particular event that led to his leaving the PRC (CB 82.7). I find it implausible that the applicant would overlook this event as it would appear to be central to his reasons for leaving the PRC. The applicant was then asked why he was released from the Police Station and he answered that the PSB did not have any further reason to detain him. He did not refer to his written claim that he had escaped from the Police Station, with others, by hitting the PSB officers (CB 82.8). When challenged about this omission, the applicant stated that even though the PSB could not find any other reasons to detain him, they were not gong to release him. I find the applicant’s evidence in relation to how he was able to leave the Police Station to be inconsistent and his explanation concerning the inconsistency to be not credible. Accordingly, I find that the applicant was not arrested, detained or released/escaped from the Police Station. (CB 82.10)
The applicant stated he left the Police Station in November 2001. His passport was issued in January 2003 and he left the PRC on 14 June 2003. I do not accept the applicant’s explanations as to why it took him so long to obtain a passport (it is difficult to obtain a passport in the PRC) or that he did not have physical possession of the passport because his friend would not tell him that he had it and was afraid that he would get into trouble if he did, and the SARS virus restricted travel out of the PRC. I indicated to the applicant at the hearing that I had difficulty accepting these reasons as surely he would be keen to leave the PRC if he was worried about being persecuted. The applicant agreed. Accordingly, I find the applicant’s evidence with regard to obtaining his travel documents and that he was fleeing the adverse attention of the authorities not to be credible (CB 83.4). Accordingly, I find that the applicant applied for and received his travel documents in the normal course and subject to the formal checking procedures as referred to in the following independent country information, which I accept (CX27863 & UK Home Office).
The applicant’s evidence as to where he had lived prior to leaving the PRC was also inconsistent (CB 83.5). He had stated in his Application for a Protection Visa that he had lived at a particular address for ten years prior to leaving the PRC; however, at the interview he stated that after he left the Police Station he hid at a friend’s house. He stated that the address in his Application for a Protection Visa form was where he stayed after he left the Police Station. This is inconsistent with the information in the Application for a Protection Visa which stated that he had lived at that address for ten years prior to departing from the PRC. I do not accept the applicant’s explanations as they are inconsistent. Accordingly, I find that the applicant did not hide in a friend’s house, but lived at the one address provided in the Application for a Protection Visa form, for the ten years prior to his departure from the PRC. I find that he was able to do so as he was not the subject of adverse attention by the PSB. (CB 83.6)
I also find that the applicant’s evidence in relation to his employment was inconsistent (CB 83.8). He wrote in his Application for a Protection Visa form that he worked at the same factory from 1987 to June 2003. At the hearing he stated that from 10 November 2001 when he left the Police Station he no longer worked at the factory. This is a new claim which had not been raised in the written documents. When asked about the discrepancy, the applicant stated that he was supposed to be an employee at the factory but he left and went into hiding. I do not accept this explanation find that it was manufactured at the hearing, also having not been raised previously (CB 83.9). As a result, I find the applicant’s evidence about his employment to be inconsistent and find that the applicant worked at the factory until he left the PRC as he was of no adverse interest to the PRC authorities.
As a result of the findings above, I find that the applicant is not a credible witness and I do not accept any of his claims.
Moreover, I asked the applicant to describe the five Falun Gong exercises, but he was unable to do so. On the basis of the independent country information that a bona fide Falun Gong practitioner would practise the five sets of Falun Gong exercises very often (CX69457), I find that the applicant is not a Falun Gong practitioner (CB 84.3). This is also supported by the applicant not being able to provide proof that he practised Falun Gong in Australia. In that regard, I do not accept that he practised by himself because he had no friends in Australia with whom to practise (CB 84.4). Further, on the basis of my previous finding that the applicant is not a credible witness, I do not accept that he is a Falun Gong practitioner and find that he was never the subject of adverse attention by the PSB because of those claims, or for any other Convention reason. (CB 84.4(a))
Further, as a result of all my findings, I do not accept that the PSB have continued to look for the applicant in the PRC and to implicate the applicant’s family. (CB 84.5)
As a result, having regard to the evidence and the applicant’s claims, I find that the applicant did not experience past persecution in the sense explained at page 3 of this decision owing to a Convention reason. (CB 84.6)
I also find on the evidence before me that the applicant does not face a real chance of persecution should he return to the PRC now or in the foreseeable future. (CB 84.7)
Therefore I am not satisfied on the evidence before me that the applicant has a well-founded fear of persecution for Convention purposes. Accordingly, I am not satisfied that he is a refugee.
The applicant filed an application for an order to show cause in this Court (two years and eleven months later), seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The matter was listed for hearing on 22 March 2007 and was adjourned on the application of the applicant. Today the applicant seeks a further adjournment to consider the written submissions put to him by the first respondent. The Court accepts that those written submissions were sent to the applicant by post to his residential address on 23 March 2007.
The applicant has given evidence before the Court that his residential address has remained unchanged during these proceedings. It is noted from material in the Court Book that the applicant has supplied the same address for his postal address and his residential address. The Court is satisfied that the applicant has been aware of the issues raised in the submissions by the first respondent, since a copy of the first respondent’s response was given to the applicant on 18 January 2007. The Court is satisfied from a document handed to the Court by the applicant that he has been able to receive legal advice in relation to these proceedings. The Court has decided not to grant a further adjournment to the applicant.
The respondents assert that the Court lacks jurisdiction to hear the application, alleging it was filed out of time and not in compliance with the relevant provisions of the Migration Act. Those issues were raised in the response served on the applicant on 18 January 2007.
Findings of the Court
The Court finds that the applicant was notified of the decision of the Tribunal that “his case was refused” in March 2004 (Affidavit of applicant dated 22 November 2006, Annexure A which is a letter headed “Dear Judge or Federal Magistrates Court”). The Court drew the attention of the applicant to the following passage in that letter:
In about March 2004 my agent called me telling me that my case was refused.
The applicant has stated in Court that that letter is true. The applicant has given evidence in Court that his agent, who he described as “Lily”, was acting for him when the Tribunal handed down its decision.
Apart from that notification, a copy of the decision was sent to the applicant at the residential address he gave to the Tribunal (CB 49) on or around 18 March 2004. The Court makes that observation from a number of matters including CB 68 where it is recorded that a copy of the decision was sent to the applicant by registered post, and at CB 69 which is a copy of a letter to the applicant from the District Registrar of the Tribunal enclosing a copy of the Tribunal’s decisions and the reasons for it. In his evidence in Court the applicant said he received a copy of the decision shortly after it was handed down on 18 March 2004. The Court is satisfied that the applicant was notified in accordance with s.379A(4). The applicant therefore received notification of the decision in or around March 2004.
Section 42 of Part 2 to the Migration Litigation Reform Act 2005 provides that where proceedings are commenced on or after the commencement day (1 December 2005) (here commenced
23 November 2006) in relation to a migration decision made before the commencement day (here made on 27 February 2004) and actual notification is given before the commencement day (here notified in March 2004) s.477 applies as if the actual notification of the decision took place on the commencement day (1 December 2005).
The applicant was notified of the decision in or around March 2004. Therefore actual notification is taken to be 1 December 2005. Application to the Court was not made until 23 November 2006 (over 1 year later). It was therefore made outside the time limit imposed by s.477. Section 477 provides:
(1)An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.
(2)The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
(a)an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
(b)the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3)Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.
(4)The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.
Sub-section (3) prohibits the Court from making an order extending the time for lodgement unless an application is made within 84 days of actual notification. No such application has been made. The Court finds that the application was made out of time. The Court is prohibited from extending the time for making an application.
Granting prerogative relief is discretionary. Even if the applicant was not “actually notified” of the decision until 18 November 2006 (Affidavit of Applicant, 22 November 2006, Exhibit A), the Court would refuse relief as a matter of discretion, as the conduct of the applicant in receiving notification of the decision in March 2004, and delaying lodgement until 23 November 2006 is inconsistent with being granted relief.
The reason the applicant decided not “do the next step” after notification of the decision was the fees he discussed with his advisor, of doing so. Obviously the applicant was then considering seeking a review of the decision, and he decided not to do so. He was aware of his right to seek a review but decided not to do so. When he became aware that he could apply for legal aid he lodged his application. As a matter of discretion the Court would refuse relief.
However, the Court will proceed to consider the grounds of the application. This is an application to show cause, therefore the application itself must raise an arguable case: Rule 44.12(1)(a).
The application
In his application, the applicant set out two grounds for review as follows:
Ground 1
The Applicant claimed that he was sickly as a boy. His friends and relatives read a book Falun Dafa and exercised together. He read the book and commenced the exercise. When he came across difficulties in understanding the book he sought help from his relatives and friends. They practiced together and his health improved. He assisted the district organize Falun Gong activities and became an active practitioner. One day when they practiced, the Public Security Bureau attended and shouted loudly and threatened them. They took no notice and they took them away and detained them in a black room and tortured them. One night the applicant and the other hit the guard and escaped from the black room. The Tribunal didn’t believe the fact. The Tribunal fell into jurisdictional error in making the finding.
Ground 2
The applicant claimed that the Tribunal didn’t accept that if the PSB was looking for the applicant he wouldn’t be allowed to leave the PRC. The PSB didn’t allow him to leave but he opened up channels by contacts. He spent money to get through and for a person to accompany him to the airport. Whilst he’s been in Australia, the Chinese Foreign Affairs officers in Hebei Province have been dismissed because of the applicant and whole group of people who came to Australia that have not returned to PRC. The PSB is following up the issue of who issued the passports. But the Tribunal didn’t believe his claims. The Tribunal fell into jurisdictional error in making this finding.
The applicant has not filed an amended application.
The applicant gave evidence in Court and was invited to make submissions in support of his application.
Ground 1 complains that the Tribunal did not believe that one night the applicant and another person hit a guard and escaped (CB 82.10). That finding of fact was open to the Tribunal and this ground is rejected.
Ground 2 complains that the Tribunal did not believe matters of fact set out in that ground. Those findings are set out on CB 78.5. The Court finds that those conclusions were properly open to the Tribunal on the material before it. Having made numerous adverse findings as to the credibility of the applicant, the Tribunal concluded at CB 84.2 that the applicant was not a credible witness, and it did not believe any of his claims. Having regard to the adverse findings on virtually all claims made by the applicant, it was properly open to the Tribunal to make a general adverse finding of credibility and reject the remainder of his claims, as set out on CB 84.
Therefore, if there was a valid application before the Court, the Court would reject the grounds in it, and find that it does not raise an arguable case. The Court would therefore dismiss the application pursuant to Rule 44.12(1)(a).
However, the Court finds that there is no valid application before it and dismisses the application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 21 May 2007
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