SZJUJ v Minister for Immigration
[2008] FMCA 29
•15 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJUJ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 29 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution for reasons of his membership of Falun Gong – credibility – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.91X |
| Refugee Review Tribunal & Anor; Re Ex parte H (2001) 75 ALJR 982 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | SZJUJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2974 of 2007 |
| Judgment of: | Howard FM |
| Hearing date: | 15 January 2008 |
| Date of last submission: | 15 January 2008 |
| Delivered at: | Sydney |
| Delivered on: | 15 January 2008 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms McDonald |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the amount of $3,500.00. The Applicant has six (6) months to pay the costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2974 of 2007
| SZJUJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for judicial review brought by the Applicant.
Background
The Applicant is 55 years of age. He arrived in Australia on 3rd October 2002 and applied for a Protection visa on 1st November 2002. His original application for a protection visa was refused by a delegate of the First Respondent on 5th December 2002. The Applicant therefore applied to the Refugee Review Tribunal (RRT) for review of that original decision. On 21st October 2003 a decision was handed down by the RRT.
By consent on 10th April 2007 there was an order made by the Federal Magistrates Court of Australia quashing that first decision. A second decision was made by the RRT in 2007. The Applicant provided a written statement as well as letters from supporting witnesses. He also gave oral evidence before the RRT on 13th June 2007. The RRT made a decision on 31st July 2007 affirming the delegate’s decision. The decision was handed down on 21st August 2007. The Applicant has applied to this Court for judicial review of the decision of the RRT made on 31st July 2007 and handed down on 21st August 2007.
Essentially the Applicant has stated that he is a member of Falun Gong and because of this he has suffered persecution and fears further persecution should he have to return to live in China. The Refugee Review Tribunal, having considered all of the available evidence, did not believe the Applicant. Therefore the Tribunal made findings against the Applicant’s credibility.
Application for Judicial Review
In the Applicant’s application for review filed in this Court on 26th September 2007 he set out the following grounds:
“In early 1995 I started practicing Falun Gong and in March 1996 I had the honour to Shenyang to receive the training. Several thousand practitioners across China attended the training session where I had the great honour of listen to my Master, Mr Hong Zhi Li’s speech, which I will never forget. It is a great pity that the Tribunal Member did not believe the fact.
The Chinese authorities searched my home in 1999 and I went to Rizhao City for hiding until I departure from China but the Tribunal Member also did not believe the fact. The Tribunal made errors in making the finding.”
The Applicant is self-represented and has attended today with the assistance of a Mandarin interpreter.
Preliminary Application - Granting Extension of Time
On 5th November 2007, there was a Notice of Objection to Competency filed by the First Respondent. The objection is based on the fact that the application for judicial review by this Court was filed out of time. It seems to me that the Applicant’s application to extend the time limit essentially should be deemed to have been effective from that date. I note that on the very next day, 6th November, an order was made by Lloyd-Jones FM which contemplated that there would be a preliminary application today. The First Respondent argues that the substantive application has no prospects of success and the extension of the time limit should therefore not be granted.
The Court does have the power to make the order sought to extend the time limit under section 477 of the Migration Act 1958.
Section 477 - Time limits on applications to the Federal Magistrates Court
(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.
In relation to this preliminary application, I have accepted into evidence the affidavit of the Applicant. This affidavit was affirmed on 12th September 2007 and sets out his explanation as to what occurred in relation to the filing of his application for review of the decision of the Refugee Review Tribunal handed down on 21 August 2007. I will refer to it as the second decision of the Refugee Review Tribunal.
Under section 477(2) of the Act, the Court does have the power to extend the time limit. I consider that s.477(2)(a) has been satisfied. In relation to s.477(2)(b), the Court has to be satisfied that it is in the interests of the administration of justice to grant the extension.
In my view, having regard to the explanation provided by the Applicant, I do consider that it is in the interests of the administration of justice to grant to the Applicant the extension of the time limit which will enable his application to be heard and considered today.
I note that a copy of that affidavit (affirmed on 12th September 2007) was apparently filed in the Court on 26th September 2007. A copy of it was not provided to the First Respondent. My associate will provide to the legal representative of the First Respondent a copy of that affidavit at the conclusion of today’s hearing.
Ms McDonald did also submit, on behalf of the First Respondent, that the First Respondent considers that there are limited or no grounds or prospects of the Applicant succeeding with the substantive application and hence the extension should not be granted.
In my view, the interests of the administration of justice are best served in this case by exercising my discretion in favour of the Applicant to grant the extension of time to allow his application to be heard.
Substantive Application
In making his submissions today the Applicant commented that he had felt insulted by some of the questions which were put to him by the Tribunal Member. The nature of the Refugee Review Tribunal hearing is inquisitorial. The Member is required to undertake an investigation of the facts and in order to do so must ask questions of the Applicant.
Sometimes an applicant may consider those questions to be insulting or those questions may make the applicant feel uneasy. I have considered the Court Book (Exhibit 1) in particular the decision of the Refugee Review Tribunal and I have had regard to the submissions made by the Applicant (in particular his complaints concerning the type of questions that were asked). I conclude that there was not anything improper in the questioning, the content of the questions, or the manner in which they were asked.
The Applicant also pointed out today, indeed, told the Court that he has a big problem concerning the lack of a work permit. This Court does not have any jurisdiction to make any orders concerning the Applicant’s work status under his current visa arrangements. There is certainly no application in that regard.
The Court also explained to the Applicant today that the nature of these proceedings is a judicial review of the Refugee Review Tribunal decision. In a case entitled Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002[1], Kirby J of the High Court gave a summary of the nature of judicial review.
“Regardless of the supervisory jurisdiction invoked in a particular case, judicial review is said to be limited to reviewing the legality of administrative action. Such review, ordinarily, does not enter upon a consideration of the factual merits of the individual decision. The grounds of judicial review ought not be used as a basis for a complete re-evaluation of the findings of fact, a reconsideration of the merits of the case or a re-litigation of the arguments that have been ventilated, and that failed, before the person designated as the repository of the decision-making power”.[2]
[1] (2003) 198 ALR 59
[2] M. Aronson, B. Dyer and M. Groves, ‘Judicial Review of Administrative Action’ 3rd Edition, Thomson Lawbook Co, 2004, p.180. This quotation appears in this text.
In summary, therefore, it is not the role of this Court to basically hear the whole case again. As a result of section 474 of the Migration Act (1958) and the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia[3], judicial review of this decision by the Refugee Review Tribunal effectively can only take place in a situation where there has been jurisdictional error. That is to say, orders can only be made quashing or setting aside the earlier decision in a situation where this Court finds some jurisdictional error.
[3] (2003) 211 CLR 476
Conclusion
In this case there has been no transcript filed of the proceedings before the Refugee Review Tribunal. There is no ground stated by the Applicant that could be construed as a jurisdictional error. The Applicant does feel aggrieved by the nature of the questioning at the Tribunal hearing but there is nothing whatsoever to suggest that the Applicant did not receive a fair hearing. He was accorded procedural fairness. He had the opportunity to appear at the Tribunal hearing to give evidence and to rely upon witness statements.
It was explained to the Applicant in the course of these proceedings that in a given case, and I do not say that this is such a case, a court in the position of this Court may not necessarily agree with an earlier decision such as a decision of the Refugee Review Tribunal. But unless an applicant for judicial review can point to some jurisdictional error, this Court simply cannot intervene and alter or set aside the earlier decision.
The Applicant in this case is, as I have already noted, self-represented. It is incumbent upon the Court in such a situation to do its best to see if there are any other grounds for review that have not been identified by the Applicant himself. I have read the Court Book and read the file and heard the submissions. I have not been able to identify any reviewable error. I have not been able to identify any jurisdictional error by the Refugee Review Tribunal. This therefore leads me to the inexorable conclusion that this application must be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Howard FM
Associate: V Lee
Date: 16 January 2008
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