SZLHP v Minister for Immigration & Anor
[2007] FMCA 1675
•12 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLHP v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1675 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision of a decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of the People’s Republic of China – applicant seeking an extension of time – no reviewable error. PRACTICE & PROCEDURE – Extension of time – injunction. |
| Migration Act 1958 (Cth), ss.48B, 417 |
| SZFDE v Minister for Immigration & Citizenship [2007] HCA 732 |
| Applicant: | SZLHP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2815 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 September 2007 |
| Date of Last Submission: | 12 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Solicitors for the Applicant: | Nil |
| Solicitors for the Respondents: | Ms D. Watson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Refugee Review Tribunal is joined as second respondent to the application.
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $750.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2815 of 2007
| SZLHP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicant who appears to be a citizen of the Peoples Republic of China seeks an extension of time to file and serve a Notice of Review application.
He has filed an application for review of a decision of the Refugee Review Tribunal to be declared void. He has also sought an order that the application be remitted to another Refugee Review Tribunal differently constituted for further consideration an order according to law and an order that the respondent pay the applicant's costs.
Presumably, he applies for an interlocutory injunction prohibiting the respondent Minister for Immigration and Citizenship from removing him from Australia pending the finding in these proceedings.
The applicant, from the evidence before me, appears to be a citizen of the Peoples Republic of China and I rely on a permit entry issued by the Consulate General of the Peoples Republic of China which has been admitted into evidence before me.
He arrived in Australia on 30th December 1997 on an Indonesian passport on what appears to be a false name. He applied for a Protection Visa on 13th February 1998, but it was refused on
19th February 1998. He sought a review of that decision from the Refugee Review Tribunal on 22nd March 1998. The Tribunal wrote to the applicant on 3rd November 1998 inviting him to attend a hearing.
The hearing was originally scheduled for 5th January 1999, but the day before the hearing the applicant forwarded a doctor's certificate saying that he would be unfit for the following two days. The Tribunal set a further date for the hearing on 21st January 1999, the applicant did not attend, the Tribunal proceeded to make a decision on the review without providing a further opportunity to the applicant to attend the hearing and give evidence.
The Tribunal noted from the applicant's primary application that he claimed a fear of persecution if he were to return to the Republic of Indonesia on five bases:
(1) he is of Huan Chinese descendant and therefore been excluded from Indonesian society, that is for reasons of his race.
(2)he was a Christian and this is a minority religion not permitted to practice in Indonesian, that is for reasons of his religious beliefs.
(3)because he is neither Chinese nor an Indonesian, that is for reasons of his nationality.
(4)he is a social outcast as a Chinese descendent, that is the reason that his membership of a social group.
(5)his political opinions are different from that of the local government in power in Indonesia, that is the reason of his political opinion. He said that he was heavily and actively involved in pro-democracy activities in China and was persecuted by Chinese authorities too.
The Tribunal considered that material, sparse though it was and noted that the applicant had not attended. The Tribunal set out the steps that it took to advise the applicant of the hearing and adjourned the hearing at the applicant's request as a result of a medical certificate and noted that the applicant did not attend the second hearing.
The Tribunal found that a number of relevant questions relating to the applicant's ethnicity, his time spent in China, the practice of his religion and his political affiliations were therefore left unanswered and was not satisfied on the evidence that the applicant had a well founded fear of persecution in the normal Convention. That decision was signed on 24th January 1999.
The applicant claims that he should be granted relief on three grounds:
(1)he said that his case fitted the situation and findings in SZFDE v Minister for Immigration & Citizenship [2007] HCA 732 where third-party fraud was perpetrated by the Migration Agent.
(2)that the Tribunal came to a wrong conclusion based on a lack of information from him by the reason of his Migration Agent advising him he should not attend the Refugee Review Tribunal hearing.
(3)he had never been given the chance to respond to the concerns of the Tribunal or to correct wrong information put in his Protection Visa application.
In his affidavit, the applicant indicates that on 7th September 2007 he applied to the Refugee Review Tribunal for a copy of his Refugee Review Tribunal Decision and on Monday 10th September 2007 he told a visitor at the Villawood Detention Centre that he was very afraid that he would be deported. He went on to say that on Tuesday
11th September 2007, he was informed by the Department that he would be deported at 9:30 am on Thursday 13th September 2007 and he was very frightened and was angry that he had been wrongly advised by the Agent.
His story is that in 1997 he was introduced to a female Migration Agent in Bankstown whose name was something like Ang Qi, he was introduced by a friend he boarded with, he had no idea of the legal system, he could not speak English, he paid the Agent $1,500.00 and the Agent said "Just give me the money, I will do the rest". He said he never signed any protection visa documents. Months later his Migration Agent told him that he had a hearing with the Refugee Review Tribunal and said something like "Great, you should not go to the hearing because you will not win and they will arrest you at the hearing", so he did not go.
He claimed that in China he was part of the Christian Underground Church and took an active part in the activities of his church as did his mother and brother. He claimed harassment by the police. He claimed that at the time of writing this account he did not have a copy of his Refugee Review Tribunal Decision and he said that his real story has never been told or assessed in regards to his application for protection in Australia under the Refugees Convention.
Against this, it appears that the applicant has been in immigration detention since 18th May 2006. On 9th May 2007, he signed a request for removal from Australia. By that stage he was using his real name and a travel document had been obtained for him, namely a permit for entry. He has made a number of applications for Ministerial intervention under s.417 of the Migration Act and has also made applications under s.48B of the Act. Indeed, it appears that the applicant's first application for Ministerial intervention was made as long ago as 11th August 1999 and he was informed that was unsuccessful on 3rd December 1999.
It appears that until now he has never commenced any proceedings in either the Federal Court or in this Court for review of the Tribunal Decision. It is difficult to see how the applicant, having been in immigration detention since 18th May 2006, a period of well over a year, would only have commenced proceedings in this Court today
12th September 2007 virtually at the eleventh hour before he is removed from Australia.
The applicant has not explained the significant delay. The applicant's evidence does not indicate that has an arguable case in respect of fraud perpetrated by the Migration Agent as discussed by the High Court of Australia in SZFDE v Minister for Immigration & Citizenship (supra). It is not sufficient for an applicant to assert and nothing more that the applicant did not attend the hearing because his Migration Agent told him not to.
Fraud is a serious application and needs to be proved as it was in SZFDE. In my view, this is a matter that falls far short of the situation in SZFDE and it does not appear to me that the substantive application on its face would have any reasonable prospect of success. In any event, the delay in bringing proceedings, whether from August 1999 when the applicant brought his first request for Ministerial intervention, or from May 2006, when the applicant was taken into immigration detention, is to my mind a convincing reason by the Court should exercise its discretion not to grant relief.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 4 October 2007
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