SZLVQ v Minister for Immigration
[2008] FMCA 289
•10 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLVQ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 289 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – applicant not believed – application filed outside 28 days limitation period in s.477 of the Migration Act 1958 (Cth) – no extension of time requested within 84 days of actual notification of Tribunal decision – application incompetent. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 477 |
| SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39 |
| Applicant: | SZLVQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3989 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 10 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 10 March 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms M Palmer Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed as incompetent and (in the alternative) pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3989 of 2007
| SZLVQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 29 November 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution based upon her practice of Falun Gong. Background facts relating to the applicant's claims and the Tribunal decision on them are conveniently summarised in the Minister's outline of legal submissions filed on 3 March 2008. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 3 to 8 of those submissions:
The applicant, a citizen of the Peoples Republic of China (“PRC”), claimed in a statement attached to her protection visa application to fear persecution from the Chinese authorities due to her involvement in Falun Gong. The applicant claimed that she began to practice Falun Gong in 1997 and that she continued to practice after the crack down in July 1999. As a result of her practice of Falun Gong the applicant claimed to have been detained for two days by police and was physically abused. In March 2007, the applicant was arrested again, however she was released after her husband paid a bribe: court book (“CB”) 27.
On 8 October 2007, the applicant was invited to attend a hearing before the Tribunal: CB 44-45. On 9 October 2007, the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) requesting comments on the fact that the applicant was able to depart the PRC legally with her own passport and also that she was granted a visitor’s visa on 18 May 2007 but did not arrive in Australia until 17 June 2007: CB 46-47. The applicant did not respond to the invitation to comment.
The applicant attended a hearing before the Tribunal on 5 November 2007: CB 49.
On the basis of the evidence before it the Tribunal found that the applicant was not a credible witness and had not been truthful in her claims. The Tribunal rejected the applicant’s claims for the following reasons (see CB 74-76):
(a)the applicant claimed that she began practising Falun Gong in 1997, however, she was unable to state the verses for the Falun Gong exercises;
(b)the applicant was evasive when questioned about her activities as the organiser of a Falun Gong group in the PRC;
(c)the applicant experienced difficulty explaining the philosophy of Falun Gong despite her claims that she assisted in teaching Falun Gong. The Tribunal was not satisfied that the applicant had any “meaningful knowledge about its philosophy which is inconsistent with her claimed involvement as a Falun Gong leader and practitioner”: CB 74.8;
(d)the Tribunal considered that it was implausible that the applicant would be considered to be a Falun Gong leader in circumstances where she ceased practising in 2000;
(e)the Tribunal considered that the applicant’s evidence in relation to her passport was inconsistent, in circumstances where she claimed initially to have obtained the passport legally with no difficulties and then claimed that she paid money to obtain her passport.
The Tribunal considered the applicant’s evidence relating to her practice of Falun Gong in Australia. However, given its adverse credibility findings the Tribunal was not satisfied that the applicant “had engaged in Falun Gong activities in Australia, otherwise than for the purpose of strengthening her application for a protection visa”: CB 77.4.
On the basis of the applicant’s oral evidence the Tribunal was not satisfied that the applicant was a genuine or committed Falun Gong practitioner and that she had no ongoing interest: CB 77.7. The Tribunal was not satisfied that the applicant had suffered Convention based persecution or that there was a real chance she would be persecuted if she returned to the PRC.
The applicant relies upon her show cause application filed on 31 December 2007. She also relies upon her accompanying affidavit which annexed a copy of the Tribunal decision.
I received as evidence the court book filed on 1 February 2008. I also received as evidence exhibit A1 which is a letter dated 26 February 2008 from the applicant to the Court. I received that letter having warned the applicant that its disclosure would amount to a waiver of privilege in legal advice provided to her by her panel advisor appointed under the Minister's panel advice scheme. The applicant agreed that she wished to waive privilege in that advice. The letter discloses that the panel advisor advised the applicant that there is no error or unfairness in the decision of the Tribunal and that he advised her not to continue her case. The letter goes on to state that the applicant disputes that opinion.
Prior to coming on the bench today and on reviewing the file it occurred to me that the Court lacks jurisdiction in this matter. I have come to that view on the basis of s.477 of the Migration Act:
(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.
The Tribunal decision was handed down on 29 November 2007. A handing down information form[1] discloses that the applicant attended the handing down in person and was personally handed a copy of the Tribunal decision and the accompanying letter[2]. She acknowledged receipt of the decision record and notification letter by signing for it. In the circumstances it appears indisputable that the applicant was actually notified of the Tribunal decision on 29 November 2007. The show cause application filed on 31 December 2007 itself asserts actual notification on 29 November 2007. It follows that the show cause application was filed three days late. The 28 day period prescribed by s.477 expired on 27 December 2007.
[1] CB 58
[2] CB 59
In the circumstances the applicant should have requested an extension of time. She did not do so. In answer to the question whether an extension of time was sought the applicant circled the word "no" on the show cause application form. Unfortunately, it did not occur to the applicant or me or the Minister's legal representatives until today that an extension of time was required.
It would have been open to me to grant an extension of time for the filing of the application up to 84 days after 29 November 2007. That period expired on 21 February 2008. By my calculation, 102 days have now passed since the date of actual notification. It is no longer possible for the Court to grant a request for an extension of time if one had been made now[3].
[3] SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39
However, the applicant contended from the Bar Table that she posted her application to the Court eight days before it was filed on 31 December 2007. I do not think an application is “made” for the purposes of s.477 of the Migration Act until it is received by the Court. However, in view of the possibility that I could be wrong in that I have considered what the position would be if the Court did have jurisdiction to entertain the application.
The show cause application simply invites the Court to review the merits of the Tribunal decision. The applicant confirmed that in her oral submissions. The applicant's panel advisor could see no jurisdictional error in the decision of the Tribunal: neither can I. The Minister's submissions assert that there is no arguable case of jurisdictional error. I agree.
I will order that the application be dismissed as incompetent and (in the alternative) pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
Costs should follow the event in this case. The Minister seeks scale costs in the sum of $2,500. The applicant asserts an inability to pay, but that is not a reason for the Court to refrain from making a costs order. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 March 2008
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