SZMQE v Minister for Immigration
[2008] FMCA 1474
•5 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMQE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1474 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – competency – Notice of Objection to competency – application out of time – delay – jurisdictional error – failure to comply with Migration Act 1958 (Cth) s.426 – discretionary refusal of relief – exceptional circumstance – where applicant’s claim for a protection visa was fabricated. |
| Migration Act 1958 (Cth) ss.417, 426, 477 Migration Litigation Reform Act 2005 (Cth) Schedule 1, Item 42 |
| Sook v Minister for Immigration and Multicultural Affairs (1999) 86 FCR 584 SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 SZLAS v Minister for Immigration and Citizenship [2007] FMCA 1928 Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105 SZIIU v Minister for Immigration and Citizenship [2008] FMCA 69 SZKNX v Minister for Immigration and Citizenship [2008] FCAFC 176 followed. M211 of 2003 v Minister for Immigration and Multicultural Affairs (2004) 212 ALR 520 Applicant M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 followed S58 of 2003 v Minister for Immigration & Multicultural Affairs [2004] FCAFC 283 followed. Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 followed SZEXZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 449 followed SZKGF v Minister for Immigration & Citizenship [2008] FCAFC 84 followed. SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122 distinguished. |
| Applicant: | SZMQE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2079 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 23 October 2008 |
| Date of Last Submission: | 23 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 5 November 2008 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed as incompetent.
The applicant is to pay the first respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2079 of 2008
| SZMQE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant, who claims to be a citizen of China, asks the Court to set aside a decision of the Refugee Review Tribunal made on 11th March 1999. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant asks the Court to make orders setting aside the Tribunal decision and remitting his application to the Tribunal for reconsideration.
The first respondent, the Minister for Immigration and Citizenship, objects to the competency of the application, claiming it has been filed out of time.
Background
The applicant arrived in Australia on 28th December 1997. He travelled on an Indonesian passport. He applied for a Protection visa (866) on 10th February 1998, claiming to be an Indonesian of Han Chinese ethnicity. He claimed the Indonesian Government and authorities were persecuting people who were descendants of Chinese in Indonesia.
A delegate of the Minister for Immigration and Ethnic Affairs refused the application for a visa on 21st February 1998.
Application for Review by the Refugee Review Tribunal
The applicant applied to the Refugee Review Tribunal for review of that decision on 27th March 1998. In his application he gave a Post Office Box number in suburban Sydney as his address for service.
The Tribunal wrote to the applicant on 31st March 1998, advising him that it would conduct a “review on the papers” to determine whether it could make a decision in his favour immediately.[1]
[1] Court Book 59
On 6th October 1998 the Tribunal again wrote to the applicant, sending him a document entitled “Notice Under Section 426 Of The Migration Act 1958”, enclosing a “Response to Hearing Offer” for him to complete and return.[2] The applicant completed that form, advising that he wanted to attend a hearing and needed an interpreter in the language. That document was returned to the Tribunal on 27th October 1998.
[2] Court Book 61
The applicant attended a hearing of the Tribunal on 16th February 1999, where he gave evidence with the assistance of a Mandarin interpreter.
The Refugee Review Tribunal Decision
The Tribunal signed its decision on 10th March 1999 and posted a copy to the applicant the next day, 11th March. The Tribunal affirmed the decision not to grant the applicant a protection visa. The Tribunal’s Decision and Reasons for Decision set out the applicant’s claims in his initial application to the Department and gave a detailed summary of the applicant’s evidence at the oral hearing. The Reasons for Decision also referred to Independent Information about discrimination towards ethnic Chinese in Indonesia.[3]
[3] Court Book 74 - 88
The Tribunal’s Findings and Reasons
The Tribunal noted that the applicant feared returning to Indonesia because he claimed that the Indonesian government persecuted the Chinese, especially in December 1997 when he left Indonesia. The Tribunal noted that the applicant claimed that he had suffered harm because he was a Christian.
However, the Tribunal found the applicant to be:
an unsatisfactory witness whose story lacked credibility.[4]
[4] Court Book 88
Apart from its adverse finding about the applicant’s credibility, the Tribunal found that the independent evidence did not support the applicant’s claim that the Indonesian government was persecuting the Chinese in Indonesia in 1997.
The Tribunal also considered the applicant’s claim that he had suffered harm because of his religion. However, the Tribunal found that the applicant could not state what Christian religion he belonged to or the name of the Church he attended, nor could he provide details of any harm he had suffered for this reason. The Tribunal found that the applicant did not have a well founded fear of persecution for the reason of his religion.
The Tribunal made this finding:
Due to problems with the applicant’s credibility, the Tribunal is not satisfied that the applicant has a fear of persecution in Indonesia for reasons of his race or religion. Even if the applicant were to fear harm, the Tribunal finds that the applicant would not lack the protection of the Indonesian state should he return to Indonesia. Moreover the Tribunal finds that it would be reasonable to relocate elsewhere in Indonesia to avoid any harm he may fear during periods of unrest.[5]
[5] Court Book 93
The Tribunal was not satisfied that the applicant had a well founded fear of persecution in Indonesia for a Convention reason and was therefore not satisfied that he was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
Application for Judicial Review
The applicant commenced proceedings in this Court by filing an application and an affidavit in support on 12th August 2008. He was then in Immigration detention, although he has since been released into the community.
The applicant claims in his application that he was notified of the Tribunal decision on 20th April 2008 and he applies for an order that the time for making the application be extended under s 477 of the Act.
He relies on these grounds of review:
(1)The Tribunal reached the decision based on false information fabricated by my migration agent. The agent misled me by advising that I had to follow whatever he said. He took advantage of my lack of legal knowledge.
(2)My true persecution experience back in China has never reached the delegate and the Tribunal. Therefore the jurisdiction of the Tribunal remains unexecuted.
The applicant’s affidavit, annexing a copy of the Tribunal decision, states:
(1)I am the applicant of this application. All the information provided is true.
(2)I have been persecuted by Chinese authority because of my Christian belief.
The applicant has not filed any other affidavit evidence, nor has he filed any written outline of submissions. He attended Court and made oral submissions.
The applicant told the Court he was no longer in detention. He said that he is actually Chinese and not Indonesian. He said that when he came to Australia he knew nothing about the law, nor did he speak English. He went to a migration agent, whose name he could not recall, but said that the man lived in the suburb of Blacktown. The agent helped him lodge his application for a protection visa and charged him about $800 or $900.
The applicant said that he told the agent that he was a member of an underground Church in China and was persecuted by the Chinese government. He said that the agent knew his situation but told him that since he had used an Indonesian passport to enter Australia he could only apply for a protection visa on the Indonesian passport. The applicant told the Court that he was in doubt about that course of action but he was also worried that he would be sent back to China, so he agreed. He now realises that this was a mistake.
The applicant said that the agent told him not to worry because he would prepare everything. Before going to the Refugee Review Tribunal he was given a statement by the agent and told to answer the Tribunal’s questions from that statement. What was on the statement was nothing to do with his real story. The story in his statement was fabricated by the migration agent.
Because the applicant’s story was fabricated by the agent, it was rejected by the Refugee Review Tribunal. The applicant blamed the agent for not being able to tell his real story and asked for a new hearing before the Tribunal so that he could tell his real story.
The First Respondent’s submissions
Counsel for the first respondent, the Minister for Immigration and Citizenship, conceded that the Tribunal failed to comply with subsection 426(1) (b) of the Migration Act as it applied then, and this constitutes jurisdictional error. Mr Smith, who appeared for the Minister, submitted that the real issue is whether the proceedings are competent and, if the proceedings are competent, whether relief ought to be refused in the exercise of the Court’s discretion.
Mr Smith submitted that there was a defect in the notice of invitation to the applicant under s 425A because s 426 of the Act requires the notice of invitation to include notification of the effect of subsection 426(2), which refers to a 7 day time limit for giving the Tribunal notice that the applicant wants the Tribunal to obtain oral evidence from a named person or persons, and the notice in this case did not do so. Failure to refer to the 7 day time limit in s 426(2) is a failure to comply with subsection 426(1)(b), which is a jurisdictional error (see Sook v Minister for Immigration and Multicultural Affairs[6]; SZICU v Minister for Immigration and Citizenship[7] and SZLAS v Minister for Immigration and Citizenship[8]).
[6] (1999) 86 FCR 584
[7] [2008] FCAFC 1
[8] [2007] FMCA 1928
Mr Smith further submitted that the Tribunal sent a copy of its Statement of Reasons for Decision to the applicant by letter dated 11th March 1999. The applicant only lodged his application for review on 12th August 2008. In that application he indicates that he was only notified of the decision on 20th April 2008. Even if that assertion is accepted, the application is out of time under s 477. However, Mr Smith submitted that the applicant received the decision, including the Statement of Reasons, much earlier than April 2008. The applicant had written to the then Minister for Immigration and Multicultural Affairs on 1st August 1999, seeking the exercise of the Minister’s discretion under s 417 of the Act. It is submitted that from the text of the letter an inference arises that the applicant had received and read a copy of the Tribunal’s decision at the time at the time he wrote to the Minister.
The transitional provisions of the Migration Litigation Reform Act 2005 (Cth), Schedule 1, Item 42 and s 477 of the Migration Act 1958 meant that the applicant had 28 days from 1 December 2005 to lodge an application for review as of right and a further period totalling 84 days, during which time the Court could, in its discretion, extend the period for making an application.
Significantly, Mr Smith submitted that the requirement in Minister for Immigration and Citizenship v SZKKC[9] that the applicant should be personally served in order for there to be actual service does not apply, because the Migration Act as it applied at the time did not establish a code for notification and there was no equivalent of the current sections 430B (6) and 441C which were critical to the decision in SZKKC (see SZIIU v Minister for Immigration and Citizenship[10] at [5]).
[9] [2007] FCAFC 105
[10] [2008] FMCA 69
Mr Smith also drew the Court’s attention to the decision of the Full Court of the Federal Court in SZKNX v Minister for Immigration and Citizenship[11], where the Court held at [25]:
Irrespective of how the Tribunal has complied with its obligation under s 430(2), if an applicant has physically received a copy of the Tribunal’s decision and reasons, as has happened in the present case, there has been actual notification of the decision for the purposes of s 477.
[11] [2008] FCAFC 176
Thus, it is submitted, the application should be dismissed as incompetent.
Mr Smith also submitted that, even if the application is not incompetent, it should be dismissed in the exercise of the Court’s discretion for two reasons:
(1)There has been an inordinate delay between the date upon which the applicant became aware of the Tribunal’s decision and the date of filing of the application for judicial review. Whilst the applicant applied to the Minister for the exercise of his discretion under s 417, without more evidence there is not a sufficient explanation for the delay (see M211 of 2003 v Minister for Immigration and Multicultural Affairs[12] at [22]-[24]; Applicant M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs[13] at [6]).
(2)The procedural error made by the Tribunal did not have any impact on its decision or upon the procedural fairness. The applicant forwarded a document to the Tribunal on 26 October 1998, received by the tribunal the next day, in which he indicated he did not wish the Tribunal to take any oral evidence from any witness. He attended the hearing and gave evidence.
[12] (2004) 212 ALR 520
[13] [2005] FCA 195
As a final point, Mr Smith submitted that the applicant’s grounds have no merit. There is no proof in support of the applicant’s claim that his migration agent fabricated the information for his protection visa application and said that he had to follow whatever the agent said. The second ground relates to the applicant’s experience in China and is relevant only to the merits of his application for a protection visa and not to the application before the Court.
Conclusions
The first point to be made is that the Tribunal did make a jurisdictional error by failing to comply with s 426 of the Migration Act. The relevant parts of the section say:
(a)In the notice under s 425A, the Tribunal must notify the applicant:
(a)that he or she is invited to appear before the Tribunal to give evidence; and
(b)of the effect of subsection (2) of this section
(b)The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
The letter sent to the applicant dated 6 October 1998 said:
You now need to tell the Tribunal
· Whether or not you want to come to the Tribunal to give oral evidence; and
· Whether or not you want to ask the Tribunal to obtain evidence from other people.
PLEASE COMPLETE THE ENCLOSED “RESPONSE TO HEARING OFFER” FORM AND RETURN IT TO THE TRIBUNAL WITHIN 21 DAYS OF THE DATE OF THIS LETTER
If you want the Tribunal to take oral evidence from another person or persons, please complete the ‘witness’ details on the enclosed form. The Tribunal will consider your wishes but it does not have to take evidence from any witness you name.[14]
[14] Court Book 61
The applicant completed the Response to Hearing Offer and signed it on 26th October 1998. The Tribunal’s date stamp shows that it was received the next day. On that form, the applicant (or someone on his behalf) placed a tick in the box marked “no” next to the question:
Do you want the Tribunal to take oral evidence from any witnesses?[15]
[15] Court Book 63
Clearly, the Tribunal’s letter to the applicant did not comply with s 426(1) (b) as it did not notify the applicant of the effect of subsection 426(2). This is a jurisdictional error.
However, this error had no effect on the Tribunal hearing and did not in any way affect the applicant’s ability to present his case. He attended the hearing and gave evidence. He had indicated on the Response to Hearing Offer that he did not want the Tribunal to take oral evidence from any witnesses.
The first matter to be considered is whether the application is competent.
When the applicant applied to the Tribunal, he gave his address for correspondence as PO Box 289 Regents Park NSW 2143. The Tribunal wrote to him at that address on 31st March 1998, acknowledging receipt of his application.
The Tribunal wrote to the applicant again at that same address on 6th October 1998, enclosing a Response to Hearing Offer. The applicant completed that document and returned it to the Tribunal on 27th
October 1998. In that document, he again gave his postal address as:PO Box 289 Regents Park 2143.[16]
[16] Court Book 63
The Tribunal wrote to the applicant at that same address on 9th December 1998, inviting him to attend a hearing on 2nd February 1999. That hearing had to be postponed and the Tribunal wrote to the applicant on 13th January 1999 at that same address, informing him that the hearing was to take place on 16th February 1999. The applicant attended that hearing and gave evidence.
The Tribunal posted a copy of its decision and reasons to the applicant on 11th March 1999. The letter was sent by registered post.[17] There is nothing in the Court Book to show that the letter was returned unclaimed.
[17] Court Book 72
The applicant wrote to the Minister for Immigration and Multicultural Affairs, the Hon Philip Ruddock, seeking ministerial intervention under s 417 of the Migration Act. The letter is dated 21 March 1999 but it bears a handwritten notation, saying:
Posted (initial) 1-8-99 faxed Pls send me a letter of acknowledgment[18]
[18] Court Book 38
The letter is quite lengthy, some 13 pages, and gives the applicant’s postal address as PO Box 289 Regents Park NSW 2143, the same address as before. Interestingly enough, the letter refers in part to a claim against China:
I was not a criminal in China, but a political dissident in China. In another word, I am an opposition element against the people in power. Therefore, I have a well-founded fear of persecution upon return to China and there is real chance of persecution.[19]
[19] Court Book 40
This paragraph does not refer to the applicant’s claim before the Tribunal, or to what the applicant said he told the migration agent was his claim to fear persecution in China. He claimed to have been a member of an underground church.
The letter goes on to refer to the applicant’s claim against Indonesia[20] and again refers to:
The harm feared by members including myself in China[21]
[20] Court Book 42 -47, 49 and 50
[21] Court Book 46
Mr Smith has drawn the Court’s attention to the fact that the applicant’s letter refers to his being “aggrieved by the RRT decision”[22] and the question of relocation:
Therefore, in one word, I cannot reasonably be expected to avoid the prospect of persecution by relocating elsewhere within Indonesia.[23]
[22] Court Book 40
[23] Court Book 43
He submitted that this is evidence that the applicant actually had received the decision by the time that letter was written or, at least faxed to the Minister. It may have been, although the entire letter has all the indicia of a standard from submission relating to Chinese applicants with the words “Indonesia” and “Indonesian” substituted for “China” and “Chinese” where appropriate, and not always in every case.
In any event, Senator the Hon Kay Patterson replied to the applicant’s faxed letter on 13th August 1999 at that same Regents Park address. Senator Patterson wrote again to the applicant at that same address on 18th November 1999.
On balance, I am satisfied that the applicant did receive a copy of the decision on a date between 11th and 21st March 1999. If the applicant has physically received a copy of the Tribunal’s decision, there has been actual notification for the purposes of s 477 (SZKNX at [25]).
The transitional provisions of the Migration Litigation Reform Act 2005, Schedule 1 Item 42 require the applicant to have applied to this court within 28 days from 1st December 2005 to comply with s 477(1). Thus, he would have had to apply by 29th December 2005. Failing that, if the applicant had applied within 84 days of 1st December 2005, the Court would have had the power under s 477(2) to extend that 28 day period by up to 56 days. However, 84 days from 1st December 2005 expired on 23rd February 2006, and the applicant did not apply till 12th August 2008.
The application is out of time. The Court has no power to extend the time past 84 days.
Alternatively, the applicant, whilst in detention, applied for a copy of the Tribunal decision on 5th May 2008. The Court Book shows that a copy was forwarded to the applicant at the Immigration Detention Centre on 6th May 2008. Again, the applicant would have needed to file his application by 3rd June 2008 to comply with s 477(1). In order to obtain an order from this Court to extend the 28 day period for up to 56 days as provided by s 477(2), the applicant would have needed to file his application by 29th July 2008.
The application was not filed until 12th August 2008. It is out of time and the Court has no power to extend the time for filing the application.
The application is not competent and will be dismissed for that reason.
If the application were competent, I would not have exercised the Court’s discretion to grant relief for these reasons:
a)the unwarrantable and unexplained delay of over 9 years (Re Commonwealth of Australia; Ex parte Marks[24] per McHugh J at 495-496; S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs[25]), only a fraction of which is explained by the application to the Minister for intervention under s 417; and
b)the fact that the jurisdictional error involving the failure to comply with s 426(1) (b) had no effect on the applicant’s ability to advance evidence that he wanted to advance and present his case (Re Refugee Review Tribunal; ex parte Aala[26]; SZEXZ v Minister for Immigration and Multicultural and Indigenous Affairs[27]; and SZKGF v Minister for Immigration & Citizenship[28]) and he had suffered no practical injustice and no procedural unfairness.
[24] (2000) 177 ALR 491
[25] [2004] FCAFC 283
[26] (2000) 204 CLR 82
[27] [2006] FCA 449
[28] [2008] FCAFC 84
I have also considered the recent decision of the Full Court of the Federal Court in SZIZO v Minister for Immigration and Citizenship[29] where Moore, Marshall and Lander JJ said at [97]:
It should only be in exceptional circumstances that a court should refuse to issue the constitutional writs once the Court has determined that the Tribunal had failed to comply with its imperative statutory obligations to an applicant seeking the review of a decision of the delegate refusing a protection visa. If it were otherwise, and the Court were required to inquire into the extent to which the failure by the Tribunal to comply with its statutory obligations to accord an applicant a fair hearing prejudiced the applicant, the imperative obligation imposed on the Tribunal might well be blunted.
[29] [2008] FCAFC 122
In my view, the decision in SZIZO can be distinguished on the facts. The applicant in this case could in no way have been prejudiced by the failure of the Tribunal to advise him of the seven day time limit under s 426(2) to give the Tribunal written notice that he wanted the Tribunal to obtain oral evidence from any other person or persons. The last thing that the applicant wanted was for anyone else to give evidence at the Tribunal hearing, because it is the applicant’s own case that his entire story was a fabrication by his migration agent, in which the applicant was complicit. That very fact constitutes an exceptional circumstance.
Even if I were not satisfied that the application is incompetent, I would refuse the application on discretionary grounds for the above reasons.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A.L. Coutman
Date: 4 November 2008
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