SZMVQ v Minister for Immigration - [2009] FMCA 137

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMVQ v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 137

MIGRATION – RRT decision – Chinese applicant claiming political persecution – Tribunal found involvement in political activities but no real chance of persecution – no jurisdictional error identified – eight years’ delay before application for judicial review – whether evidence of ‘actual notification’ – whether application incompetent – whether relief should be refused on discretionary grounds.

Migration Act 1958 (Cth), ss.91R(3), 417, 424, 424A, 424A(1), 424A(3), 424A(3)(b), 477

Minister for Immigration & Citizenship v SZIQB [2008] FCAFC 20
Minister for Immigration & Citizenship v SZKKC (2007) 159 FCR 565
Nguyen v Minister for Immigration & Citizenship [2007] FCAFC 38
SZICV v Minister for Immigration & Citizenship (2007) 158 FCR 260
SZKNX v Minister for Immigration & Citizenship [2008] FCAFC 176
SZMYT v Minister for Immigration & Anor [2008] FMCA 1718

Applicant:

SZMVQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2667 of 2008

Judgment of:

Smith FM

Hearing date:

18 February 2009

Delivered at:

Sydney

Delivered on:

18 February 2009

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms S Sirtes

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2667 of 2008

SZMVQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia illegally in 1999, on a ship from Hong Kong. On 29 July 1999, he lodged an application for a protection visa assisted by a migration agent, Pricilla International Co. Pty Ltd. The application included a typed statement, in which the applicant claimed to fear persecution if he returned to the People’s Republic of China.
The applicant said that he came from a family which had been persecuted during the Cultural Revolution, and that both his grandfather and father had died as a result of their hardships. He said:
When the 89’s pro‑democracy movement was broke out, I was very excited, because I finally saw the hope of the country, and I finally saw the hope of my own and my family. I actively organised the demonstrations, and other public protests. Especially, I took some young workers to contact with those students in the universities, and organised large protests against the PRC authorities.
As a result of these activities, he was questioned at his work unit, and then arrested by the Public Security Bureau and detained for three months. He was also dismissed from his work, and then had difficulties running a small business.
He claimed that in the middle of 1998 “I began to join in an underground organisation [referring to a Party] aiming for the basic human rights”. He said he claimed to have been an organiser of meetings and publications, and gave speeches. He said: “in the early of 1999, the organisation had five branches including 200 members. … Our activities had produced a strong influence in our area”. However, the organisation “was treated as an illegal political organisation”, and the applicant was “questioned many times. I knew clearly that I would be seriously punished if I were arrested by CPC government again. For my own safety, I had to escape to Hong Kong”. He claimed that his family members had been questioned many times after his departure.
A delegate refused the application on 14 September 1999, taking the view that the applicant “was not perceived to be a high profile leader. I am not satisfied that the authorities would have arrested or otherwise persecuted the applicant if he remained in the PRC”.
The applicant appealed to the Refugee Review Tribunal on 13 October 1999, assisted by his agent. A submission was lodged which reproduced his earlier visa statement.
The applicant attended a hearing on 10 March 2000 without his agent. It is difficult for the Court now to know fully how that hearing proceeded, since the Tribunal’s statement of reasons did not recite all that happened, but only referred to some parts of the hearing in the course of the Tribunal’s reasoning. It is therefore difficult for me to reach conclusions about whether all the points subsequently made by the Tribunal in its statement of reasons were fully put to the applicant in the course of the hearing, due to the absence of a transcript. Neither party has sought to tender one, and I do not know whether a sound recording still exists.
From the Tribunal’s references to the hearing, it appears that the applicant qualified some of the claims made in his visa application, and embellished others. He claimed that he had had a close association during the 1989 student movement with high‑profile student leaders in Beijing, notwithstanding that he had worked in a different city. His description of his political activities in 1999 suggested a lesser involvement than was in his visa statement, and caused the Tribunal to doubt whether his activities would have been of interest to police at that time.
The Tribunal handed down a decision on 18 April 2000, by posting a copy to the applicant and also to his agent. The copy posted to the applicant was returned to the Tribunal, but, as I shall explain, there is evidence from a s.417 request that the copy sent to the agent was received, considered by the agent, and probably discussed with the applicant at that time.
In its statement of reasons, the Tribunal accepted that the applicant’s family had suffered during the Cultural Revolution, but it did not think that this would have caused difficulties for the applicant in more recent years.
The Tribunal said that it was willing to accept that the applicant might have supported the 1989 pro‑democracy protest, “and even that he might have helped organise some minor demonstrations”, but it did not accept that his activities occurred outside his home city, and it thought that he had fabricated his claim to have been a leader or organiser of high profile demonstrations. In the course of its reasoning, the Tribunal took into account the fact that the applicant did not claim to have “moved in dissident circles while in Australia”. It was entitled to consider all evidence concerning his conduct in Australia, and no issues in relation to s.91R(3) arise, because that provision had not been enacted.
The Tribunal appears to have accepted that the applicant suffered a gaol sentence and the loss of his employment as a result of his activities in 1989, but the Tribunal formed a view that “the applicant was freed without, in my opinion, any further official interest in his activities or experience of serious penalties or disadvantages for a Convention reason”. The Tribunal addressed the applicant’s claims to have been harassed in business after his release, but noted that he had subsequently held “a stable job for 10 years”.
The Tribunal then addressed his claim to have been involved in an illegal political group in 1999. It found no information about the named party, and gave the opinion: “I do not consider that a group of 200 people would be seen as a dissident movement of particular concern to the authorities”. This opinion appears to have been based upon its general impression of the extent of political repression in China at a time when some liberalism had appeared. Based also upon its opinion that the applicant had exaggerated his recent political activities, the Tribunal was not satisfied with his claims to have been of interest to the police, nor that there was a threat that he would be arrested and gaoled for membership of a political group.
The Tribunal said that it was not satisfied that he left China “in a flight from persecution. I consider that he left China in order to better his circumstances and not because he has a well‑founded fear of persecution”.
The Tribunal considered that the applicant could return home without fear of persecution for a Convention reason, although he might face some punishment for leaving China without a passport. It accepted country information which suggested that such punishment “is meted out on the basis of laws of general application governing cases of illegal departure, rather than being a persecutory measure in terms of Convention”.
The Tribunal was, therefore, not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugee’s Convention.
The applicant’s present application, which seeks judicial review of the Tribunal’s decision, was filed on 15 October 2008. The Minister submits that it is incompetent, because this was outside the strict time limit provided in s.477 of the Migration Act. By reason of the transitional provisions in the 2005 amendments which inserted the time limit, the applicant should have made his application, including any application for extension of time, before 24 February 2006, but only if the Court can be satisfied that he received ‘actual notification’ prior to 1 December 2005 (see my judgments which were upheld in Nguyen v Minister for Immigration & Citizenship [2007] FCAFC 38 and SZICV v Minister for Immigration & Citizenship (2007) 158 FCR 260).
The current state of authorities binding on this Court is that the words ‘actual notification’ in s.477 do not refer to the forms of actual and deemed notification provided under other sections of the Act, but have only their ordinary English meaning. This seems to be the effect of SZKNX v Minister for Immigration & Citizenship [2008] FCAFC 176 at [25], where their Honours said: “… if an applicant has physically received a copy of the Tribunal’s decision and reasons, … there has been actual notification of the decision for the purposes of s 477”. As Driver FM recently accepted in SZMYT v Minister for Immigration & Anor [2008] FMCA 1718, this reverses the opinions which were widely held as to the effect of Minister for Immigration & Citizenship v SZKKC (2007) 159 FCR 565.
The applicant asserts in his application that he first received the Tribunal’s decision on 25 September 2008. There is confirmation in the Tribunal’s file that it sent him a copy on 24 September 2008. If this was the first occasion on which he received ‘actual notification’ then his application is within time. A purported affidavit by the applicant asserts that “I haven’t received the RRT decision until I made a request for copy of the RRT decision on 16 September 2008”. However, this was sworn without being certified by a translator, and the applicant declined to go into the witness box to give evidence.
Evidence presented by the Minister shows that a letter dated 14 May 2000 was received by the Minister for Immigration on 9 June 2000, bearing many signatures which appear to be those of the applicant’s. The letter invited the Minister to exercise powers under s.417 of the Migration Act, and commenced with the following two paragraphs:
My application for a Protection Visa (Refugee Status) in Australia was finally refused by the Refugee Review Tribunal (RRT).
Unfortunately, my current situation, especially my financial hardship, has made it impossible for me to seek judicial review at the Federal Court.
The letter then recited verbatim most of the applicant’s statement which had been included in his visa application, with an additional plea to the Minister to allow him to stay in Australia “on the humanitarian ground”.
A letter dated 17 August 2000 stated that the Minister had decided not to consider exercising his power. This was posted to the applicant at a post office box in Haymarket, which was given as the applicant’s address in his letter to the Minister.
The applicant has chosen not to give any evidence under oath or otherwise to the Court to explain how his letter came to be sent to the Minister. He has not denied that it has his signatures on it. I would infer from the correspondence, that his signed letter was sent with his knowledge and on his instructions, probably by his migration agent. If so, it seems likely that the applicant had the opportunity in the course of its preparation to read and understand the Tribunal’s reasons, and certainly that he was aware of the Tribunal’s adverse decision in May 2000.
However, his letter does not in its terms contain an admission that the applicant personally ever received a copy of the Tribunal’s decision and reasons, and the Tribunal’s records indicate that the copy posted to the applicant’s own address was returned to it marked ‘return to sender’. If the applicant were legally represented, the absence of sworn evidence from the applicant to deny ‘actual notification’ in the course of preparing his s.417 request might readily lead me to find that the applicant had actual receipt of the Tribunal’s decision and reasons via the copy sent to his migration agent. However, he is not represented, and he complains that he has not been assisted by the advice given by the free legal advisor.
In all the circumstances, I am not prepared to find on the balance of probabilities that the applicant actually received a copy of the Tribunal’s decision prior to the date in 2008 when he claims to have received it.
I must therefore consider whether the Tribunal’s decision is affected by jurisdictional error. If it is, I must also consider a further issue raised by the Minister: whether relief should be refused in the Court’s discretion, taking into account the applicant’s delay in commencing his present proceeding after becoming aware of the Tribunal’s decision.
The applicant has been unable to present to the Court any argument raising any jurisdictional error. He relies only on his original application, which has as its grounds, numbering added:
(1)The Tribunal failed to identify the social group to which the Applicant belonged;
(2)The Tribunal failed to give the Applicant particulars in writing of information the Tribunal considered would be part of its reasons;
(3)Breach of s424 of the Act [this may be an intended reference to s.424A and part of Ground 2].
(4)The Tribunal failed to attain, or failed to exercise, jurisdiction by reason that the RRT erred in law in constructively failing to exercise jurisdiction.
In relation to the first ground, I am unable to identify any error by the Tribunal involving a failure to identify a refugee claim made by the applicant which could be so characterised for the purposes of the Convention definition of ‘refugee’. On the path of reasoning followed by the Tribunal, it did not engage in a process of characterisation of the reasons for the persecution claimed by the applicant, and it was not obliged to do this. What it was obliged to do was to make findings which addressed all the elements in the applicant’s claims, including those which might appear to raise a claim to fear persecution by reason of membership of a particular social group.
However, in my opinion the Tribunal did address all the elements in the applicant’s claims, including those which might have been so characterised. In particular, it considered the significance of the applicant coming from a family which had suffered in the Cultural Revolution, and of his having associations with groups involved in political activities. It gave reasons for finding that such of the claimed history as it accepted did not give rise to a well‑founded fear of persecution if the applicant returned to China. I am not persuaded that Ground 1 of the application is based upon any substance which can be found in the Tribunal’s decision.
Ground 2 appears to invoke s.424A(1), which did apply to the Tribunal’s proceedings in 2000. However, no particulars are given of information taken into account by the Tribunal which it failed to put to the applicant, and which comes within s.424A(1) read with s.424A(3). I am not satisfied that any breach occurred.
Particularly in the absence of a transcript or better evidence as to what was discussed by the applicant at the hearing, and what evidence he gave the Tribunal in the course of the hearing, it is impossible for me to arrive at any conclusions that the Tribunal relied on any information specific to the applicant which was not given by him for the purposes of s.424A(3)(b). As I have indicated, the whole of the applicant’s original visa statement was repeated to the Tribunal in a written submission, and the Tribunal appears to have thoroughly explored with the applicant his claimed background and history and also to have put to him its concerns.
In relation to Ground 3, if the reference to s.424 is not a mistaken reference to s.424A, I am unable to identify any such breach in the absence of any particulars or argument on behalf of the applicant.
Ground 4 is framed with such breadth that I am unable to give it meaningful application to the Tribunal’s decision, in the absence of particulars or a specific argument.
As I have indicated, I have endeavoured for myself to consider the Tribunal’s processes and reasoning to see whether there was an arguable case of jurisdictional error affecting the Tribunal’s decision. It is possible that minds might differ as to the opinions taken by the Tribunal in 2000 as to the chances of the applicant being persecuted in the future, based on the history which the Tribunal did accept, and putting aside the parts of the history which were rejected. A different opinion might appear with hindsight based on authoritarian political policies which re‑emerged in China in more recent years. However, I am not satisfied that the Tribunal’s conclusions were not fairly open to it on the material before it when it made its decision in 2000. I am not satisfied that they are flawed by any jurisdictional error.
For the above reasons I would therefore dismiss the application on its merits.
I also note that, had I found jurisdictional error, I would have refused the application on grounds of discretion. I have found that the applicant has, at least, been aware of the Tribunal’s decision since 2000, and probably also of his unsuccessful application to the Minister for discretionary intervention. Despite my invitations today that he give evidence to explain the long delay until 2008, he declined that opportunity. I am left with no evidence to explain his failure to further investigate his immigration rights, and to come to Court in a timely manner, if he felt that they had been unlawfully denied. On the evidence before me, the inference appears to me that, after learning of his lack of success in 2000, the applicant decided not to pursue rights of judicial review, but preferred to let his immigration status drift while he remained illegally in Australia.
Taking into account the very long delay and the absence of a satisfactory explanation, I consider that it would be appropriate to exercise the discretion to refuse relief in this case based on principles which have been applied in many cases, including Minister for Immigration & Citizenship v SZIQB [2008] FCAFC 20.

I certify that the preceding thirty‑six (36) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 5 March 2009