SZMYH v Minister for Immigration

[2009] FMCA 151

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMYH v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 151

MIGRATION – RRT decision – jurisdiction declined because application was one day late – reasonable explanation for delay – delegate’s decision arguably invalid – no remedy available in Federal Magistrates Court – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), rr.13.03C(1)(e), 16.05(2)(a), 44.12, 44.12(1)(a)
Migration Act 1958 (Cth), s.476(2)(a)
Migration Legislation Amendment Act (No. 2) 2008 (Cth)

MZXOT v Minister for Immigration & Citizenship (2008) 233 CLR 601

Applicant: SZMYH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3022 of 2008

Judgment of: Smith FM

Hearing date: 19 February 2009

Delivered at: Sydney

Delivered on: 19 February 2009

REPRESENTATION

Counsel for the Applicant: No appearance by or on behalf of the applicant

Counsel for the First Respondent: Ms B Rayment

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed. 

2. The applicant must pay the first respondent’s costs in the sum of $2,500. 

3. The first respondent must within the next 2 days send to the applicant a copy of today’s order, and must inform the applicant of the provisions of Rule 16.05(2)(a) and that the Court would expect that any application to set aside the order or any part of it would be filed within 21 days. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3022 of 2008

SZMYH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This case illustrates a state of law which was identified in the High Court in MZXOT v Minister for Immigration & Citizenship (2008) 233 CLR 601. This is that only the High Court can give a remedy to a person who has, through no fault of his own, been prevented by an inflexible 28 day time limit from obtaining merits review of a questionable decision of a delegate refusing a protection visa. The Tribunal undoubtedly lacks jurisdiction to review the delegate’s decision in such a case. This Court must both uphold the Tribunal’s decision declining jurisdiction, and also refuse to entertain any application judicially to review the delegate’s decision. This is because its own jurisdiction is subject to a specific exclusion in relation to a ‘primary decision’ which might have been reviewable by the Refugee Review Tribunal (see s.476(2)(a)). Parliament did not address this anomaly when it recently passed the Migration Legislation Amendment Act (No. 2) 2008 (Cth). 

2. In the present case, the applicant’s application to the Tribunal was one day late, and he presented to the Tribunal an excellent explanation as to why that delay should be overlooked, if there were power in the Tribunal to do so.  He presented evidence that the person who undertook to lodge his application became ill, and included a medical certificate. 

3. However, the Tribunal handed down a decision on 15 October 2008, which held that it had no power to determine the application.  Its decision correctly identified the relevant legislative provisions, and correctly applied them to the evidence concerning the notification of the delegate’s decision.  The applicant does not now challenge its reasoning, and it is unnecessary for me to repeat it. 

4. In my opinion, it is clear that the applicant’s application to this Court to review the Tribunal’s decision does not raise an arguable case for any relief which this Court could give within its jurisdiction under the Migration Act 1958 (Cth). I consider it appropriate to dismiss his application under r.44.12(1)(a) for that reason.

5. The present application was lodged on 20 November 2008, and was listed at a first court date on 9 December 2008. The applicant attended, with the assistance of a Mandarin interpreter. The application was listed today for a hearing under r.44.12(1)(a), and the applicant was warned that it might be dismissed if he could not raise an arguable case for relief. He was also warned that I might dismiss it if he did not appear.

6. The applicant was subsequently referred for free legal advice, and it seems quite possible that he was there advised that his application in this Court was hopeless.  He may have become discouraged from proceeding further. 

7. He has not attended today, and has not explained his absence. In the circumstances, I decided to proceed with a hearing under r.44.12, in the absence of the applicant (see r.13.03C(1)(e)).

8. The absence of the applicant is regrettable.  If he had attended I would have drawn his attention to what appears to me to be an arguable case that the delegate’s decision was affected by jurisdictional error, and should be reconsidered.  I would have informed him that the only Court which could give him a remedy is the High Court of Australia, and I would have referred him to the Registry of that Court. 

9. The applicant claimed to have suffered persecution in China on two occasions at the hand of the Chinese police.  First, when he attempted to demonstrate with a group of workers who organised their own union to protest at being unfairly laid off.  More recently, when the police raided a Christian gathering held by his wife in his own home.  The applicant said he became angry, and started arguing with the police when protesting at the infringement of religious freedom.  

10. In my opinion, it is reasonably arguable that the delegate considered the applicant’s claims upon a false premise that he had claimed a fear of persecution because he was himself a Christian, and failed to appreciate that the applicant claimed to fear persecution because he is a person who demonstrates strong political opinions inimical to the Chinese government. The reasons for the delegate refusing the visa application, which turned, in part, upon the applicant’s lack of knowledge of Christianity, therefore proceeded on a serious mistake. It also appears reasonably arguable that the delegate failed to consider whether there was a real chance that, if the applicant returned to China, he might be persecuted if he again expressed political opinions favouring freedom of association, freedom of religion, or some other freedom which is not enjoyed in China. Either of these errors would vitiate the delegate’s decision as a valid exercise of power under the Migration Act.

11. In relation to costs, the Minister seeks the scale amount of costs for dismissal at a show‑cause hearing.  It is submitted that the applicant has failed to attend and to explain his absence.  It is speculative whether or not the applicant has in fact been discouraged in the manner which I thought possible above. 

12. If the applicant had attended, and showed an interest in pursuing his case with whatever assistance the Court could give him, I may well have declined to award costs to the Minister.  He was told in the Tribunal’s letter only that “you may have a limited right to seek judicial review in the Courts”, and it is understandable that he or his helpers might have thought that this was the appropriate Court.  In circumstances where the applicant appears to have a good case in another Court, it might appear appropriate that no order as to costs should be made in favour of the responsible administrators. 

13. However, he has not attended, even to dispute a costs order, and I do not consider that I should depart from the usual principle that costs should follow the event. If the applicant wishes me to review any of my orders, he can apply under r.16.05(2)(a).

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  6 March 2009