SZNZW v Minister for Immigration
[2010] FMCA 158
•26 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNZW v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 158 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution as victim of domestic violence – disbelieved by Tribunal – application for judicial review five months late – inadequate explanation for delay – no arguable ground of jurisdictional error – extension of time refused – application dismissed as incompetent. |
| Migration Act 1958 (Cth), ss.36(2), 477(1), 477(2) |
| Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 SZNZI v Minister for Immigration & Anor [2010] FMCA 57 |
| Applicant: | SZNZW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2680 of 2009 |
| Judgment of: | Smith FM |
| Hearing date: | 26 February 2010 |
| Delivered at: | Sydney |
| Delivered on: | 26 February 2010 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms A Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is refused.
The application is dismissed as incompetent.
The applicant must pay the costs of the first respondent in the amount of $5,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2680 of 2009
| SZNZW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant entered Australia on a transit visa in August 2008, using a passport containing a counterfeit New Zealand work visa. It also contained other stamps, indicating that the holder had travelled in and out of China in 2005, in 2006, and between January and July of 2008, as well as containing various visa stamps from other countries.
On the day after she arrived in Australia, the applicant applied for a protection visa assisted by Mr Harry Huang of Pricilla International Co Pty Ltd (“Pricilla International”), migration agents. The protection visa form was filled out with a detailed history, explaining why the applicant claimed protection against return to the People’s Republic of China.
In her application and subsequently, she agreed that she had travelled to Europe with her businessman husband in 2005, and again in 2006 to Canada. However, she denied having left China during 2008 before coming to Australia. Rather, she claimed that in that year events had happened giving rise to her fear of persecution. She traced these back to her marriage, which she said had been to the son of a family who had adopted her. She claimed not to have had any education, and to have been employed in housekeeping. She said: “I had a peaceful life for nearly 10 years even though I still had to undertake heavy housework and look after two children”.
However, she claimed that in October 2007 her marriage became difficult, as a result of her husband forming another relationship when living away from home. She claimed that he beat her for a whole night in October 2007, after he thought that there had been gossip about him, as a result of the applicant making contact with the local village director of the Women’s Federation, Ms HH. The applicant claimed to have continued living at home until March 2008, despite being assaulted and suffering domestic violence.
She claimed to have left home in March 2008 and stayed in another village at the home of Ms XH, a relative of Ms HH, until August 2008. During that period, the applicant claimed to have participated in helping that person draft many pamphlets at her home, and to distribute them as part of the activities of a women’s group. She said:
In the pamphlets, we protest against the Chinese government not to pay more attention to the basic human rights of our ordinary women in the countryside; and we protest against the PRC authorities not to have established a real women’s organisation with which our women could genuinely have our basic human rights respected and protected; and we protest against those corrupt police in the PSB not to protect our safety apart from asking the money; and we protest against domestic violence and crimes against women; and so on.
The applicant said that the distribution of the pamphlets was regarded as distributing “‘anti‑government’ propaganda materials”, and that two leaders were arrested in August 2008. The applicant then travelled to a location near Macau, and Ms HH arranged for her to depart China. The applicant claimed:
On the following day after I left China, I was informed that Ms XH had also been arrested by the PSB; and in the meantime, all of others, including me, who have actively been involved in the movement of distributing those “anti‑government” propaganda materials have been targeted by the PRC authorities.
Apart from her passport and a number of travel and family photographs, the applicant presented no corroborative evidence of her claims, either to the Department of Immigration or to the Tribunal. The applicant was questioned about her claims at an interview with a delegate on 28 October 2008.
The delegate refused the visa on 20 November 2008. The delegate did not accept her claim that she had been involved in a women’s association which made her a target of the PSB. The delegate gave particular emphasis to her departure for Australia on her own passport.
On appeal, the applicant continued to be represented by Pricilla International Co Pty Ltd, and she attended a lengthy hearing held on 4 February 2009 with her agent, Mr Huang. The hearing appears to have lasted more than three hours, and a recording of the hearing was given to the agent at the end of the hearing. The agent was also subsequently given a recording of the delegate’s interview. Although I advised the applicant at the first court date that she should consider presenting the transcripts, particularly of the Tribunal hearing, in support of the grounds of her present application, she has not filed any such evidence. The Tribunal’s statement of reasons therefore provides the only evidence of what happened at these interviews.
In the Tribunal’s very detailed 30‑page statement of reasons, it did not give a narration of the evidence. Rather, it described and examined the applicant’s evidence under various topics, in which it compared what the applicant said to it with the versions of events found in her protection visa application statement and in the interview with the delegate. In the course of its discussion, the Tribunal identified various concerns about the consistency of the events narrated by her, and explained how these were put to the applicant at the hearing and also in a subsequent written invitation for comment. The applicant was given an extension of time to respond to this, after receiving the recording of the delegate’s interview, and the agent presented a detailed response signed by the applicant.
The Tribunal made a decision on 23 April 2009, in which it affirmed the delegate’s decision. A copy was sent by facsimile to the applicant’s agent, Mr Huang on the same day. The applicant did not commence her present application for review until 4 November 2009. This was beyond the time limit provided under s.477(1) of the Migration Act 1958 (Cth), and I shall consider her explanations for her delay below, when considering whether it is necessary in the interests of justice to extend time pursuant to s.477(2).
In its statement of reasons, the Tribunal appeared, in my opinion, to have undertaken a very meticulous examination of all the evidence before it. This addressed all elements in the applicant’s claimed history of persecution, domestic violence, failure to get recourse from State authorities, and participation in political activities by a women’s group. The Tribunal also examined the applicant’s evidence about her movements in China, the arrangements she made to leave the People’s Republic of China in 2008, and her actions in Australia after arriving and when making her protection visa application. The Tribunal also examined the applicant’s evidence about her other overseas travel, and its attempts to reconcile that evidence with the appearance of her passport.
In the Tribunal’s “Findings and Reasons”, the Tribunal recorded a general conclusion that:
102.… However, due to the inconsistencies and contradictions in the applicant’s claims and statements, which are of such a magnitude that they indicate that the applicant’s claims as set out above are not truthful, the Tribunal did not find the applicant to be a credible witness. …
It is apparent from the Tribunal’s subsequent reasoning that it was unable to arrive at any conclusions accepting any part of the applicant’s claimed history pertinent to her refugee claims. This included her claims to have encountered domestic violence. In particular, the Tribunal identified clearly inconsistent histories given by the applicant about when she had first sought Ms HH’s assistance. It considered her explanations for the inconsistencies, but did not consider that they adequately explained the applicant’s inability to give a consistent, detailed history of events which the Tribunal reasonably thought could be expected to be clearly in her memory. For that reason, the Tribunal said that it was not satisfied that the applicant’s claims to have been a victim of domestic violence were true.
The Tribunal also found similar flaws in the applicant’s evidence about her participation in being a member of a women’s group and distributing propaganda pamphlets about women’s issues. It described those problems in detail, and concluded:
122.In light of the applicant’s inconsistent and contradictory statements as to whether she attended meetings with Ms XH and the other women; how many times she delivered pamphlets and whether this was done on the weekend or during the working week; whether she delivered the pamphlets on her own or with other women; and whether she encountered problems when delivering the pamphlets, and for the above reasons, the Tribunal finds that the applicant has not been truthful in her claims that she left her home with the help of Ms HH for the home of Ms XH in [village]; helped Ms XH develop, copy and distribute a pamphlet about women’s rights; had to leave [the village] as two women of the group were arrested and/or she had been photographed by a policeman while distributing pamphlets; eventually Ms XH, and the other women, were also arrested, and she had to leave PRC as she was targeted by the Chinese authorities.
The Tribunal examined evidence about the applicant’s travel within China and overseas. It noted that the applicant had made inconsistent statements about when she gave her passport to Ms HH to arrange travel to Australia. It also noted the exit and entry stamps indicating prima facie that the applicant was outside of the People’s Republic of China during 2008, when she claimed to have left her husband due to domestic violence in her home. The Tribunal concluded:
133.In light of the inconsistent and contradictory statements as to: when and where the applicant had her passport; when and where the applicant gave her passport to Ms HH: why she gave her passport to Ms HH; and when the applicant discussed with Ms HH about leaving China, and for the above reasons the Tribunal finds that the applicant has not been truthful in her claims as to: why she left PRC; when she decided to leave PRC; and the arrangements made for her to leave PRC.
The Tribunal’s ultimate conclusion was framed in terms of lack of satisfaction as to any of the elements providing the foundation of the applicant’s claims to fear persecution if she returned to China. It said there was “no plausible evidence before it that the applicant has suffered persecution in PRC because of her political opinion, her imputed political opinion, her membership of a particular social group, her religion or for any other Convention reason”.
In my opinion, the material before the Tribunal which is referred to by the Tribunal fully supported its adverse conclusion, and its inability to be satisfied that the applicant was a person meeting the definition of ‘refugee’ adopted by s.36(2) of the Migration Act 1958 (Cth).
The applicant’s application contains as its grounds the following contentions:
1.Frankly speaking, I almost lost my confidences with the justice and fairness of the Australian government owing to the performance of Ms. Christine Long, the Presiding Member of The Tribunal (“the Presiding Member”). As a matter of fact, I have never believed that the Presiding Member was, genuinely and honestly, willing to assess my claims, properly and fairly; and what she has done was, actually, doing a job or perfunctorily.
2.Carefully going through the Presiding Member’s decision, I have hardly found any good reasons to the contrary (Paragraph 196 of UNHCR Handbook). The Presiding Member rejected my claims even without giving any reasons.
3.Only issue that seemed to being inconsistent evidence that was about where and when I was wanted and feared harm in China. However, the Presiding Member has, obviously, or maybe intentionally, misunderstood my claims; or distorted my evidences.
4.The Presiding Member indeed, briefly and generally, discussed some points in relation to my application; but I had to doubt whether or not the President Member really intended to give me chance for providing my oral evidences or presenting my argument during the Tribunal’s hearing. In fact, the Presiding Member never ever tried to conduct me to give detailed evidences; and particularly, the Presiding Member never ever intended to make me clear what her actually concerns in relation to my review application.
5.I have to say that I strongly believe that the Presiding Member has already made her decision before the Tribunal’s hearing, and thus the Tribunal’s hearing was just for the purpose to go through the motions.
6.I also have to emphasize that I have, from the beginning to the end, tried my best to give detailed evidences in support of my claims; because I do indeed have a real chance of being persecuted on my return and my fear of persecution must be well‑founded.
The applicant has not filed any evidence supporting these grounds, including, as I have noted, evidence in support of the contention that the Tribunal revealed a closed mind during the hearing or otherwise before it published its decision.
The record of the Tribunal’s proceedings which is in the Court Book, and the Tribunal’s statement of reasons show, manifestly, that the Tribunal did not go about its duties in a ‘perfunctory’ manner. Nor in my opinion, do they provide any substance for any of the other unparticularised criticisms of the Tribunal.
I can find no substance, even remotely arguable, in support of the suggestion that the Tribunal’s decision might be void on principles of apprehended bias explained by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, nor any arguable basis upon which the Court could find that the Tribunal “misunderstood my claims; or distorted my evidences”.
Essentially, the real complaint made in the grounds of application, and by the applicant to me today, is that she does not accept the correctness of the outcome of the matter before the Tribunal, and would like to have an opportunity to have the Tribunal assess the merits of her case again. However, her submissions in this respect do not, in my opinion, raise any arguable ground of jurisdictional error. The Court has no power to send the case back to the Tribunal merely because it might have sympathy with the applicant, and it is not the function of the Court to consider whether she should have been believed or should have been given a refugee visa.
For the above reasons, if the present application were competent, then I would have dismissed it on the ground that it failed to establish any jurisdictional error.
However, the application was not competently brought within the Court’s jurisdiction, since it did not satisfy the requirement of s.477(1) that it should be made “to the court within 35 days of the date of the migration decision”.
The application, signed by the applicant and filed in Court, contained an application for extension of time under s.477(2) and gave as the grounds:
I did not lodge my application for judicial review mainly for the reasons as follows. Firstly, I do not have any money to seek any legal assists for my seeking the judicial review. Secondly, I do not have any confidence for my application to be assessed fairly and properly.
However, no evidence in support of those contentions was provided in the affidavit signed by the applicant, which was also filed.
At the first court date, the applicant was advised by me that she should consider filing an affidavit explaining her delay in coming to Court, which was in the region of more than five months. She did not take that opportunity. However, she accepted my invitation that she should give oral evidence today explaining the delay.
She said that she had been told about the Tribunal decision as soon as Mr Huang had received the Tribunal decision, and that she discussed the matter with him. She agreed that she was aware that she had a right to apply to the Court. Her explanation for not arranging for an appeal to be filed at that time, was that she did not have enough money to do so, and that also she felt rejected and very disappointed about the Tribunal’s decision. She said that she thought that she “did not have opportunity to appeal”. I think she meant that she thought that she would not succeed.
Her explanation for changing her mind five months later was that she had become “very sad”, and that church sisters told her that she should appeal, and gave her the money to pay a filing fee to commence the court appeal. Her evidence about exactly who assisted her to prepare the documents which were filed, and to file those documents, became obscure, deliberately so, in my opinion. For whatever reason, she denied receiving further assistance from Mr Huang at Pricilla International. When it was pointed out to her that the affidavit in support of her application is witnessed by “Priscilla Yu” as a Justice of the Peace, she gave most unsatisfactory evidence.
Under s.477(2), the Court has power to extend time, only if it decides that “it is necessary in the interests of the administration of justice to make the order”. I have recently in SZNZI v Minister for Immigration & Anor [2010] FMCA 57 summarised the considerations bearing on this:
11.The considerations which might bear on that discretion are unconfined. As with other powers to extend time and to waive defaults in relation to court procedures, two ‘critical’ considerations are: “(1) that an explanation, reasonable to the circumstances, is provided for the party’s absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order” (see Kirby J in Allesch v Maunz (2000) 203 CLR 172 at [48]). Other considerations may come into play, including in my opinion, the implications of the appeals structure and alternative judicial review avenues (see Yu v Minister for Immigration & Anor [2009] FMCA 1161 at [40]‑[41]). None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two ‘critical’ considerations (see Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506 and 510). When reaching its ultimate conclusion, the Court must weigh all of the relevant circumstances together by reference to the statutory criterion provided in s.477(2)(b), quoted above.
The applicant has given evidence explaining her delay in deciding to appeal. However, in my opinion her account does not provide an adequate explanation. Very soon after the Tribunal gave its decision, the applicant had the benefit of advice from migration agents with long experience in this area. In this respect, I note that a very large proportion of the migration cases in this Court are brought by former customers of Pricilla International, most of whom commence proceedings within the time provided under the Act. Merely being in doubt about her prospects of success, and then changing her decision on whether to appeal, does not, in my opinion, provide an adequate explanation for failing to apply to the Court within the statutory time. The identity of the person or persons who persuaded the applicant to change her mind would not alter that assessment.
However, even if I had been in doubt about the applicant’s explanation for her delay, I might have considered extending time if there appeared to me to be an argument of substance on the merits of the principal application. However, as explained above, I have formed a clear opinion that the grounds of appeal are without arguable merit. I have been unable for myself to identify any arguable jurisdictional error affecting the Tribunal’s decision, and in those circumstances I am unpersuaded that it is necessary in the interests of justice to extend time for this application.
I therefore shall dismiss the application as incompetent.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 17 March 2010
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