SZOCX v Minister for Immigration - [2010] FMCA 293

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOCX v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 293

MIGRATION – RRT decision – application for judicial review made beyond 35 days after deemed date of decision – whether extension of time necessary in interests of administration of justice – inadequate explanation for delay – no arguable grounds of review – extension of time refused – application dismissed as incompetent.

Migration Act 1958 (Cth), s.477(2)
Migration Legislation Amendment Act (No. 1) 2009 (Cth)

SZLUC v Minister for Immigration & Anor [2009] FMCA 378
SZNZIv Minister for Immigration & Anor [2010] FMCA 57

Applicant:

SZOCX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 171 of 2010

Judgment of:

Smith FM

Hearing date:

9 April 2010

Delivered at:

Sydney

Delivered on:

9 April 2010

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondents:

Ms N Johnson

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 $2,935.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 171 of 2010

SZOCX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant came to Australia on a visitor's visa in September 2006. On 28 September 2006 he applied for a protection visa. His application contains a statement that he was assisted by Mr Ah Chong Seow, who was not a registered migration agent. The application claimed that the applicant had been influenced by a work colleague, Mr Z, to join “The Underground Roman Catholic Association” which was organised by a priest. He joined the association in January 2003, and “became an active member of the association”. He said: “our leader was arrested last year at Xmas during a mass”, and “fearing for his life our acting leader and my mate, Mr Z, was successfully fled to Australia at the end of July 2006. I was told I was their next target, with the help of fellow members of our association I came to Australia”.
A delegate refused the application on 16 December 2006. The delegate found that the applicant’s claim that he had been targeted by the authorities before his departure lacked credibility.
On appeal, the applicant explained his fear of being arrested and imprisoned to the Tribunal, when he attended a hearing on 28 February 2007. According to the Tribunal, he said that his involvement with the church was that of driving Father J, listening to his preaching, and introducing new members to the church. The applicant claimed that although he had continued to work and live at the same address after the arrest of Father J in 2005, he first came to the attention of the authorities shortly before he came to Australia.
Under questioning by the Tribunal about the Catholic Church, the applicant said that the Church believed in Mother Mary, but he showed no knowledge of Jesus, the Apostles, or the Pope. He said he had not attended a church in Australia because he had not found one which conducted services in Chinese.
The Tribunal handed down a decision on 22 March 2007. It affirmed the previous decision of the delegate.
In its findings and reasons the Tribunal commented generally that the applicant was not a credible witness. It said:
He appeared to have memorised his statement and did not readily provide information concerning matters not contained in his written evidence. He was evasive and non responsive and on many occasions the Tribunal had to repeat its questions to elicit a response from the applicant. The Tribunal finds that the applicant was not truthful in his evidence to the Tribunal.
The Tribunal rejected the entire history presented to it by the applicant upon which his claims to fear persecution were based. Referring to his “less than basic knowledge about the Church", the Tribunal rejected his claims to have been an active member of a church, to have attended services, to have listened to the preachings of Father J, and that he was a committed Catholic. It did not accept that he had any involvement with the Church. It did not accept that he had introduced new members to it or that he had driven Father J. It did not accept that the Chinese authorities intended to arrest him, nor that they had visited his home in October 2006 after he had come to Australia. It found that the applicant was of no interest to the Chinese authorities, and that there was no real chance that he would face persecution if he returned to China “for the reason of his religion (real or implied), his association with religious activists, his promotion of the church or for any convention reason.”
The decision of the Tribunal was posted to the applicant at the address which at all times he had presented to the Department and to the Tribunal, as his residential address and his address for service. It is clear that correspondence to that address had previously come to his attention promptly. However, he did not file an application for judicial review of the Tribunal’s decision until 1 February 2010. He did not avail himself of the window of opportunity to apply for judicial review within the 35 day time limit introduced by the Migration Legislation Amendment Act (No. 1) 2009 (Cth), which expired on or before 21 April 2009 (See SZLUC v Minister for Immigration & Anor [2009] FMCA 378). His application was therefore at least nine months late, and an extension of time for that period is required under s.477(2) of the Migration Act before this Court can acquire jurisdiction in the matter.
His application to the Court asserted as the grounds for applying to extend time:
(1)When I got RRT, refused letter. I felt upset.
(2)I am not familiar with the Australian at that moment. So I missed the time to lodge in the application in FMC.
(3)I have not enough money to pay more money. So I had to delay.
Details and verification of these assertions were not contained in the affidavit filed in support of the application, and the applicant did not avail himself of an opportunity to file further affidavits pursuant to directions I gave at a First Court Date on 23 February 2010. In the intervening period he has had the opportunity to get legal advice from a barrister under the free legal scheme, after receiving the relevant documents.
Today, he gave a completely different explanation for his delay. This was that he had instructed his agent after receiving the Tribunal’s decision to lodge an appeal, and that when he tried to contact his agent about three months later, that is, at some point before the end of 2007, “they had disappeared”. He said that he assumed an appeal had been lodged, and did nothing for the ensuing two years to discover his immigration status. He said that he “waited until he was found by the Department of Immigration”, which occurred in January 2010. These assertions, as with those in the application, were unverified.
The Minister’s representative did not insist upon the applicant giving evidence under oath, and being cross-examined about it. However, I do not consider that I need to reach a conclusion about which explanation is true. I do not consider that either of the explanations is sufficient to meet what is usually regarded as a “critical consideration” when assessing whether an extension of time should be given (see SZNZIv Minister for Immigration & Anor [2010] FMCA 57 at [11]).
Were the applicant able to point to arguable grounds of jurisdictional error affecting the Tribunal’s decision, I might have been prepared to consider extending time, notwithstanding the inadequacy of the explanations proffered to the Court. However, I have not been able to identify any ground of jurisdictional error which is even remotely arguable.
The substantive grounds of the applicant’s application contained in his application were as follows:
1.RRT considered my case unfairly. They doubt my claim without substantive evidence.
2.Procedural fairness has been denied by RRT.
3.RRT did not consider my situation in China. I will be put in jail if I go back.
Although he was given the opportunity to file an amended application and written submissions explaining his arguments, the applicant has not availed himself of that opportunity.
His submissions today amounted to a reassertion of his refugee status, including by reference to claims which were novel. However, as I have explained to the applicant, it is not the task of the Court now, nor would it be the task of the Court were I to allow his application to proceed, to decide for itself whether he is a refugee and entitled to a protection visa.
Considering the grounds set out in the application, I can detect nothing unfair about the reasoning of the Tribunal, insofar as compliance with the requirements of law are concerned. It was the task of the Tribunal to decide whether the applicant’s claimed history should be accepted. The Tribunal has given logical and reasonable, even overwhelming, reasons, for being dissatisfied with the applicant’s general credibility and with his particular claims. The applicant’s own evidence to the Tribunal provided its reasons for finding against him.
In relation to procedural fairness, according to the Tribunal’s description of the hearing, all its concerns were discussed with the applicant in the course of the hearing he attended. He was given the opportunity to deal with the issues and matters upon which his case was decided. He was given all the opportunities required by the Migration Act to present his refugee claims to the Tribunal. I can detect no arguable ground of jurisdictional error, based on requirements of fairness arising under the Migration Act.
In relation to the third ground, it is clear to me that the Tribunal did consider the applicant’s evidence and his claims to fear that he would be gaoled and otherwise persecuted if he returned to China. Unfortunately, the Tribunal did not believe that evidence, but in doing so, it was performing its jurisdiction.
Therefore, taking into account the lack of merits of the substantive application for which an extension of time is sought, I am unpersuaded that it is necessary in the interests of justice, for me to extend time to allow the application to proceed.
After considering all that the applicant has said to me, I have concluded that the extension of time should be refused and the application dismissed as incompetent.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 29 April 2010