SZODG v Minister for Immigration
[2010] FMCA 176
•16 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZODG v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 176 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – failure of the Applicant to attend the Tribunal hearing – Tribunal affirmed delegate decision not to grant a protection (Class XA) visa. PRACTICE & PROCEDURE – Application at first court date hearing for dismissal of the application on the basis that application is out of time – review of Tribunal decision – no reviewable error – application dismissed. The Applicant in these proceedings is not to be identified pursuant to s.91X Migration Act 1958 (Cth) and has been given the pseudonym “SZODG”. |
| Migration Act 1958 (Cth), ss.91X, 198, 425, 426, 426A, 476, 477(2) |
| Lindon v Commonwealth (No.2) [1996] HCA 14 SZNOR v Minister for Immigration and Citizenship & Anor [2009] FMCA 639 SZNZI v Minister for Immigration & Citizenship & Anor [2010] FMCA 57 |
| Applicant: | SZODG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 203 of 2010 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 2 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2010 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Mandarin interpreter. |
| Solicitor for the Respondents: | Ms C. Mills (Clayton Utz) |
ORDERS
The application filed on 4 February 2010 is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 203 of 2010
| SZODG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The Applicant, who claims to be a citizen of the Peoples Republic of China, arrived in Australia on 15 January 2009 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 22 February 2009. The claim made by the Applicant in his original application was that there is no freedom in China and he has not been allowed to practise his own religion. The Applicant claims in his Protection visa application that he is a 49 year old male and arrived in Australia on 15 January 2009.
The Applicant filed an application in this Court on the 4 February 2010 seeking an order for the respondents to show cause why the remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”), in respect of the migration decision made by the Refugee Review Tribunal on 22 January 2010. That application contains three grounds of review which state:
1. RRT considered my case unfairly. They doubt my claims without substantial evidence.
2. Procedural fairness has been denied by RRT.
3. RRT did not consider my situation in China, I will be persecuted in China.
The application seeks an extension of time and the grounds for the application of extension of time are:
1. I have no enough money to pay more money. I had to delay
2. I am not familiar with the Australian law so I missed the time to lodge.
With the application, an affidavit was filed by the Applicant containing a copy of the Tribunal decision. The only other material before the Court is an affidavit of Carla Mills, sworn 23 February 2010 and filed on that date. Annexed to Ms Mills’ affidavit is the following material:
a)invitation to the Applicant to appear before the Tribunal dated 25 June 2009;
b)the Tribunal’s mail record forwarding invitation;
c)letter responding to request for postponement;
d)RRT postal record for postponement letter;
e)case note 3495176;
f)case note 3495486;
g)Tribunal letter, notification of decision dated 20 August 2009; and
h)copy of Tribunal decision.
The only material that is placed before the Court in respect of the Applicant’s claims for a Protection (Class XA) visa is contained in the Tribunal’s decision of Rodney Inder dated 20 August 2009, RRT case number 0904243. At paragraph [28] the Applicant’s claims are summarised as follows
The Applicant claims there is no freedom in China and he was not allowed to have his own religion. However, the Applicant does not elaborate on these extremely broad, sweeping and totally unsupported statements in any way whatsoever, despite being given plenty of opportunities of doing so. For example, he does not claim that anything has happened to him, his family or even friends, in the past because he was denied freedom or could not have his own religion, or even attempt to explain what he meant by this extremely vague and unspecific language. Nor does he claim that he was ever detained, arrested, tortured or even harassed at any stage for any reason whatsoever, including because of his political opinion or religion. Nor does he claim that he has ever been involved in political activities or demonstrations of any sort, either in China or in Australia, or otherwise elaborate on how freedom has been denied to him. For example, he does not claim that his activities were in any way at all restricted. Nor does he claim that he participated in any demonstrations or other activities against the Chinese government or the CCP. And while making the sweeping claim that he was not allowed to have his own religion, the Applicant does not say what religion he believed in and how he was denied being able to express it. On the contrary, in response to question 13 of Parts C of his protection visa application (Form 866C) the Applicant’s answer to the question asking him about his religion by stating N.A (not applicable). Nor does the Applicant provide any evidence whatsoever to support his unspecified claims.
Tribunal’s findings and reasons
The Tribunal sets out in its decision, under the heading ‘Claims and Evidence’ the steps that it took in an attempt to have the Applicant attend the Tribunal hearing.
The Tribunal states
[at 20]
On 25 June 2009 the Tribunal wrote to the Applicant advising that it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the Applicant to give oral evidence and present arguments at a hearing on 12 August 2009. The Applicant was advised in the letter sent to his designated mailing address that, if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.
21. On the morning of the scheduled hearing, a friend of the Applicant contacted the Tribunal and advised that the Applicant was sick and was unable to attend the hearing. The Applicant’s friend was advised by the Tribunal that it would require a medical certificate by close of business on 12 August 2009, stating that the Applicant could not attend the hearing. The Applicant’s friend agreed to tell the Applicant about this. The Tribunal then rang the Applicant and requested a medical certificate from him and advised him that the hearing had been rescheduled for 20 August 2009, advising him that the hearing had been scheduled for 0930 on 20 August 2009. The Tribunal then rang the Applicant twice on 18 August 2009. In the telephone discussions, the Applicant advised that he had lost the medical certificate and had not received the hearing invitation to the postponed hearing. He also indicated he was not sure whether he should come to the hearing. The Tribunal put to the Applicant that the hearing had been arranged for him for 0930 on 20 August 2009 and this was an opportunity for him to present his arguments and evidence in support of his case. The Tribunal further put to the Applicant that, if he chose not to appear at the hearing, the Tribunal would make its decision on the evidence before it. No reply was received from the Applicant in response to its letter of 12 August 2009 and the Tribunal’s letter was not returned to the Tribunal.
22. The Applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the Applicant to appear before it.
The Tribunal found that the Applicant’s claim to have been denied freedom and the right to practise his own religion totally lacked the sort of detail or credibility that could reasonably be expected of someone who had a well founded fear of serious harm amounting to persecution for a Convention reason. The Applicant failed to place before the delegate of the Minister or the Tribunal any supporting material in the form of letters or statements that supported his claims, nor was there evidence presented to the Tribunal that would suggest that the Applicant had been involved in any anti-Chinese government or Chinese Communist Party activities during his seven month stay in Australia. The Tribunal was unable to satisfy itself that the Applicant has a well founded fear of serious harm amounting to persecution for a Convention related reason. The Tribunal formed the view that if the Applicant was to return to China now, or in the foreseeable future, that he would not suffer any harm amounting to persecution for Convention related reason. Consequently, the Tribunal made the finding that the Applicant was not a refugee.
Respondent’s submissions
Ms Mills, in oral submissions, advised the Court that the Applicant is currently in detention at the Villawood detention centre. He was detained by officers of the Department of Immigration on 22 January 2010. Ms Mills indicated that she had been instructed to inform the Court that the Applicant is on a removal pathway pursuant to s.198 of the Act.
The Applicant has been served via express post on the 23 February 2010 with a copy of an affidavit filed in these proceedings. Within that letter is advice to the Applicant that it was the intention of the representatives of the Minister to seek to have the matter dismissed at the directions hearing listed before the Court on 2 March 2010. That application is made on the basis that the application for review is filed substantially out of time. It was submitted that the delay was extensive and estimated at some five months out of time.
The Court was also informed that Ms Mills had requested that the interpreter translate the contents of the affidavit and the attached documents to the Applicant before the hearing commenced.
The grounds raised by the Applicant in the review application allege unfairness, denial of procedural fairness and a lack of consideration of his claims by the Tribunal. It is submitted that these grounds are without merit, particularly in the circumstances of this matter. Those circumstances are that the Tribunal issued a letter to the Applicant on the 25 June 2009 inviting him to a hearing which was to take place on 12 August 2009. This letter was sent pursuant to s.425 of the Act. The Tribunal then rescheduled the hearing at the Applicant’s request and issued another letter on 12 August 2009, inviting the Applicant to a hearing on 20 August 2009. This letter was sent pursuant to s.425 of the Act. An RRT officer then telephoned the Applicant on 18 August 2009, details of which are recorded in case note 3495176. This Case Note outlines the telephone conversation that took place with the Applicant on that date. It notes that the Applicant was requested to attend the hearing and he was advised that if he did not attend, the Tribunal would make a decision based on the evidence before it. The Applicant did not attend the rescheduled hearing. No response was received to the hearing invitation sent to the Applicant by the Tribunal. Therefore, the Tribunal proceeded to hear the matter as it is entitled to, pursuant to s.426A of the Act. The Applicant did not attend the hearing despite being issued with a s.425 letter and receiving telephone calls from the RRT officer. The Tribunal issued the s.425 letter as a means of offering the Applicant an opportunity to elaborate on his claims. When the Applicant failed to accept the opportunity, his application was consequently rejected.
Applicant’s submissions
The Applicant was invited to make oral submissions in response to the submissions made by Ms Mills. The Applicant indicated that when he arrived in Australia, he was ignorant of the procedures required by the provisions of the Act and that he was introduced to a migration agent by a person that he knew from the town that he had lived in, in China. He indicated that he was introduced to a person named Arxinlu who indicated to him that she would do everything necessary in respect of an application for a visa. He stated that he paid her a large sum of money but this was not quantified.
When the Applicant received an invitation letter from the RRT, inviting him to a hearing, he contacted the agent and she advised him not to attend. When the second invitation letter was received, the Applicant claims that he again telephoned the agent seeking her advice and was advised not to attend. The Applicant called the agent again and indicated to her that maybe it was important and he should he attend. The agent responded “No, you don’t go”. On the evening of that conversation between the Applicant and the agent, he called again but she was not contactable because her phone had been switched off.
The Applicant claims that he missed the opportunity to attend the Tribunal and he seeks before the Federal Magistrates Court an opportunity to have the matter returned to the Tribunal for review. He claims that he paid the agent money but was denied the opportunity to appear before the Tribunal. The Applicant advised the Court that since entering the detention centre, he had retained the services of another migration agent who filed the application presently before this Court. When I asked the Applicant whether the first agent had an office, he indicated that she did not. When asked where the Applicant located the agent, he indicated that his associate from his home town in China introduced her and an arrangement was made to meet at Campsie station. He paid her a substantial amount of money and she asked the Applicant his name and details.
When I asked the Applicant who was the owner of the post office box in Auburn, which appeared on the original visa application and application to the Tribunal, the Applicant indicated that the post office box belonged to the person described as the “hometown fellow”, who he knew originally from China. When asked whether the correspondence from the Tribunal that was forwarded to that post office box was given to the Applicant, he indicated that it was. When asked if anyone had interpreted the contents of that correspondence, the Applicant indicated that the “hometown fellow” gave him the letter and indicated roughly the contents. However, as the content of the correspondence was complicated and the “hometown fellow” was unable to fully explain the contents, he contacted the agent. The agent indicated to the Applicant that she needed to read the letter, so the “hometown fellow” drove the Applicant to a meeting with the agent at an unidentified street location.
After reading the letter the agent stated “Useless. Don’t worry”. When the Applicant was asked about receiving further letters from the Tribunal, which were sent to his “hometown fellow’s” post office box in Auburn, he indicated he did not know how many letters there were and if his friend had passed them all on. During a brief adjournment, the correspondence attached to the affidavit of Ms Mills was read to the Applicant by the court interpreter. On resumption, the Applicant was asked whether he had seen these documents before and he indicated that he was aware of those letters. When asked what the Applicant did when he received each letter, he indicated that he called his agent. That was the same lady as the original agent. The Applicant indicated that when he showed the letter to this woman, she indicated “okay, just asked you to go there, but useless – don’t go”. When the Applicant enquired with the agent what he should tell the Tribunal, she indicated “just tell them you can’t go”. When asked if anyone explained to the Applicant the consequences of his decision, he indicated that she did not. When the Applicant entered detention, he referred to a new agent, Ms Qian who had two offices, one which was located in Auburn. That agent visited the Applicant in detention and prepared the application which is currently before the Court. This was done within a couple of day of the Applicant entering detention.
When asked whether the new agent explained to the Applicant the problem he was going to face by filing a late application, he indicated that she did not. She completed the form, partly typed and partly handwritten. The Applicant indicated that he had given the agent instructions and that she had completed all of the writing.
Consideration
The decision record is dated 20 August 2009. The Applicant had 35 days in which to file his application in this Court, seeking review of the Tribunal decision. That 35 day period would have concluded on Thursday 24 September 2009. The application was not filed until 4 February 2010. This is approximately four months and two weeks out of time. What the Applicant has to do is persuade the Court that it should make an order extending the 35 day period if the Court finds appropriate. Section 477(2) sets out two requirements
a)An application for that order has been made in writing to the Federal Magistrates Court specifying why the Applicant considers that it is necessary in the interest of the administration of justice to make the order; and
b)The Federal Magistrates Court is satisfied that it is necessary in the interest of the administration of justice, to make the order
The Applicant in his application, sought an extension of time which is supported by two statements
1. I have not enough money to pay more money. I had to delay
2. I am not familiar with Australian law. So I missed the time to lodge.
There is no supporting affidavit setting out the circumstances or arguments in support of an extension of time.
In SZNOR v Minister for Immigration and Citizenship & Anor [2009] FMCA 639, His Honour Scarlett FM sets out the issues that the Court should take into consideration in exercising its discretion in respect of an extension of time at [14] – [15] His Honour states
14. There are a number of factors that in my view need to be considered. Not only should the Court look at the explanation for the delay, the Court must also look at the extent of the delay. The law as far as s.477 is concerned does not set out any additional time limit unlike the earlier section. It leaves the matter entirely to the discretion of the Court. It would clearly be appropriate for the Court to consider the extent of the delay in filing the application. In my view an Applicant who had delayed for a period of years would have little hope of persuading a Court that it was in the interests of the administration of justice to make such an order. The general principles relating to delay in my view still apply in this case.
15. The interests of the administration of justice involve a consideration of both sides of the litigation. The Court should look at the effect on the Applicant if the application is not granted and the Court should look at the effect on the respondent or the detriment to be suffered by the respondent if the application is granted. As has been submitted for the first respondent the Court should look at the time, money and resources that need to be expended on defending an application which is out of time.
In SZNZI v Minister for Immigration & Citizenship & Anor [2010] FMCA 57 His Honour Smith FM considered the Court’s power to extend time and whether that extension was in the interest of the administration of justice to make the order. He summarised the consideration at [11] where he stated:
[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 [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 weight all of the relevant circumstances together by reference to the statutory criterion provided in s 477(2)(b), quoted above.
I note the submissions made by the Applicant, from the bar table, where he explains the circumstances relating to delay in filing the proceedings in this Court. I also note that the application was allegedly prepared by a registered migration agent who should be competent in this field. However, there is no reference to the issue that the Applicant claims, nor was there any further affidavit material filed in support of the extension. Clearly, the agent who completed the form was aware that the application was more than four months out of time.
If the extension of time is to be granted, it is necessary to consider the substantial application. This can be broken into two elements.
Firstly, the Tribunal in making its decision under the provisions of s.426 of the Act clearly provided the Applicant with an opportunity to appear before it. It extended two written invitations followed by phone calls attempting to ensure the Applicant’s attendance at those hearings. The only information that the Tribunal did not possess was that the Applicant was being advised by his agent not to attend. Consequently, this moves the consideration to the second point.
Secondly, the substantial problem with the Applicant’s original claim for a Protection Visa was based on two very general statements that he was denied his freedom and was unable to practice his religion. These claims were not further quantified. There is no further evidence provided by the Applicant as to what form this denial took, or to what religion he wished to pursue. Nor is there evidence that he suffered, or was subjected to any form of persecution because of his desire for this freedom or religious adherence. The Applicant has not claimed that he has been harassed, arrested or suffered any form of physical violence in relation to his claim.
The Applicant has been provided with ample opportunity to supply information in respect of any persecution he has suffered in respect of these two claims, but he has not availed himself of this opportunity. He has had the assistance of two different agents and it is acknowledged that at least one does not appear to be legitimate and was merely exploiting the Applicant’s vulnerable position. However, the second agent who operates out of offices and has access to the Villawood Detention Centre appears to have some knowledge of the migration jurisdiction but this agent has made no reference to any aspect of the Applicant’s original claim or him being denied the opportunity to present any supporting information.
I note the reference in SZNOR v Minister (supra) to the decision Lindon v Commonwealth (No.2) [1996] HCA 14 per Kirby J who stated:
Even a weak case deserves its time in Court.
In all the circumstances, I am not satisfied that the Applicant has a genuine claim for protection. The visa application has expressed in very broad terms and does not identify any form of persecution suffered by the Applicant. The substantiation of the claim has not been forthcoming. The grant of an extension will only result in the Court dealing with a spurious application with little to no chance of success. The Applicant has failed to convince the Court that the further ventilation of his case is going to result in a substantial elaboration of his claim.
The Court also notes that at the commencement of the hearing, the Applicant was being particularly belligerent and uncooperative with the Court appointed Mandarin – English interpreter. He initially indicated to the interpreter that he had great difficulty understanding her. However, it emerged during the directions hearing that he was fluent in Mandarin and had absolutely no difficulty understanding her or conveying responses to the Court.
I am not satisfied that an extension of time for the filing of these proceedings should be granted and the application should be dismissed with costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 16 March 2010
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