SZOGD v Minister for Immigration - [2010] FMCA 295

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOGD v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 295

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – judicial review application filed out of time – refusal of an extension of time.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.48B, 91R, 476A, 477

Applicant:

SZOGD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 584 of 2010

Judgment of:

Driver FM

Hearing date:

28 April 2010

Delivered at:

Sydney

Delivered on:

28 April 2010

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms N Johnson
Sparke Helmore

INTERLOCUTORY ORDERS

The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
The application is dismissed as incompetent.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 584 of 2010

SZOGD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 24 April 2008. The decision does not indicate when it was handed down, although I note that the decision was notified to the applicant by letter dated 15 May 2008. Pursuant to transitional provisions bearing upon s.477 of the Migration Act 1958 (Cth) (“the Migration Act”), the decision is deemed to have been made on 15 March 2009.
The application before the Court was filed on 17 March 2010. That is approximately one year after the Tribunal decision is taken to have been made. The application was not filed within the prescribed time limit of 35 days pursuant to s.477 of the Migration Act and hence an extension of time is required if the Court is to deal with the application. In her application, the applicant did not seek an extension of time, but at the first court date did so orally. Today’s hearing was to deal with that request.
The background is that the applicant, who is from China, arrived in Australia on 14 October 2007. She applied to the Minister’s Department for a protection visa on 19 November 2007. That application was refused by the Minister’s delegate on 29 January 2008 and notified by letter dated the following day. The applicant applied to the Tribunal for review of the delegate’s decision on 15 February 2008.
The applicant was invited to attend a hearing before the Tribunal and did so. At the hearing, the applicant gave evidence in relation to her asserted practice of Falun Gong, which was the basis of her protection visa claims. The Tribunal was prepared to accept that the applicant had engaged in some Falun Gong activities in Australia but disregarded that conduct, as required by s.91R(3) of the Migration Act. The Tribunal did not accept that the applicant was a Falun Gong practitioner in China or that she was at risk of persecution in China as a Falun Gong practitioner.
On 14 April 2010 the applicant faxed a document to the Court in which she set out the reasons why she seeks an extension of time. That statement was not in affidavit form but I gave the applicant the opportunity, which she accepted, to give oral evidence about it. In her evidence, the applicant confirmed that the contents of the document were true, save that she did not arrive in Australia on 15 October 2010, and that the applicant says that a person who assisted her as a migration agent warned her to maintain her claim to be a Falun Gong practitioner before the Tribunal, even though the applicant knew and discussed with the agent at the time of the Tribunal hearing that the Falun Gong claim was false. The applicant states that it was her agent who suggested she make the claim to be a Falun Gong practitioner, and her agent warned her if she did not maintain the claim she would be sent back to China. The applicant stated that she was introduced to the agent shortly after her arrival in Australia and placed her trust in her for the purposes of making a protection visa claim.
The applicant stated that her protection visa claims appearing in the statement on page 27 of the court book were false, save that it was true that the applicant ran a beauty salon in China for over 20 years before she came to Australia. The applicant stated that the evidence she gave to the Tribunal about her practice of Falun Gong was entirely false. The applicant recalled signing several documents when requested to do so by her agent and, while she was unsure whether the signatures appearing on the protection visa application and review application were hers, she conceded that they might be hers. The applicant stated that the agent’s name was Mei Lan Xue and that she operated from an office in a building which might be Dixon Tower in Chinatown. It does not appear that a person of that name is or has been a registered migration agent. The applicant said that after the Tribunal hearing she had several conversations with Ms Xue but later lost contact with her, and had been told that Ms Xue had returned to China.
The applicant stated that she was unaware of the outcome of her Tribunal application until she was taken in to detention at Villawood. She then decided to make this present application to the Court in the belief that it might give her the opportunity to make claims for protection on the basis that she now asserts is true, namely that she is an underground Christian. The applicant’s evidence was plausible. I am prepared to accept that the applicant did engage the services of a person named Mei Lan Xue who assisted her to prepare an untruthful protection visa application and an untruthful application to the Tribunal, and who coached her to give evidence before the Tribunal which was entirely false. It follows that both the Minister’s Department and the Tribunal were grievously misled.
However, I also conclude from the applicant’s evidence that, while Mei Lan Xue may have engaged in improper or unlawful conduct, the applicant was herself a knowing and willing participant in the misleading of the Minister’s Department and the Tribunal.
On an extension of time application, the issue is whether the interests of the administration of justice require the granting of an extension of time. The delay of 12 months since the decision was taken to have been made is a significant one. The applicant’s explanation of that delay was simply that she was unaware of the Tribunal decision. She relied on Ms Xue to tell her about the outcome of each stage of the process. However, the applicant also stated that she was afraid of being sent back to China and, in my view, the applicant chose not to make any enquiry of either the Tribunal or the Minister’s Department by reason of that fear. The applicant conceded in evidence that she suspected she was not believed by the presiding member at the Tribunal hearing and it would have been consistent with a fear of an adverse outcome for the applicant not to make any inquiry.
The applicant now seeks the opportunity to make claims of persecution based upon her Christian faith, which she says are true. The Minister has the discretion, pursuant to s.48B of the Migration Act, to permit such a further application. That is entirely a matter for the Minister. A relevant factor to take in to account in that connection would, in my view, be that the applicant’s protection visa application was, on its face, suspicious and might have been the subject of inquiry at the time it was made. In particular, the applicant stated in the form in answer to question 15 (court book, page 9) that she did not receive assistance in completing the form. That was, on its face, highly implausible as the form was typewritten in the English language. Secondly, the applicant gave a postal address of 238/226 Elizabeth Street, Surry Hills. She gave evidence today that that was not her postal address, but that of her agent. It is notorious that post boxes at that address are used by unregistered migration agents.
The issue on a trial of this matter would be whether there was a fraud on the Tribunal which prevented it from performing its statutory function. While I am prepared to accept that Ms Xue assisted the applicant to make and pursue false claims, and thereby mislead the Tribunal, the applications were made by the applicant and she maintained the claims in her evidence to the Tribunal. She had the opportunity to reveal the truth to the Tribunal but did not do so. She must take responsibility for the pursuit of those false claims.
There would, in my view, be no basis in the light of the facts for the Court to set aside the Tribunal decision. In substance, this is simply a case of an applicant making and pursuing false claims for protection with the assistance of an unregistered migration agent. I reject the application for an extension of time.
I will order that the application is dismissed as incompetent.
I accept that there is no right of appeal from my decision refusing the extension of time, having regard to the provisions of s.476A(3)(a).
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs in the scale amount of $2,935. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 30 April 2010