SZOKW v Minister for Immigration
[2010] FMCA 467
•3 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOKW v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 467 |
| MIGRATION – Review of decision of Refugee Review Tribunal – application for extension of time – no satisfactory explanation for delay – no merits to substantive application – application not competent – application dismissed. |
| Migration Act 1958 (Cth), ss.417, 422B, 424, 425, 477, 486I |
| SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 SZFDE v Minister for Immigration [2007] HCA 35 |
| Applicant: | SZOKW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1105 of 2010 |
| Judgment of: | Nicholls FM |
| Hearing date: | 3 June 2010 |
| Date of Last Submission: | 3 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 3 June 2010 |
REPRESENTATION
| The applicant: | In person |
| Solicitors for the applicant: | McQiu Lawyers, initially |
| Counsel for McQiu Lawyers: | Mr P Reynolds, initially |
| Counsel for Ms Qiu: | Mr Cutler |
| Appearing for the Respondents: | Ms B Rayment |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 19 May 2010 is dismissed as being not competent.
The applicant pay some of the Minister’s legal costs set in the amount of $950.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1105 of 2010
| SZOKW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore, Revised from Transcript)
I have before me today two applications. The first, made under the Migration Act 1958 (Cth) (“the Act”) on 19 May 2010, seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”), which was effectively made in April, or possibly early May, 1999. The decision was signed on 29 April 1999. This decision affirmed an earlier decision made by a delegate of the first respondent before the Court today to refuse a protection visa to the applicant. The second application before the Court seeks an extension of time within which to make the first application.
Background
A bundle of relevant documents has been put before the Court (“the Court Book” – “CB”). From the Court Book I note that the applicant is a citizen of the People’s Republic of China (“China”). He arrived in Australia on 1 February 1997. He applied for a protection visa. This application was received by the Minister’s department on 11 February 1997, although I note from the relevant parts of the application form that the applicant signed the application on 4 February 1997. The applicant’s claims to protection were set out in an attached document (see CB 24 to CB 33).
Claims to Protection
In his application, the applicant claimed to fear persecution if he were to return to China because of his religion, political opinion, and membership of a particular social group. Although it was not entirely clear, this appeared to arise from some difficulty with what can be called China’s “one-child policy”. Relevantly, there is nothing in the application itself to show that the applicant engaged a migration agent to advise and represent him in relation to his application. That part of the form which asks an applicant to provide details of any migration agent who assisted in the preparation of the application is answered in the negative (Item 12 at CB 7).
In the application, which the applicant confirmed before the Court was his application, he gave as the address to which correspondence should be sent a street address in Campsie, New South Wales (Item 13 at CB 7). With reference to Item 12 (at CB 13) this address was the same as his residential address. No other contact details were provided.
The Delegate
The delegate refused the application on 16 March 1998. The delegate found that the applicant had obtained a Chinese passport in his own name, and had twice departed China legally. The delegate found that the applicant could not have done this if the Chinese authorities had any interest in him.
The Tribunal
The Court Book shows that an application for review was made on 20 April 1998 (CB 51 to CB 54). Again, there is nothing in the application, or indeed otherwise in the Court Book to indicate that the applicant had engaged the services of a migration agent to assist and represent him before the Tribunal.
I note that, although this was a subject of questioning under cross-examination, I am satisfied that the application was made by the applicant, signed by the applicant and dated 1 April 1998 (see below).
The Tribunal appears to have written to the applicant by letter dated 22 April 1998, and acknowledged the application (CB 58). The letter set out the process by which the Tribunal would conduct the review. The letter specifically drew the applicant’s attention to the need to advise of any change of address or other contact details.
The Tribunal again wrote to the applicant by letter dated 25 August 1998 (CB 60 to CB 61). That the letter contains on its face a reference to a registered post notation. The letter was addressed to the address for service as had previously been notified by the applicant.
This letter told the applicant that the Tribunal had looked at all the papers relating to his application but that, based on these papers, the Tribunal could not make a favourable decision. It told the applicant that he now had an opportunity to come to a hearing for the purpose of giving oral evidence in support of his claims. A time, date and place for this purpose was given (2 October 1998). The letter also asked the applicant to contact the Tribunal. The Tribunal did not receive any response.
With reference to the Tribunal’s decision record, the Tribunal found that, in these circumstances, it had discharged its obligation to provide an opportunity to the applicant to give oral evidence before it (CB 64 to CB 71).
The Tribunal then proceeded to consider the matter on what had been put before it. The Tribunal noted the applicant’s claims and the information provided in and attached to his application. The Tribunal found that the applicant had not provided further material as he had promised to the delegate, or indeed attended the hearing before the Tribunal to address the problems of credibility with his claims. The Tribunal set out some examples of these credibility concerns (see generally CB 70).
In these circumstances the Tribunal was unable to be satisfied that the applicant had a well-founded fear of Convention related persecution. It therefore affirmed the delegate’s decision not to grant a protection visa to the applicant.
Application to the Court
I note that the substantive application to the Court was made on 19 May 2010. Section 477(1) of the Act provides a 35 day time limit from the date of the Tribunal’s decision within which such an application may competently be made to the Court. In the circumstances to which I have already referred, the application was clearly not made within 35 days of the date of the Tribunal’s decision.
I note relevantly that the current version of s.477 became operational on 15 March 2009. Given that the application to the Court was made after that date that is the version of s.477 that applies to that application. I note that in legislation introducing the current version of s.477 the relevant time by which the applicant should have made his application to this Court, in relation to the Tribunal decision, commenced on 15 March 2009 and ended 35 days thereafter (Schedule 2 of the Migration Legislation Amendment Act (No 1) 2009 (Cth)).
For the purposes of s.477(1) the application is, as I said, not competent. However s.477(2) does provide an opportunity for the time limit to be extended. The circumstances however require, first, an application to be made in writing to the Court specifying why it is in the interests of the administration of justice that the 35 day time limit be extended.
I am satisfied on the application that was made to the Court that this part of s.477(2), that is s.477(2)(a), is met. The issue, however, is whether the Court can be satisfied that it is necessary in the interests of the administration of justice to make an order extending the time.
Before the Court
The application came on for hearing yesterday (2 June 2010) in circumstances where the applicant was represented by a firm of solicitors, McQiu Lawyers. However when the matter was called before the Court yesterday the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Mr P. Reynolds of counsel appeared and said that he had been instructed in a limited capacity to seek leave for McQiu Lawyers to withdraw as the applicant’s solicitors. Ms B. Rayment appeared for the first respondent. Ms Xiaolin Qui of McQui Lawyers was also present in Court.
Mr Reynolds submitted that the applicant’s solicitors, McQiu Lawyers, sought to withdraw from the matter. At first he said that he appeared as a courtesy to assist in the application for leave to be granted for that purpose. Ultimately he advised the Court that he found himself in a situation of a conflict of interest in representing McQiu Lawyers in circumstances where he had previously provided legal advice to the applicant.
It was not clear why this conflict only became apparent to Mr Reynolds after he had appeared in Court, given that I could not see any additional event that occurred in Court to have given rise to any such conflict after the hearing had commenced. Nonetheless, given the concerns about matters such as legal professional privilege and that neither the applicant nor the solicitor in the separate relationship with Mr Reynolds had waived any such privilege, it was not appropriate to pursue the matter any further. I accepted what Mr Reynolds said from the bar table and he was excused from further participation in this matter.
It was then left for Ms Qui to press the application for McQiu Lawyers to be granted leave to withdraw from the proceedings. That is to cease acting for the applicant. During the course of her submissions a number of matters of concern arose. Her submission was that the application to the Court had been prepared by another person, identified as “Billy Shi” and who was not a lawyer, who is noted on the face of the application as indeed having prepared the application. This was in circumstances in which, at the time, it was not clear to the Court, nor otherwise made clear to the Court, what involvement Ms McQui had in preparing the application, nor indeed in its filing.
I note that on the face of the application McQiu Lawyers are said to be the lawyers representing the applicant and whose address for service was given as the address for service for the purposes of the application. In particular, I had two concerns about the application.
The first was the indication on its face that the applicant had at the relevant time engaged representation from a firm of solicitors. However the relevant lawyer’s certification was not made on the application as is required by s.486I of the Act.
Further, what is pleaded as the grounds of the application are clearly deficient in a number of ways. In particular, they read more as submissions, and perhaps assertions, which more properly should be put if possible as evidence before a Court. No proper ground of review was pleaded.
It became clear that the conduct of Ms Qiu and McQiu Lawyers was a matter of concern, and could be described as questionable at that point. I was mindful that the substantive application had been made on 19 May 2010. The solicitors had been involved in representing the applicant, as confirmed by Ms Qiu at least, soon after the making of the application. Yet the solicitors waited until literally the very moment of the beginning of the hearing to seek to withdraw from representing the applicant. No satisfactory explanation was offered.
This left the applicant in a very difficult position. I was concerned in considering whether to grant the leave sought that the applicant would be left in a highly prejudiced situation. I adjourned the matter until 1.30pm today to allow both the applicant and the solicitor to further consider the position and, if necessary, to obtain any further assistance or advice.
When the matter resumed today Mr Cutler appeared for Ms Qiu. I explained to Mr Cutler that I had concerns about her conduct (and, by extension, McQiu Lawyers) in the context of their ethical duty to both the Court and their client.
On her own submission Ms Qiu allowed this application to go forward with the name of her firm on the face of the application without having seen the application itself. Mr Cutler explained that, on his instructions, Ms Qiu and Ms Billie Shi, both registered migration agents, had some general agreement or arrangement to act together in relation to migration matters, and that where necessary Ms Shi would rely on or refer to Ms Qiu matters requiring legal representation or involvement by a solicitor.
I was also told that the first specific involvement by Ms Qiu in this particularly matter, in representing this applicant, was to have some general knowledge that an application to the Court would be made, but that the active involvement occurred some short time after the application had, in fact, been made.
This submission appeared to be at odds with what is contained in what I subsequently marked as “Respondent’s Exhibit 1” (“RE1”), which is a letter dated 27 April 2010 addressed to the “Freedom of Information Section” of the Tribunal. The letter is on McQiu Lawyers’ letterhead. Mr Cutler submitted that it was signed by Ms Qiu and contained her migration agent’s registration number. The letter seeks documentation from the Tribunal. It must be said that at least a very strong inference can be drawn from this letter that McQiu Lawyers and Ms Qiu were acting for the applicant at least as at 27 April 2010, long before 19 May 2010 when the substantive application to the Court was made.
Also of concern were submissions made to the Court that, in fact, the letter was drafted by Ms Shi and transmitted to Ms Qiu who then put it on McQiu letterhead, signed it on behalf of McQiu Lawyers, and put her migration agent registration number on it. But the assertion was, nonetheless, that even in those circumstances she was not acting for the applicant.
The matter also raises Ms Qiu’s ethical duty to her client. Such a duty would involve a solicitor acting on instructions. A concern arises at the very least by allowing the name of her firm of solicitors to go forward on the application to the Court in circumstances where, at the same time, submission was made to the Court that she had no involvement in the taking of instructions or the preparation of the application.
I should also note the circumstance hanging over these entire proceedings today are that the applicant has been notified by the Minister’s department that they intend to remove him from Australia tomorrow morning. I understand that this has been known to the applicant’s solicitors for some little while. Again, their conduct is of concern in light of the serious consequences of the unexplained timing of their application to withdraw from the proceedings.
In short, the following appeared relevant for consideration both of themselves and in the context of the application by McQiu lawyers for leave to withdraw from these proceedings at this late stage.
1)Ms Qiu’s conduct as the solicitor. (Should this be referred to the appropriate authority for dealing with conduct of solicitors.)
2)Ms Qiu’s conduct as a migration agent in this matter. (Should this be referred to the appropriate migration agent registration body.)
3)The role/conduct of Ms Billie Shi in preparing the application to this Court. (Should this be referred to the appropriate authority for investigation as a person purporting to act in the capacity of a solicitor in circumstances where that person is not entitled to assume, or to hold out, any such capacity.)
4)The conduct of Ms Billie Shi in this matter as a migration agent. (Should this be referred to the appropriate migration agent’s review body..
I advised Mr Cutler that before I could give consideration to these matters the relevant players should be given the opportunity to properly explain their conduct and actions. Much of what was put before the Court was by way of submission and not in any proper evidentiary context.
However in the meantime the application for leave to cease acting as the applicant’s solicitor became otiose. The applicant provided to the Court a document which contained Chinese characters. Once translated to the Court by the interpreter it could be recognised as a notice that he said he had sent to McQiu Lawyers withdrawing his instructions for them to act on his behalf in this matter (“AE1”).
The applicant then said he was content to proceed with the hearing today in circumstances where he would speak for himself. The hearing continued on this basis.
The applicant appeared in person. He continued to be assisted by an interpreter in the Mandarin language. He sought leave for his affidavit, which appears to have been made on 18 May 2010, to be read into evidence before the Court. I note that the applicant continues to be held in the Villawood Immigration Detention Centre. I note also that there is no indication on the face of the affidavit whether it was sworn or affirmed. Nor that any interpreter was used in interpreting what was said to be the applicant’s evidence, which was all stated in English, in circumstances where the applicant demonstrably, and on his own admission, does not speak English. Nonetheless, no objection was made to the affidavit. It was therefore read into evidence and the applicant was cross-examined by Ms Rayment.
The applicant’s case before the Court in support of the application for an extension of time, and indeed in support of the substantive application, is that in a matter of days after arriving in Australia, in certain circumstances which were explored during cross-examination, he engaged the services of a migration agent, a Ms Grace Chen, to assist him in making an application for a protection visa, the very application to which I have already referred. Noting, of course, that no such reference to any migration agent appears in any of the documentation in the Court Book.
The applicant’s claims before the Court generally are that he engaged the agent and that he had a number of conversations with her, most of which appeared to be at a railway station in Bankstown. In essence he left the conduct of the application to his agent. He was relevantly unaware that he had been invited to, or rather had been given the opportunity to attend at, a hearing before the Tribunal or that, relevant to the question of the delay in making the application to the Court, he had not been notified of the Tribunal’s adverse decision.
I should also note other evidence put before the Court was the Respondent’s Exhibit 2 (“RE2”), a copy of a letter dated 25 May 1999, which on its face is from the applicant to the then Minister for Immigration, seeking the Minister’s intervention pursuant to s.417 of the Act. That is, to substitute, by granting him a protection visa, a more favourable outcome than was provided by the decision of the Tribunal. The date of this letter was literally some weeks after the making of the Tribunal’s decision.
I also note Applicant’s Exhibit 2 (“AE2”), which consists of two letters, the first of which, dated 13 February 1997, is already before the Court (reproduced at CB 40 to CB 41) and is the acknowledgement of the applicant’s protection visa application. The second is a letter, addressed to the applicant at the only address that he had provided, both to the Minister’s department and to the Tribunal, as his address, and dated 9 June 1999, from Senator Kay Patterson, who was then the Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs.
The letter acknowledges receipt of the request for the Minister to intervene, pursuant to s.417 of the Act, and makes reference to such a request currently taking some time to finalise, but that the applicant would be contacted when the examination of his case had been completed.
There are a number of elements, as I have set out in a number of cases, but more recently in SZMFJ v Minster for Immigration & Anor [2009] FMCA 771, that are relevant to the consideration of the exercise of the Court’s discretion pursuant to s.477(2)(b) of the Act:
1)The extent of the delay and the reason for the delay;
2)Whether there is any merit in the substantive application made to the Court, such as to invite the Court to grant the extension of time in the interests of the administration of justice;
3)Any prejudice to the respondent;
4)The impact on the applicant;
5)The interests of the Australian public or the Australian community at large; and
6)The exercise of the Court’s discretion in itself.
Turning first to the issue of the delay. It is quite clear that the delay in this case is, by any measure, extraordinary. The decision of the Tribunal was made in 1999. The application to the Court was made in 2010. But what is of greater import is whether the applicant has been able to provide to the Court a satisfactory explanation for the delay.
The applicant was cross-examined at some length today on his affidavit. It must be said, with respect to the applicant, that there were a number of concerns about his evidence which lead the Court (both for that reason and another, which I will allude to in a moment) not to accept that there has been a satisfactory explanation put before it for the delay.
The applicant’s evidence was that he did not know of the Tribunal’s adverse decision and that, in essence, he left the matter in the hands of his migration agent, Ms Chen. But the applicant’s evidence as to how he engaged Ms Chen, how he found out about Ms Chen, her location, his meetings with her, the mode with which he communicated with her, the fact that he continued to receive at least some letters, on his own evidence, from the Minister’s department and the Tribunal at his home, all contained gaps and, as Ms Rayment submitted and I agree, are implausible.
In particular I found the following circumstances as set forth by the applicant implausible: that immediately upon arrival in Australia he met, by chance, a stranger on a train, albeit one whom he subsequently found out came from the same part of China as the applicant. But nonetheless, the applicant immediately explained to him his concerns about being persecuted in China and received assistance from this person in referral to yet another person who then took him to Ms Chen’s home, where the application for the protection visa was immediately drafted, yet he had no real knowledge about it.
At the very least I am satisfied, on the evidence before the Court, that the applicant was involved in the application for a protection visa, knew of the refusal of that protection visa, and I am satisfied, on the view of the evidence I have before me, that the applicant knew of the application for review to the Tribunal. It was the applicant’s evidence that although, and as Ms Rayment submitted, he acted with commendable speed in making his application for a protection visa, that subsequently and coincidentally about the time of the refusal of the review application by the Tribunal, and certainly by the year 2000, the applicant took no action to prosecute or pursue, or even to find out about his application. His evidence was that he did not speak to anyone for those ten years.
I have put together the relevant sequence of events, as set out from the material in the Court Book, with the sequence of events as explained through the applicant’s evidence. Even at its best, the applicant’s evidence was that he acted with speed in 1997, but after 2000 did nothing relevantly after the refusal of his application by the Tribunal. Approached no one and did nothing to press his claims for protection as a refugee in Australia.
I do not accept as plausible, in the circumstances, the applicant’s evidence that he had no knowledge of the request made to the Minister in May 1999 to intervene in circumstances where, as stated in the letter, he had been refused a protection visa by the Tribunal. Even if I were to accept that the applicant had engaged Ms Chen in some capacity, and I note that nothing was put to the Tribunal or the Minister’s department that she was involved, the applicant’s evidence is that at the relevant time leading up to the 28 May 1999 he was still in a position where he was able to contact Ms Chen.
It appears that the applicant’s difficulties in contacting Ms Chen, on his own evidence, were when he changed addresses from Campsie to move to Flemington. But this occurred after May 1999 (his evidence was July), and that he told Ms Chen that he had moved to Flemington. In all these circumstances I find it implausible that, even if the applicant himself did not draft the letter to the Minister, he certainly would have had knowledge of a letter being drafted on his behalf.
It is not necessary to canvass further the other implausible and inconsistent aspects of the applicant’s evidence. What I have already referred to is sufficient to show that at least as at the year 2000 the applicant did have, in my view, knowledge of his unsuccessful Tribunal application, and took no action to press his cause, either before this Court, or indeed anywhere else, in the following ten years until he was detained by officers of the Minister’s department and taken to the Villawood Immigration Detention Centre. Therefore, as I said, I do not accept the applicant’s evidence or, in the circumstances, that a satisfactory explanation has been given for the very lengthy delay.
But there is another, as submitted (correctly in my view) by Ms Rayment, critical and in some senses overwhelming reason not to grant the extension of time sought by the applicant. Even if one accepted the applicant’s evidence at its highest the merits of the substantive application do not reveal any reasonable prospects of success if they were allowed to go through to another occasion.
For the applicant to ultimately succeed, it is trite to say that the Court needs to discern some relevant jurisdictional error on the part of the Tribunal. Focussing therefore on that part of the applicant’s evidence and the grounds of the application as pleaded in the substantive application, I note first that, even taken at its best for the applicant, that is at its highest, the complaints that the applicant makes about his alleged migration agent (Ms Chen) do not rise above, at best, some claim of negligence on her part, perhaps even some incompetence.
But as was said by the High Court in SZFDE v Minister for Immigration [2007] HCA 35, the conduct that would be required of a third person, such as a migration agent, to vitiate any of the processes before the Tribunal, leading therefore to jurisdictional error, is conduct that could be said to be fraud or even conduct akin to fraud. The applicant himself describes, at its highest, the alleged conduct of the migration agent as being negligent. There is nothing before the Court, nor has the applicant indicated any need for any further opportunity, or the ability to put anything further before the Court, to show that the conduct came anywhere near to fraud.
As I have already stated it is difficult to try to draw some clearly articulated, properly pleaded grounds from what is set out in the substantive application. But in attempting to do so, one ground could be some complaint that the process before the Tribunal was vitiated by the fraudulent conduct of the migration agent. As I have already said, given the state of the evidence before the Court, in the absence of anything else (to which the applicant has made no reference) such a ground does not and would not succeed.
Again, looking for any possibility for the applicant, a second ground may be that the applicant, quite separate to the conduct of the agent, was denied the opportunity of attending a hearing before the Tribunal. This may lead to some consideration as to whether the Tribunal complied with any obligation pursuant to s.425 of the Act, which is concerned with Tribunal hearings.
I note in this case, given the relevant dates of the application and the making of the Tribunal decision, that the current version of s.425 does not apply. The previous version of s.425 which did apply at the relevant time, provided that where a review, as it was said on the papers, was not available to an applicant (that is, where the then s.424 of the Act was not available) the Tribunal must give the applicant an opportunity to appear before it to give evidence.
Noting, of course, that any such consideration needs to be considered as against the principles of procedural fairness at common law, or general law, given that the current provision of s.422B, which makes Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule, did not come into operation until June-July 2002.
On the evidence before the Court, either with or without the involvement of an agent, and even if it is accepted that there was an involvement by an agent, the applicant put before the Tribunal an application for review on 28 April 1998. The applicant’s evidence in this regard was such that I conclude that he did have knowledge of that application being made at that time. But even if the alternative as asserted by the applicant were to be accepted, that the application to the Tribunal was made by the agent, what remains is that the only contact detail given in the application was what has subsequently been confirmed as the applicant’s home address in Campsie, New South Wales.
At least a clear inference can be drawn from the material before the Court that on 25 August 1998 the Tribunal sent by registered post a letter to the address for service as provided in the application, notifying the applicant that he had an opportunity to come to a hearing to give oral evidence in support of his claims. In my view, therefore, the Tribunal complied with its procedural fairness obligations in notifying the applicant of this opportunity at the only address for service, indeed the only contact address, provided to the Tribunal.
The application was deficient in the sense that no other contact details were provided to the Tribunal. For whatever reason, either the neglect or the lack of competence on the part of the agent or, indeed, the other scenario that the applicant received the letter at his home, but chose not to do anything about it, the applicant did not appear at the time and place and on the date provided by the Tribunal. In those circumstances, the Tribunal then proceeded to make its decision on what was available to it.
I cannot see in the circumstances that the principles of procedural fairness of common law obliged or compelled the Tribunal to take any further action to contact the applicant. There is no evidence, for example, that the letter relating to the hearing was returned to the Tribunal as undeliverable. Even if it had been, there was no other contact mechanism provided by the applicant, or in the application, to the Tribunal, so that the Tribunal could have taken some alternative step.
Noting, of course, that the address provided in the application to the Tribunal was exactly the same address that had been provided to the Minister’s department. So the Tribunal, even if it had been in a position to make inquiries of the Minister’s department, would have progressed no further than the Campsie address.
Ultimately, the Tribunal, after some months, proceeded to make its decision on what was before it and, given what had been put before it, it was not surprising that the Tribunal, in effect, came to a similar conclusion to the delegate. I do not mean to imply in that that the Tribunal was in some way unduly influenced by the delegate’s decision. But simply it could not reach the position of satisfaction that the applicant was a person to whom Australia owed protection obligations under the Refugee’s Convention. I cannot see that jurisdictional error can be said to arise in what the Tribunal has done. Ms Rayment described the applicant’s substantive application as being hopeless. In the circumstances I can only agree. But add that, in any event, I cannot discern any reasonable prospects of success in the substantive application.
Turning to the other relevant elements, there is clear prejudice to the respondent that would ensue if, at least ten or eleven years after the making of a Tribunal decision, an applicant would be permitted to bring an application to this Court to challenge the Tribunal’s decision, particularly in circumstances where the applicant has not satisfactorily explained the delay and, on his own evidence, did nothing for at least the last ten years even to enquire as to the status of his application. Presumably, as submitted by Ms Rayment, if the applicant had not been detected by the officers of the Minister’s department, he would still be secreted somewhere in the Australian community.
The interests of the Australian public at large are not served by an applicant who comes to this country, acts quickly in claiming to fear persecution in another country, and then, at best, does nothing for ten years to pursue the issue of getting protection in this country in circumstances where he claims to fear persecution in China. It is certainly not in the interests of the Australian community for such a person to hide within the community in circumstances where it remains unexplained why such a person did not come forward earlier. If he truly believed that he would be persecuted if he returned to China, there is an expectation that, somewhere in that ten years, he would have taken steps to at least attempt to secure his protection in Australia.
The applicant should not gain some advantage because he has been successful in secreting himself and avoiding detection. Having said that, of course, it is quite clear that the impact on the applicant if he were to return to China would be of a high magnitude. I say this in circumstances where the applicant has been out of China, and indeed, on the evidence before the Court, in Australia since February 1997. The length of time alone would itself create an impact on the applicant, but that length of time, in my view, must be balanced against at least two matters.
The first is that the length of time was of the applicant’s own making. Second, there is no evidence before the Court that the applicant has made more than a basic attempt to integrate or to participate in life in the Australian community, noting that, particularly in Sydney, the Australian community is a multicultural community. It cannot be said, as it could perhaps in different circumstances, that the applicant has adapted to life in Australia to such an extent that returning to China would, in itself, be a hardship because of having adapted to a different life in this country.
But as Ms Rayment also correctly submitted, in my view, even taking the impact on the applicant at its highest, and putting to one side any prejudice to the respondent, and even putting to one side the interests of the Australian community at large, in exercising the Court’s discretion pursuant to s.477(2)(b) the factors that must weigh heavily are, first the unsatisfactory nature of the explanation for the extent of the delay, the extent of the delay itself, and even more importantly, the lack of any merit in the substantive application.
In all therefore I am not satisfied that it is in the interests of the administration of justice to extend the time for the making of this application. In these circumstances, the application made to this Court on 19 May 2010 seeking review of the decision of the Refugee Review Tribunal made in 1999 is not competent. I will therefore make an order dismissing the application on that basis.
Costs
In my view it is appropriate that an order for costs be made. The amount sought by the Minister is, in the circumstances and in my view, a reasonable amount, limited as it is to the latter part of the proceedings before the Court. I will make an order in that amount in favour of the Minister.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 6 August 2010
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