SZOLS v Minister for Immigration
[2010] FMCA 573
•11 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOLS v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 573 |
| MIGRATION – Refugee Review Tribunal – application for extension of time – no satisfactory explanation for delay – substantive application lacking merit – application dismissed. |
| Migration Act 1958 (Cth), ss.476, 477 |
| SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 |
| Applicant: | SZOLS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1276 of 2010 |
| Judgment of: | Nicholls FM |
| Hearing date: | 11 June 2010 |
| Date of Last Submission: | 11 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 11 June 2010 |
REPRESENTATION
| The Applicant: | In Person |
| Appearing for the Respondents: | Ms J Dinihan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 10 June 2010 is dismissed as not competent.
The applicant pay the first respondent’s costs set in the amount of $1,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1276 of 2010
| SZOLS |
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 is an application made on 10 June 2010 made pursuant to s.476 of the Migration Act1958 (Cth) (“the Act”) which seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 January 2009 which affirmed the decision of a delegate of the Minister for Immigration and Citizenship to refuse a protection visa to the applicant.
The second application is an application to extend the time within which such an application can be made to this Court.
Before the Court
The applicant in both these matters is before the Court today. She has been assisted by an interpreter in the Mandarin language. Ms J Dinihan appeared for the first respondent.
The material that has been put before the Court today, in addition to the two applications, is the affidavit of the applicant made on 17 May 2010. Leave was granted to the applicant for that affidavit to be read into evidence before the Court. That affidavit sets out certain matters relevant to the circumstances in which the applicant made her application for a protection visa. It also annexes a copy of the Tribunal’s decision record of 28 January 2009 which is the subject of her challenge. The applicant was not cross-examined.
I also have before me a document which I have marked as Respondent’s Exhibit 1 (“RE1”), which is a chronological background of facts relevant to this matter as asserted by the Minister.
I note that the relevant statutory provision that is invoked by way of this application is that found in s.477 of the Act. Section 477(1) sets out the time limit by which applications to this Court seeking to complain about a decision of the Tribunal must be made under s.476. Section 477(1) requires any such application, such as the one made by the applicant today, to be made to the Court within 35 days of the date of the Tribunal decision.
Section 477(1) came into operation on 15 March 2009. By way of the relevant legislative transitional arrangements any Tribunal decision made prior to that date is, for the purposes of s.477(1) to be taken as having been made on 15 March 2009 (Schedule 2 to the Migration Legislation Amendment Act (No 1) 2009 (Cth)). Therefore the date on which the Tribunal decision in this case can be said to have been made was 15 March 2009. That means the 35 day period starts as from 15 March 2009.
On calculation therefore the date by which this application should have been made to the Court is 19 April 2009. The application was not made within 35 days of 15 March 2009, and therefore does not satisfy the time limit set out in s.477 of the Act. Section 477(1) does not provide for any extension of that time. However s.477(2) of the Act does provide for circumstance where that time may be extended.
There are two limbs to s.477(2). Section 477(2)(a) requires that an application has been made in writing to this Court specifying why the applicant considers that it is necessary in the interests of the administration of justice for the Court to make an order extending the relevant time. The application made by the applicant for an extension of time satisfies those requirements.
The issue then becomes whether the applicant can therefore satisfy the Court, pursuant to s.477(2)(b), that it is in the interests of the administration of justice that the Court make such an order.
There are a number of elements that are relevant to the Court’s consideration of what is in the interests of the administration of justice:
1)The extent of the delay and whether there is any satisfactory explanation for that delay in making the application to the Court.
2)Whether there is any merit in the grounds of the substantive application.
3)Whether there would ensue any prejudice to the respondent if the orders sought were to be made.
4)The impact on the applicant if the orders were not made.
5)What can broadly be described as the interests of the Australian community in determining what is in the interest of the administration of justice.
6)The exercise in itself of the Court’s discretion.
Consideration
Turning first to the matter of the delay, the extent of the actual delay in the current case is some 16 months. That is to be reckoned from the time immediate to or the time following the making of the Tribunal’s decision to the time of the making of the application to the Court.
On the evidence that the applicant has put before the Court, and I note this must be read in context of the background chronology that has also been put before the Court, the facts are as follows.
The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia in July 2008. In her affidavit the applicant says that she came to Australia on 13 July 2008 and applied for a protection visa on 20 August 2008.
The applicant then says in her affidavit that this application was prepared by a “friend” who put in that application a refugee claim saying that she had been persecuted by the Chinese Government due to her Falun Gong practice. The applicant’s evidence before the Court is that in fact she is not a Falun Gong practitioner at all and that the application did not contain genuine information about her situation in China.
The applicant’s evidence further is that she applied for review to the Tribunal on 4 November 2008. She claims that the Tribunal’s decision record was sent to a friend’s address and that he did not forward the Tribunal’s letter to her in time. She says in her affidavit that by the time she received the decision the 28 day time limit had passed. There is a reference in her affidavit to: “… I did not know how I could apply for special leave and therefore did not file my judicial review application.”
The applicant says that she is currently detained in the Villawood Immigration Detention Centre (“VIDC”) and that she was told by other detainees that she could still apply to this Court for judicial review.
Before the Court, the applicant explained that her application, and it would appear that that includes the affidavit that she has put before the Court, was prepared for her by a registered migration agent who visited her on one occasion in the VIDC. She has provided the Court with the name, address and contact details of this migration agent. These details have also been provided to the Minister’s solicitors.
For reasons which will become apparent during the course of my judgment, I ask the Minister’s solicitor to refer to those relevant officers in the Minister’s department who deal with the conduct of migration agents that the action of this migration agent become the subject of investigation in this matter and, in particular, with a view to determine whether the agent, who does not appear to be a person admitted to practise law, has purported to give legal advice to this applicant in relation to a matter of litigation. That conduct, if sufficient basis is established following investigation, should be the subject of referral both to the Migration Agents’ Registration Authority and the relevant authorities that are concerned with unqualified persons being involved in giving legal advice.
The import of this matter, though, can also be seen in the impact that it has had on the applicant’s conduct. Indeed, in her bringing her case before this Court. From what the applicant told the Court today, I am not satisfied that the applicant had any real understanding of what the purpose of making the application to the Court actually was. The applicant told the Court that she wanted the Court to give her more time to stay in Australia because her husband in China had abused her, and then subsequently told the Court that he had abused her because of debts that she had incurred in China prior to her departure for Australia.
I was not satisfied that the applicant understood that in making her application to this court, even putting to one side an application made out of time, what the applicant was seeking to assert was a legal error, that is that the Tribunal had made jurisdictional error in its decision such that the Court should send her “refugee application” back to the Tribunal for reconsideration.
In any event, turning now to the circumstances of the application for a protection visa, it is quite clear that the applicant’s intention in applying for a protection visa was to find some way to remain lawfully in Australia. The clear inference from her own evidence is that she did not know and, in one very important sense, did not care what her friend wrote in the protection visa application. She was simply seeking a way of being able to remain lawfully in Australia.
It is quite clear that whatever was stated in that initial application for a protection visa was not true. The applicant’s evidence before the Court today is that, in contrast to what had been put in that application, she in fact is not a Falun Gong practitioner who was subjected to any persecution by the Chinese Government. In fact, the applicant’s evidence is that the application did not contain any genuine information about her situation in China.
Although it is not necessary for the ultimate disposition of this case, I note that a clear inference can be drawn from what the applicant told the Court today that, while she left the content of the protection visa application to her friend whom she told the Court she had met in a park, and left matters to the friend, she had knowledge that what was put in that application was, in fact, not true.
It also became clear from the applicant’s submissions today that she really was not able to distinguish between the application for a protection visa and the separate process of review by the Tribunal following the refusal of that application. It was quite clear in her submissions to the Court that the applicant, at best, saw the application to remain in Australia and the process before the Tribunal as being part of one process.
I need to note the caution with which I say the following, but it also brings into the question the role of the migration agent who prepared the documentation for this Court on the applicant’s behalf. At [1] of the applicant’s affidavit the distinction between the process of the protection visa application before the Minister’s department and the process of review before the Tribunal is quite clearly delineated. The applicant’s evidence to the Court is that the Tribunal’s decision was sent to her friend’s address and that he did not forward the letter to her in time. That time is said to be the “28 day” time limit.
On having observed the applicant before the Court today, and I note here that what the applicant told the Court today was not put before the Court in any evidentiary context, her submissions leave a great question mark as to whether the applicant herself clearly understood what was meant by the 28 day time limit and the receiving of the notification from the Tribunal of its decision within that 28 day time limit.
It must be said the applicant’s signed affidavit is clearly making reference to a time limit that is not the time limit set out in the current version of the relevant s.477(1) of the Act. The applicant’s evidence put before the Court by way of her affidavit, in light of her submissions, raised questions about her actual knowledge of matters that she has put in her affidavit.
But even if I were to put all of that to one side and take on its face exactly what has been put in the affidavit, I am not satisfied that a reasonable explanation has been provided to the Court for the delay in making the application for judicial review.
In her evidence, the applicant says that the friend did not forward the Tribunal’s letter to her “in time”. When that is read with the following sentence, that is “By the time I received the decision the 28 days limit had passed,” an inference can be drawn that the applicant did receive the notification from the Tribunal at some time prior to her being taken into immigration detention, but it was not within what she regarded as the “28 day time limit”. The inference is further strengthened by the following sentence:
“I did not know I could apply for special leave and therefore I did not file my judicial review application.”
When all of that is read together the clear inference to be drawn is that the applicant did receive the Tribunal’s decision at some time prior to her detention. That it was at some earlier time, albeit more than 28 days after the Tribunal’s decision. But that she did not seek judicial review because she did not know that she could do so out of time. What I also take into account is that in the chronology of events put before the Court the applicant was taken into immigration detention on 6 May 2010. She was notified by the relevant authorities on 9 June 2010 that action was to be taken to remove her from Australia on 12 June 2010.
The application to the Court was made on 10 June 2010. Ms Dinihan submitted to the Court that the coincidence of timing in this regard leads to the inference that the applicant has made her application for judicial review the day after being notified of her removal from Australia. That the further inference to be drawn from that is that this was an attempt to further her stay in Australia. Certainly the applicant’s submissions to the Court today confirm these submissions.
But importantly for the purposes of whether there is any satisfactory explanation for the delay, the timing of the applicant’s application to the Court was not made upon being detained and on her own evidence notified of the reason for the detention, being that the Tribunal had refused her decision. But it was made well over a month later upon being told that she was to be removed from Australia. On the evidence, therefore, as presented before the Court the applicant’s explanation for delay is not satisfactory.
That is the evidentiary situation before the Court. I note that I must be cautious in what I am about to say but I feel compelled to say that, based on submissions made by the applicant today, it appears that the applicant was content to leave matters in the hands of others and, indeed, it is not clear, based on those submissions, when she had actual knowledge of the Tribunal’s decision.
This raises the question whether the Court should provide the applicant with more time to more properly put her evidence or further evidence or to explain her evidence further in an evidentiary context to the Court. This may involve the applicant needing to have put evidence to contradict the evidence that she already has put before this Court which, as I said, quite clearly does not provide a satisfactory explanation for the delay.
However in the circumstances of this case I cannot see that any useful purpose would be served in further delaying the disposition of this matter for that purpose, because the explanation for the delay is only one of the elements that are relevant to the consideration of whether it is in the interests of the administration of justice that the time for the making of the application to the Court be extended.
Ultimately, in the current case I cannot see that there is any merit in the one ground of the substantive application that has been put before the Court. Nor can I see that there would be any useful purpose served in further delaying the disposition of this matter to enable the applicant to further develop that sole ground, nor indeed the possibility of being able to raise any other grounds to show jurisdictional error on the part of the Tribunal.
The sole ground of the application is in the following terms.
“The Tribunal [sic] claims that her protection visa application was rejected by the Refugee Review Tribunal due to other person’s fraud. The applicant claims that her application was prepared by a friend who provided incorrect and misleading information to the Tribunal.”
What is clear is that whoever drafted this ground for the applicant (and it is very clear that it was drafted, on the applicant’s submission, by the migration agent to whom I have already referred), by the reference to “another person’s fraud”, is seeking to invoke what was relevantly said by the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 (“SZFDE”). A case where fraud by a third party was found to have vitiated the process before the Tribunal such as to lead to a finding that the Tribunal had fallen into jurisdictional error.
In SZFDE the fraud involved a person who was not a registered migration agent but who claimed to be to the applicants in that case. He also claimed to be a solicitor, but at the time he had been struck off from the relevant roll of solicitors. He had told the applicants in that case not to attend a hearing when invited to do so by the Tribunal, in circumstances where that advice or direction was given for the purpose of concealing his own conduct in having taken money from the applicants in circumstances where he had held out expertise and authority in being able to assist applicants when, indeed, he had none.
In that case, the Court reasoned that the Tribunal is compelled to invite an applicant to a hearing before it in certain circumstances. While the Tribunal issued a letter of invitation, the applicants were prevented from attending the hearing because of the conduct of the third person. In those circumstances, the fraud committed by that third person was such that it affected the giving of the invitation to hearing by the Tribunal. A statutory obligation binding on the Tribunal was therefore frustrated or vitiated by that third party fraud, and for that reason there was held to be jurisdictional error.
There is nothing of that in the current circumstances. The applicant’s evidence is that what her friend put in the protection visa application was not true. It is not clear what the extent of her knowledge was at the time of the making of that application, but clearly the application for a protection visa is a different process to the process of the conduct of review before the Tribunal. There is nothing before the Court to show that any of that process, that is the conduct of the review, was vitiated by any fraud by any third party.
In fact, in the current case the applicant did attend a hearing before the Tribunal.
This is clear from the Tribunal's decision record that has been put before the Court by way of the applicant's own affidavit. It was confirmed by the applicant herself before the Court today, although it was not clear whether the applicant properly understood whether she had appeared before a Tribunal member or someone else.
What is clear is that she told the Tribunal member at the hearing that everything that had been relevantly put in the protection visa application was not true. She told the Tribunal member that she had fallen into debt in particular circumstances in China, that she had borrowed money to invest in some business, that the persons who had set up the business disappeared with her and other people’s money, and that this had caused her financial problems. She also told the Tribunal that she wanted to work in Australia for two years to make money to pay off her debts. She told the Tribunal that she knew that she was not a refugee. (See [24] to [26] of the Tribunal’s decision record at page 5 as annexed to the applicant’s affidavit.)
In one sense it is laudable that at the first opportunity available to her the applicant told the truth to the Tribunal. Where that leaves matters is as follows. On the applicant’s own evidence the Tribunal found that there was no Refugees Convention connection arising from the applicant’s circumstances such that she should be given protection in Australia as a refugee. Plainly, on her own admission, she knew she was not a refugee.
Before the Court today the applicant did not resile from what she had told the Tribunal. The only additional matter that the applicant told the Court that she did not tell the Tribunal was that her husband abused her because of the debts that she had incurred. I cannot see that that matter, even if accepting that it is true, would be such as to cause any change, or affect the Tribunal’s finding that the applicant’s claims of events in China do not exhibit the necessary Convention connection such that the Tribunal could have determined the applicant to be a refugee.
In fact, again, the applicant very truthfully appears to have told the Court that her concerns about going back to China had nothing to do with any refugee or persecution concerns, but were related to her husband and his abuse of her following her incurring of debts.
While it is debatable whether it can be said that any fraud occurred in relation to the Minister's department in the making of the application for a protection visa, and on the best evidence available to the Court it appears that, while she did not know the detail of what was said, the applicant was at least complicit in the making of a protection visa application in circumstances where she knew she was not a refugee. What is perfectly clear is that, by the time the applicant came before the Tribunal, and certainly from the time of the making of the application for review to the Tribunal and relevantly the hearing before the Tribunal, there is no evidence that any fraud was committed of the type necessary to vitiate any process before the Tribunal.
There is no evidence of any third party involvement in the process relevant to the Tribunal, let alone any fraudulent conduct, such as to vitiate the process before the Tribunal. Nor in the circumstances that have been presented before the Court can I see that any useful purpose would be served by allowing the applicant further time to develop her argument or to provide evidence of any such fraudulent conduct. There simply is no scope for this, given what has been put before the Court in evidence today and what has been said to the Court by the applicant.
Ms Dinihan submitted that in this case if the applicant were given more time little prejudice would ensue to the Minister. While the Minister would be put to the burden of preparing relevant documentation and, indeed, a further occasion before the Court, if there was some reason to require this, any such prejudice to the Minister would not be such a factor that the Court would consider as outweighing the need to act in the applicant’s favour in the interests of the administration of justice.
The impact on the applicant would, of course, be removal, most probably tomorrow, back to China, and her arrival in China may indeed, on what she has said to the Court (not in any evidentiary context), have put her within the ambit of further abuse by her husband. But this, in my view, must be seen in light of what is in the interests of the Australian community as a whole and that is that the Australian Parliament has seen fit to institute a process by which persons are permitted to come and to remain in this country.
In so doing the Parliament is acting in what it considers to be the interests of the Australian community. The Minister for Immigration is charged with the administration of the relevant legislation. Within that scheme it is quite clear that it is not available to persons to determine for themselves that they will come to Australia for the purposes of working and making money in order to pay off debts in their home country. Persons desiring to do this must otherwise meet whatever relevant criteria may exist for any category of visa that they may be eligible for consideration. This is not a situation where the applicant has been determined to be a refugee such that her return to China would be seen to fall within the concept of refoulement. Nor, indeed, does the applicant assert that she is in need of such protection as a refugee. The applicant’s complaint about her abusive husband is not a matter for the Australian authorities but, with respect, a matter properly for the Chinese authorities.
Weighing all of this, it is quite clear that the overwhelming weight of consideration of the relevant elements in exercising the Court’s discretion point to the Court not being able to be satisfied that it is in the interests of the administration of justice to extend the time by which the applicant can put her substantive application before the Court. Even in circumstances, contrary to the actual evidence put before the Court, where it could be said that, on what the applicant has submitted to the Court, some reasonable explanation for the delay may be available to her, what remains is that there is no merit in her application for the substantive application for judicial review of the Tribunal’s decision.
Nor is there anything before the Court today to suggest that the applicant, in the interests of fairness, should be given more time to develop any other ground or, indeed, to bring further evidence in relation to the ground as pleaded. The interests of the Australian community are in my view best served by allowing the Minister to properly and lawfully administer the relevant provisions of the Act.
Conclusion
For these reasons, I am not satisfied that the extension of the time for the making of the application should be granted to the applicant. In those circumstances, the application made to the Court is out of time and is therefore incompetent. It must be dismissed for that reason. I will make an order accordingly.
Postscript
In my view, it is a deplorable state of affairs that there are persons in our community who hold themselves out as “friends”, and sometimes these friends are registered migration agents who, as in this case, have clearly taken money from the applicant and provided her with “a bit of paper” and literally left her to her own devices before this Court. It is deplorable that persons such as the applicant should be subjected to being taken advantage of by a person such as this registered migration agent who, the applicant says, assisted in the drafting of her application to the Court.
For that reason I asked Ms Dinihan that the alleged conduct of this person be referred to the appropriate people in the Minister’s department for proper investigation.
But having said that, ultimately the applicant must take some responsibility for her own actions. It is clear she came to this country with the purpose of seeking to remain in Australia to work for two years to make money. That, in itself, is not something that should be the subject of criticism and I do not criticise her for that. But what is worthy of criticism is that she allowed falsehoods to be put to the relevant authorities so that she could achieve that outcome.
Costs
For the current purpose, in my view it is appropriate that an order for costs be made for the reason that, notwithstanding her claim not to have knowledge of the likelihood of such an outcome, the Minister is entitled, in the current circumstances, to recover some of the legal costs that have been incurred in responding to the application that has been made. As to the amount, in my view it represents a reasonable amount having regard to the work that has been done by the Minister’s legal representatives in responding to and dealing with the application that has been made.
I also note that if the applicant were to be removed from Australia tomorrow, as is proposed, the likelihood of recovery of any funds may diminish or even be remote. That is, the Minister being able to enforce any order that I make. But that does not affect the efficacy of the order that I propose to make today. I note that such an order does have longer term consequences for the applicant because any failure to pay what ultimately may become a debt to the Commonwealth of Australia may result in bars being put to her capacity to travel to Australia at any future time.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 4 August 2010
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