SZOOT v Minister for Immigration
[2010] FMCA 886
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOOT v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 886 |
| MIGRATION – VISA – Protection Visa (866) – Refugee Review Tribunal – application for review of RRT decision – delay – extension of time – whether the time for making the application should be extended – where there have been earlier judicial proceedings in respect of the Tribunal decision – where the applicant has not raised an arguable claim for relief – where the applicant did not disclose to the Court the earlier judicial review proceedings when filing his application – whether it is necessary in the interests of the administration of justice to order that the time for making the application be extended – whether applicant has provided a satisfactory explanation for the delay in filing the application – credibility issues. PRACTICE & PROCEDURE – Primary decision – Federal Magistrates Court has no jurisdiction to review a primary decision. |
| Migration Act 1958 (Cth), ss.420, 425, 426, 476, 477, 486D Migration Legislation Amendment Act (No 1) 2009 (Cth), Schedule 2, Item 7(2) |
| Lie v Refugee Review Tribunal and Ors (2002) 190 ALR 601 S363 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs and Ors [2005] FCA 1612 Muin v Refugee Review Tribunal (2002) 76 ALJR 966 |
| Applicant: | SZOOT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1782 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 November 2010 |
| Date of Last Submission: | 5 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appeared in person |
| Solicitors for the Applicant: | No solicitor on the record |
| Counsel for the Respondents: | Ms Combes |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1782 of 2010
| SZOOT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal which was handed down on 15th July 1999. As the application was not filed until 17th August 2010, over eleven years later, it can be seen that the Applicant does not have an easy task in persuading the Court that the time for making his application should be extended under s.477 of the Migration Act 1958.
The First Respondent, the Minister for Immigration and Citizenship, has filed a response, opposing the application for an extension of time. The grounds for opposing the application are:
a)There have been other judicial review proceedings in relation to the Tribunal decision;
b)The Applicant has commenced this proceeding without disclosing the previous judicial proceedings, contrary to s.486D(1) of the Migration Act;
c)The application has not raised an arguable case for the relief claimed;
d)There has been delay in seeking the remedy; and
e)It is not necessary in the interests of the administration of justice to make an order extending the time because the Applicant has not provided a satisfactory explanation for the unwarranted and unreasonable delay in filing the application.
Background
The Applicant is a citizen of Bangladesh who arrived in Australia on 26th October 1996. He applied for a protection visa on 25th November 1996. In a statement forwarded to the Department of Immigration and Multicultural Affairs (as it then was) by his lawyers on 4th June 1997, the Applicant claimed a fear of persecution on the ground of his political opinion. He claimed that he was arrested by the police on 7th December 1987 and tortured.[1]
[1] See Court Book at page 33
The Department of Immigration and Multicultural Affairs wrote to the Applicant and invited him to attend an interview with an officer of the Department on 3rd July 1997.[2] On 1st July 1997 his solicitors forwarded to the Department a further statement and some other supporting documents.[3]
[2] Court Book 69
[3] Court Book 80
On 12th September 1997 the application for a Protection Visa was refused. In the delegate’s Protection Visa Decision Record, the delegate noted the applicant’s claim that there was a false case against him in Bangladesh but found that “the applicant would receive due process of law and a fair trial if a case against him was made.”[4]
[4] Court Book 121
The Applicant applied to the Refugee Review Tribunal for review of the delegate’s decision on 21st October 1997.
Application to the Refugee Review Tribunal
The Tribunal wrote to the Applicant on 16th October 1998, sending him a Notice under Section 426 of the Migration Act 1958. The Tribunal informed the Applicant that he was entitled to attend a hearing to give oral evidence and asked him if he in fact wished to attend.[5] The Applicant forwarded a Response to Hearing Invitation to the Tribunal on 4th November 1998, advising that he wished to attend a hearing.[6]
[5] Court Book 145
[6] Court Book 147-149
The Applicant was invited to attend a hearing on 24th February 1999.[7] His solicitors forwarded a number of newspaper clippings to the Tribunal in support of his case.[8]
[7] Court Book 152-153
[8] Court Book 155-167
The Applicant attended the Tribunal hearing on 24th February 1999 and gave evidence with the assistance of an interpreter in the Bengali language. Two witnesses gave evidence on the Applicant’s behalf.
The Refugee Review Tribunal Decision
The Tribunal handed down its decision on 15th July 1999, affirming the decision not to grant the Applicant a protection visa.[9]
[9] Court Book 171
In its Decision and Reasons for Decision, the Tribunal considered the Applicant’s claims, noting that:
The applicant’s claims are set out in written submissions to the Department, an interview with an officer of the Department, written submissions to the Tribunal and oral evidence given to the Tribunal on 24 February 1999.[10]
[10] Court Book 177
The Tribunal summarised the Applicant’s claims at pages 4 to 10 of its Decision.[11] The Tribunal also considered a number of items of independent country information about the political situation in Bangladesh.[12]
[11] Court Book 177-183
[12] Court Book 183-184
The Tribunal’s Findings and Reasons
The Tribunal found that the Applicant had not been truthful about his political involvement in Bangladesh:
Whilst the applicant may have had an involvement at some level with the BNP it is not accepted that he held a position of significance or profile. His lack of knowledge and any clear understanding of the BNP indicates that he held no such position and had little if any involvement.[13]
[13] Court Book 185
The Tribunal gave little weight to the evidence of the Applicant’s two witnesses, noting that they were only able to make generalised statements about him and his past. There was also conflicting evidence between the Applicant and the witnesses as to how the Applicant knew them. The Tribunal was not prepared to put these inconsistencies down to memory fading over time and stated:
The witnesses despite these and other inconsistencies knew little of any detail of the applicant other than what he had told them, and even of that they knew virtually nothing. I consider that little weight can be given to any of their evidence.[14]
[14] Ibid
The Tribunal also had doubts about the documents that the Applicant had produced in support of his claim. The Tribunal noted a number of similarities in them and formed the view that they were not genuine, stating:
These common themes indicate to the Tribunal that they have been fabricated as I do not accept that these common aspects could reasonably have occurred if, as claimed, they were written by these different people at different places in different offices and at different times. The fact of them all being in a different type font further evidences an attempt to establish that they are different. It indicates to the Tribunal that they have been fabricated as I do not accept that this could reasonably nor possibly have occurred if they were genuine. I consider that no weight should be given to these documents. I find that the documents are not genuine.[15]
[15] Court Book 186
The Tribunal also found that the documents produced by the Applicant to substantiate his claim that he was arrested in 1987 were not genuine, noting not only the multiplicity of mistakes in the document but the independent evidence that there is widespread forgery of documents in Bangladesh.
The Tribunal did not consider the Applicant to be a credible witness and considered that little weight could be placed on any claim made by him. The Tribunal found that the Applicant did not have a well founded fear of persecution for reasons of a Convention ground and was therefore not satisfied that the Applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol.
As the Applicant did not satisfy the criterion set out in s.36(2) of the Act for a protection visa, the Tribunal affirmed the decision not to grant a protection visa.
Application for Judicial Review
The Applicant filed his application for review on 17th August 2010, accompanied by an affidavit. In that application he seeks:
a)Review of the Tribunal decision; and
b)Review of the delegate’s decision of 12th September 1997.
The Court has no jurisdiction to review the delegate’s decision, as it is a primary decision (see Migration Act 1958, s.476(2)).
The Applicant seeks the following orders:
a)Certiorari;
b)Prohibition;
c)Mandamus;
d)An order not to deport or remove the Applicant “until the matter is in process with the respondent’s delegate or with the Refugee Review Tribunal”;
e)Costs; and
f)Such other orders as the Court sees fit.
The Applicant relies on the following grounds:
a)The Tribunal made an error of law and failed to exercise the proper procedure;
b)Apprehended bias – that the Tribunal did not bring an impartial mind to the resolution of the matter before it;
c)Denial of natural justice and procedural fairness pursuant to ss.420 and 425 of the Migration Act;
d)A failure to comply with s.424A of the Act by not putting some important information to the Applicant after the hearing; and
e)Failure to provide natural justice and procedural fairness by not affording the applicant an opportunity to present his case.
The Applicant deposed in his affidavit filed in support of his application that he was not invited to the handing down of the Tribunal decision and was therefore denied procedural fairness. However, he concedes that he received it by mail approximately one week later.
The Applicant seeks an extension of time for making the application.
The reasons that he gives in his application are that he was unlawful and was detained in January 2000, which damaged him psychologically. He did not get in touch with the Department and has been unlawful since then. He states that due to “confusion and dilemma” he was not in a position to appeal to the Federal Magistrates Court. He was financially insolvent and could not afford filing fees and legal advice.
The Applicant filed an affidavit in support of his application for extension of time on 22nd October 2010. In that affidavit he claimed that he delayed commencing proceedings in this Court due to exceptional circumstances beyond his control.
The Applicant deposed that after the Tribunal decision was handed down in July 1999 he became an unlawful non-citizen without his knowledge, due to the negligence of his former migration agent. He was detained at the Immigration Detention Centre at Villawood New South Wales on 20th January 2000 and held there for 30 days. He claims that the detention had a devastating effect on his life, in that:
a)His girlfriend left him;
b)His mother had a massive heart attack after hearing the news;
c)His entire family was “ostracised and neglected” by the community, leading to the death of his mother;
d)He became very ill whilst in detention;
e)He lost his job;
f)His father died in 2004;
g)He developed a cancerous tumour;
h)He had a psychological breakdown;
i)He became a fugitive;
j)He has not had a Medicare card; and
k)He does not have permission to work.
The First Respondent, the Minister for Immigration and Citizenship, filed a response opposing the application for extension of time, supported by an affidavit of Judith Pownall, solicitor.
Ms Pownall’s affidavit states that it was made on the basis of her perusal of documents and records in relation to these proceedings and previous proceedings brought by the applicant. Ms Pownall deposes that:
a)In about February 1999 the Applicant was joined as an unrepresented party to a class action commenced by a Ms Lie in the High Court of Australia (Lie v Refugee Review Tribunal and Ors[16] );
b)On 20th June 2003 the Applicant filed a draft order nisi in the High Court seeking writs of mandamus, prohibition and certiorari, which application was transferred to the Federal Court of Australia in November 2004;
c)On 9th November 2005 Emmett J ordered that the application for orders nisi be refused (Applicant S363 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs & Ors[17]); and
d)The Applicant filed his application for review in this Court on 17th August 2010.
[16] (2002) 190 ALR 601
[17] [2005] FCA 1612
The Applicant attended Court on the date of the hearing. He produced some photographs and a copy of some medical notes by a Dr Peter Martin. He told the Court that after he was released from detention he went to see a lawyer, a Mr Mullah, whom he instructed to prepare an application for him. However, the lawyer left the country suddenly and the application was never made to any court. He said that he did not know what to do after that and he did not remember whether he sought any other legal advice.
He now seeks to legalise himself because he wishes to remain in this country.
The relevant law
Section 477 of the Migration Act requires that an application to the Federal Magistrates Court for review of a decision under s.476 of the Act must be made within 25 days of the date of the decision. However, the court may extend that time as provided by subsection 477(2):
(2)The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(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 interests of the administration of justice to make the order; and
(b)the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The Applicant claims in his affidavit of 22nd October 2010 that:
Following the decision, made by the Tribunal, in late 1999 I became unlawful non-citizen without my knowledge. That was happened to me due to the negligence of my former migration agent.
However, this statement is contradicted by the Applicant’s statement in his affidavit affirmed on 16th August 2010, where he says:
The decision on 15 July 1999 which I received by mail approximately a week later.
In any event, the Applicant must have known that his application for review was unsuccessful when he was taken into immigration detention on 20th January 2000. Unlike many detainees, the Applicant did not make an application to the Tribunal whilst he was in detention.
After he was released, the Applicant claims that he sought advice from a lawyer about commencing proceedings, but the lawyer left the country suddenly and so the application was never made.
The Applicant claims that a variety of misfortunes befell him once he had gone into detention and he was unable to apply to a court as a result of the psychological and medical difficulties he suffered as a result. He has produced no evidence in support of this claim. The documents from Dr Martin appear to relate to the tumour on his face.
The fact is that the Applicant has known that he is an unlawful non-citizen at the very least since he was taken into immigration detention in January 2000 and has not taken any steps to review the decision since then. He claims that he has been living a “fugitive life” because he has been aware of his unlawful status.
The fact that a person has been avoiding the Department of Immigration and Citizenship because he knows that he is an unlawful non-citizen does not constitute an acceptable explanation for the delay in applying for judicial review of the Tribunal decision.
It is also quite clear that the application for review of the Tribunal decision has no merit and the Applicant has no reasonable prospect of successfully prosecuting his claim for relief.
The Applicant’s claim for relief cannot succeed because:
a)He has already sought relief in other proceedings which have been dismissed;
b)He has failed to disclose these previous judicial proceedings in his application to this Court, contrary to s.486D(1) of the Act; and
c)He has not raised an arguable case for the relief claimed.
Earlier proceedings
As the annexures to Ms Pownall’s affidavit show, the Applicant filed a draft order nisi at the High Court of Australia on 20th June 2003 relating to the same Tribunal decision. At the same time the Applicant filed an affidavit in support, affirmed on 17th June 2003. The signature of the deponent to that affidavit appears to be identical to the signature of the Applicant on his affidavits of 16th August and 22nd October 2010 filed in this matter.
The application was transferred to the Federal Court. The District Registrar of the Federal Court wrote to the Applicant on 12th November 2004, advising him that his application had been transferred and inviting him to make such written submissions as he wished by 10th December 2004.
The Applicant made a written submissions, as he was invited to do. In his reasons for judgment of 9th November 2005, Emmett J noted that:
On 6 December 2004 the applicant filed a document styled ‘Applicant’s Submission’ with the Court, apparently in response to the invitation contained in the letter of 12 November 2004 to make written submissions on the question of whether an order nisi should issue.[18]
[18] S363 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1612 at [4]
It can be seen from his Honour’s decision that Emmett J considered the Applicant’s submission in making his decision to refuse the application for an order nisi:
The applicant’s submission complains that the RRT ‘did not consider my documents’. There is no evidence in support of this contention, and it is plain on the face of the RRT’s decision that the documents were considered. The submission complains of want of procedural fairness, but apart from the reference to Muin[19], there is a lack of specificity as to the way in which the RRT’s procedures are said to be unfair. There are assertions that the RRT member was seriously prejudiced in arriving at his decision, but there is no evidence too support those assertions, and a complaint of bias cannot be substantiated on the face of the decision itself. Much of the submission impermissibly intrudes into the area of merits review.[20]
[19] Muin v Refugee Review Tribunal (2002) 76 ALJR 966
[20] [2005] FCA 1612 at [7]
I am satisfied that the Applicant’s for relief in relation to the Tribunal decision the subject of this application has already been heard and dismissed.
The Applicant did not disclose the existence of these previous proceedings in his application to this Court. Against the heading “Other Court Proceedings” appear the letters “N/A”.
Subsection 486D(1) of the Migration Act provides:
A person must not commence a proceeding in the Federal Magistrates Court in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.
The Applicant has not disclosed in his application to this Court any details of the proceedings in the High Court and the Federal Court in relation to the Tribunal decision.
In view of the fact that the Applicant’s previous application in relation to the decision of the Refugee Review Tribunal that is the subject of this application has already been heard and dismissed, it is unnecessary to consider the merits of the Applicant’s claims for relief. There is no arguable case for the relief claimed.
The application for judicial review of the Tribunal decision is out of time. An application under s.476 of the Act must be made within 35 days of the date of the migration decision (s.477(1)).
The Tribunal decision was made on 15th July 1999. However, s.477 in its present form commenced on 15th March 2009. Under the transitional provisions in item 7(2) of Schedule 2 of the Migration Legislation Amendment Act (No 1) 2009, Tribunal decisions made before 15th March 2009 are taken to have been made on the date of commencement. Thus, the last day for filing an application for judicial review would have been 19th April 2009.
As the application was filed on 17th August 2010, it is almost sixteen months out of time.
The Applicant has not given a satisfactory explanation for the unwarranted delay in bringing this application.
The application for judicial review of the Tribunal decision lacks any merit, because the decision has already been the subject of earlier proceedings, which have been dismissed. The Applicant failed to disclose these proceedings when bringing this application.
It is not necessary in the interests of the administration of justice for an order to be made extending the time for making an application under s.477(2) of the Act.
The application will be dismissed with costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 15 November 2010
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