SZOQC v Minister for Immigration

[2010] FMCA 851

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOQC v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 851

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – application to bring proceedings out of time.

Migration Act 1958, ss.5, 65, 424A, 476, 477
Migration Legislation Amendment Act (No.1) 2009, cl.7 of sch.2

Applicant: SZOQC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2049 of 2010

Judgment of: Cameron FM

Hearing date: 25 October 2010

Date of Last Submission: 25 October 2010

Delivered at: Sydney

Delivered on: 25 October 2010

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $1,175.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2049 of 2010

SZOQC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of China, arrived in Australia on 9 June 1999. He lodged an application for a protection visa shortly afterwards which was refused by a delegate of the first respondent (“Minister”) on 13 August 1999. The applicant sought review of that decision with the Refugee Review Tribunal (“Tribunal”). However, on 1 March 2000 the Tribunal affirmed the decision of the delegate to not grant the applicant a protection visa because it was not satisfied that the applicant was a person to whom Australia had protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967. On 17 September 2010 the applicant commenced proceedings in this Court seeking judicial review of the Tribunal’s decision.

2. The matter is before the Court today for consideration of the applicant’s application that the respondents should show cause why relief should not be granted to him. The Minister sought an immediate hearing on the first return date of the application. In light of circumstances which indicated that the proceedings had been brought well out of time, the Minister submitted that the Court should at this stage determine whether it is necessary in the interests of the administration of justice to extend time to bring the proceedings. 

3. Having heard the submissions by the parties and having taken into consideration the evidence given by the applicant today, together with the documents which the Minister tendered during the course of the hearing, I have reached the conclusion that the proceedings have been commenced out of time and that it is not necessary in the interests of the administration of justice to order that the time for them to be brought be extended. 

Legislation

1. Section 477 of the Migration Act 1958 (“Act”) provides the time limits which apply to proceedings for judicial review of the decisions of the Tribunal in respect of which this Court has jurisdiction. Section 477 talks of the Court’s jurisdiction under s.476 to review migration decisions and s.5 of the Act makes it clear that the decision of the Tribunal in this instance is such a migration decision.

2. Section 477(1) provides that proceedings for review of a decision of the Tribunal must be brought within 35 days of the date of that decision. Section 477(2) provides that the Court may extend that period if:

   a)an application for that order 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 to make the order; and

   b)the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

3. Because the Tribunal’s decision was made on 1 March 2000 the time limit in these proceedings is governed by the Migration Legislation Amendment Act (No.1) 2009 which made certain amendments to s.477. The relevant transitional provision is found in cl.7 of sch.2 to the Migration Legislation Amendment Act (No.1) 2009 and it provides:

   (1) The amendments made by this Schedule apply to applications under section 477, 477A or 486A of the Migration Act 1958 made on or after the commencement of this Schedule.

   (2) If the application relates to a migration decision made before the commencement of this Schedule, for the purposes of applying sections 477, 477A and 486A of the Migration Act 1958, treat the date of the migration decision as the date of that commencement.

4. The commencement day as understood by cl.7 was 15 March 2009. As already noted, these proceedings were commenced by application filed on 17 September 2010. The effect of cl.7(1) of the Migration Legislation Amendment Act (No.1) 2009 is that s.477 in its current form applies to these proceedings. Further, as the Tribunal’s decision was made before 15 March 2009, s.477 of the Act operates as if the applicant had been notified of the Tribunal’s decision on 15 March 2009. In those circumstances, any application to this Court for a review of the Tribunal’s decision had to be filed by 20 April 2009 in order to be within time. It is apparent that the application commencing these proceedings was filed well outside the time provided by s.477 of the Act and thus consideration must turn to the question of whether time ought to be extended.

Application for extension of time

1. The first issue posed by s.477(2) is whether an application for an order extending time has been made in writing to the Court which specifies why the applicant considers that it is necessary in the interests of the administration of justice that time should be extended. That requirement has been satisfied in this case by the terms of the application filed on 17 September 2010 where the applicant expressly sought an extension of time and set out in three numbered paragraphs the reasons why he says he is entitled to that extension. Those reasons are:

   1.The applicant did not receive the decision letter from the Second Respondent.

   2.The decision of the Second Respondent is affected by a jurisdictional error.

   3.The Second Respondent failed to consider whether a law of general application had a discriminatory impact on the applicant.

2. The first criterion of a grant for relief having been satisfied, it is necessary then to consider whether the grounds which the applicant has set out in his application, coupled with his submissions today and the evidence he has given, satisfy me that it is in the interests of the administration of justice to extend time. The first question to be asked in this regard is whether the applicant has demonstrated a reasonable explanation for the delay in the commencement of the proceedings. The second question is whether the allegations made in the application have a reasonable prospect of success. In that regard, it should be noted that the grounds of the principal application are pleaded in the following terms:

   1.The Refugee Review Tribunal failed to carry out its statutory duty.

   2.The Tribunal failed to provide particulars of the information that was the reason for affirming the decision.

   3.The Tribunal failed to provide the applicant with an opportunity to comment upon it.

Does the applicant have a reasonable explanation for the delay?

1. Turning to the question of whether the applicant has given a reasonable explanation for his delay in commencing the proceedings, it should be noted that the applicant’s evidence was that the migration agent who represented him in 1999 and 2000 failed to tell him of the outcome of the proceedings before the Tribunal. His evidence was that he did not discover the outcome of his Tribunal application until approximately two months ago when, after having asked a friend to find out his current visa status, the applicant discovered that he no longer held a visa whereupon he went to the Tribunal’s offices to make inquiries. He said that he was then given a number of documents by the Tribunal, one of which was the Tribunal’s decision, and that this was the first time he had seen that decision. 

2. In cross-examination the applicant was taken to his signature on the protection visa application form which he lodged with the Minister’s department in 1999 and to his signature on the application to the Tribunal for review of the delegate’s decision. He was also taken to his signature on a letter to the Minister dated 15 April 2000 seeking a favourable exercise of the Minister’s discretion and, although not in terms, presumably the substitution of the Tribunal’s decision with one more favourable. The first paragraph of that letter sets out a brief chronology relevant to the visa application, most particularly the following:

   On 14/09/99 I applied for review of the DIMIA’s decision. However, on 01/03/00, the Tribunal affirmed the decision not to grant me a protection visa. I was asked to go to the Court or leave Australia. I do not have any money to go to the Court and I also do not want to leave Australia.

3. When the applicant was cross-examined on that passage he appeared to recognise it and certainly acknowledged it. However, he later explained that, although he recognised the chronology set out in that letter, it had never been read to him and he had in fact signed a document which had not been translated to him and whose contents he did not know. 

4. I am willing to accept that the applicant did not know until approximately two months ago that his review application to the Tribunal had been unsuccessful. However, that is not a complete answer to the Minister’s concerns regarding the delay in bringing the proceedings nor does it fully address the requirement that the applicant provide a reasonable explanation for the delay in bringing the proceedings.

5. In the months following the lodgment of the visa application in July 1999 there was a number of events.  Following the application came correspondence from the Minister’s department, the delegate’s decision, the application to the Tribunal, an invitation to the applicant inviting him to attend the Tribunal and then the letter to the Minister. At least three documents associated with that chronology were signed by the applicant and even if his migration agent had not shown him anything which was received by him from the department or from the Tribunal the applicant signed three documents within a year relating to his visa application. He has failed to explain why, after signing the last of those documents, the letter to the Minister, he then did nothing for more than ten years. 

6. It is not enough to say that the agent failed to contact him. If a person truly fears persecution in his home country, which is what the applicant’s claim is all about, then one would expect that person to be very interested in the outcome of their visa application. Accepting for the purposes of argument that the applicant’s claim for protection might be well-founded, he has not explained why, with a well-founded fear of persecution for a Convention reason, he was so unconcerned to determine whether or not he had actually been granted protection in Australia. 

7. The delay since 15 March 2009 is arguably a more relevant period for current purposes. The applicant has in effect said nothing about the delay of more than a year and a half since 15 March 2009 or given any reason why he made no inquiries of his agent or of the Tribunal or why he failed to bring these proceedings in that time.

8. For these reasons, I have concluded that the applicant has not provided a reasonable explanation for the delay in bringing the proceedings. 

Does the applicant have an arguable case?

1. Turning to whether the applicant may have an arguable case that the Tribunal’s decision is affected by jurisdictional error, which is the only basis upon which the Tribunal’s decision could be set aside and the applicant be successful in these proceedings, it should be noted that the Tribunal wrote to the applicant on 18 January 2000 stating that it had looked at all the material relating to his application but was not prepared to make a favourable decision on that information alone. It invited him to attend a Tribunal hearing to give oral evidence and present arguments in support of his claims. 

2. In his “Response to Hearing Invitation” reproduced at page 48 of the Court Book (“CB”) and date-stamped at the Tribunal on 1 February 2000, the applicant indicated that he consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. It would appear that document was not signed by the applicant and I infer it was signed by his migration agent. The signature on that form appears to be the same as the signature of the applicant’s agent which appears at CB 43, on the fourth page of the applicant’s application to the Tribunal. Whatever the case, the applicant has not suggested that there should be any concerns regarding the genuineness of that document or any reason to suppose that the Tribunal was not entitled to rely upon it. 

3. In the circumstances, the Tribunal was entitled to proceed to make a decision on the review application based on the papers before it. The Tribunal could only have set aside or varied the delegate’s decision if it had been satisfied pursuant to s.65 of the Act that the applicant met the criteria for the grant of a protection visa. In light of its letter dated 18 January 2000, the Tribunal plainly had concerns regarding the applicant’s claim for protection. It sought further information in relation to those concerns by inviting the applicant to attend a hearing. He declined to attend. In the circumstances, it is hardly surprising that the Tribunal failed to be satisfied that the applicant met the criteria for a protection visa.

4. No error has been disclosed in connection with the Tribunal’s decision to proceed to make a decision. As to the decision which the Tribunal actually made, it is not apparent that the Tribunal failed to carry out its statutory duty as is alleged. The Tribunal referred to the applicant’s claims and to the tests which it had to apply to those claims. The second and third grounds of the application raise issues relating to s.424A of the Act which have no relevance in circumstances where the applicant had failed to attend the Tribunal hearing and his review application was unsuccessful because he failed to provide substantiation of his claims.

5. In relation to the allegation that the Tribunal failed to consider whether a law of general application had a discriminatory impact on him, the applicant has not identified what law that was or why the Tribunal should have considered it.

6. The Tribunal’s decision was encapsulated in the following sentence appearing at p.4 of that decision:

   The applicant has made no specific claims under the UN Convention for Refugees. As such, the Tribunal is unable to find that the applicant will face persecution on his return to China. 

   It is for an applicant to make out his or her claim to fear persecution and if the applicant in this case declined to attend the Tribunal’s hearing in order to provide some substantiation of the claim for protection made in his visa application then that was a matter for him. I discern no error in the decision which the Tribunal reached. 

7. In the circumstances, I have concluded that the applicant does not have an arguable case for relief. 

Conclusion

1. For these reasons, I find that it is not necessary in the interests of the administration of justice to extend time to bring these proceedings.  As a consequence, the application must be dismissed. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date:  11 November 2010