SZQAF v Minister for Immigration - [2011] FMCA 207

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQAF v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 207

MIGRATION – Application for review of RRT decision – applicant seeking injunction to restrain Minister from removing applicant – where application for review out of time.

Migration Act 1958 (Cth), ss.424A, 477

Minister for Immigration v SZMDS [2010] HCA 16
SZFDE v Minister for Immigration [2007] HCA 35
SZOQJ v Minister for Immigration [2011] FCA 191

Applicant:

SZQAF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 447 of 2011

Judgment of:

Raphael FM

Hearing date:

14 March 2011

Date of Last Submission:

14 March 2011

Delivered at:

Sydney

Delivered on:

14 March 2011

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is refused.
Applicant to pay the First Respondent’s costs assessed in the sum of $500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 447 of 2011

SZQAF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

There comes before me this morning an urgent application filed today by an applicant who tells me that he is about to be deported from Villawood to Malaysia. The form which he has completed as an application to this Court does not specifically request an injunction to restrain the Minister’s action but I assume that this is what the applicant wishes.
The only documents that I have are this application and a copy of the decision of the Refugee Review Tribunal in respect of which the applicant seeks judicial review. The decision itself was made on 4 November 2010. No previous application to this Court has been made. As s.477 of the Migration Act 1958 (Cth) (the “Act”) requires an application to be made to this Court within 35 days of a decision, the application which comes before me today is out of time. However, the 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 application which is before me today does not comply with the requirements of subsection 2(a) but nonetheless I have determined to consider the matter on the basis that some application of the type required has been made.
In order to consider whether or not I should grant the injunction that I believe I am requested to grant, I should first consider whether or not there is any possibility that I might exercise my discretion under s.477(2). In order to do this I have considered the decision of the Tribunal.
The grounds upon which the applicant claims to be a person to whom Australia owes protection obligations are said to arise out of a relationship which he had with a Muslim lady in Malaysia. Putting the applicant’s claims at their highest, he says that he commenced an association with this young lady who he considered marrying. In order to marry her he would have to convert to Islam because he is currently a Hindu Tamil. The young lady has brothers who he says were intent on looking after her interests. It appears that after a while he began to fear that the young lady’s interest in him was more financial than sentimental. He indicated to her and her family that he was reluctant to change his religion. The young lady complained to the mosque. The applicant told that people from the mosque later came and took him and detained him in a room. They kept him in and tortured him. They accused him of raping the woman. The brother said that no one would now want to marry her. The applicant managed to escape from the mosque but had to seek help from a mental hospital because of his state.
The applicant believed that if he returned to Malaysia the woman’s family would find him and attack him, although it had been quite some months since the incidents which he spoke about had taken place before he came to Australia, and in that time he had not been further troubled by the woman’s relations. The applicant told the Tribunal that if he did return to Malaysia he would not contact the lady and he would not wish to marry her.
Two matters about the Tribunal hearing should be noted. The first is that during the course of the hearing the applicant displayed characteristics which concerned the Tribunal to such an extent that it adjourned the hearing so that the applicant could have a psychiatric examination. This was carried out at Villawood. The psychiatrist reported to the Tribunal that he believed that the applicant was capable of understanding the process and of participating in it. The Tribunal therefore determined to continue with the hearing at a later date but before it did this it sent the applicant a letter under s.424A of the Act:
“While the information contained in the Tribunal’s correspondence related to the applicant’s own evidence and fell within an exception of section 424A, the Tribunal sought through that correspondence to address any difficulty that the applicant may have had in presenting his case. In response, the applicant stated through his representative that he had the capacity to give evidence and present arguments with respect to the issues arising on review. No objections to the course adopted by the Tribunal were made by the applicant’s representatives and the Tribunal notes that the applicant has been able to instruct his two representatives. Overall, the Tribunal has satisfied itself that the applicant has been given a genuine opportunity to give evidence and present arguments.” [71] [CB 17].
At [74] of the Tribunal decision it explains a number of significant inconsistencies and deficiencies in the applicant’s evidence. Based upon these, the Tribunal at [78] rejects the applicant’s claims. It did not accept that the applicant left Malaysia to avoid harm or that he would be of any interest to any of the people referred to should he return. The Tribunal did not accept that the applicant would be forced to marry the young lady or forced to convert to Islam should he return to Malaysia:
“The Tribunal rejects the entirety of the applicant’s claims and finds that these have been fabricated for the purposes of his protection visa. The Tribunal finds that there is no real chance that the applicant will face persecution as a result of the events he described with respect to the young lady.” [78] [CB 19].
The second matter of importance is that the applicant appears to have had two representatives, both of whom were legally trained. The first representative, I am told by Ms Rayment for the Minister, was the Legal Aid Commission of New South Wales. The applicant was not satisfied with this representation. He claimed that the solicitor appointed did not take down all the details of his story. The applicant made a complaint and the Legal Aid Commission ceased to act but ensured that he was then represented by an independent firm. The Tribunal was satisfied that this representative put to it all the matters that concern the applicant:
“The applicant was assisted in his application by a highly competent and experienced representative. The Tribunal does not accept that the applicant’s first representative failed accurately and fully to recall the applicant’s claims.”[76] [CB 18].
I am satisfied that from a reading of the Tribunal decision record that the views to which it came concerning the applicant’s credibility were views that were open to it upon the evidence that had been provided. They were neither illogical, nor irrational, nor unreasonable; Minister for Immigration v SZMDS [2010] HCA 16.
When the applicant came before me today by telephone, he spoke at some length about problems that he had had with his lawyers. Although nothing he said appeared to me to bring the matter within the purview of those cases such as SZFDE v Minister for Immigration [2007] HCA 35, I am satisfied that in any event the matters to which he referred were matters that were considered by the Tribunal itself, in other words, they were not new when they came before me today. It appeared to me that the complaints made by the applicant were complaints against his first legal representatives which had already been explained to the Tribunal and to a great extent alleviated by the appointment of the second representatives.
Having taken all of these matters into account, I am unable to see that there would be any reasonable prospects of success if the applicant had brought a valid application to this Court seeking judicial review of the Tribunal’s decision. In those circumstances, even if the applicant had explained convincingly why his application for review had been delayed, I would not have considered it to be in the interests of justice for me to extend the time under s.477(2). This being the case, I am not prepared to grant the applicant an injunction to restrain his deportation whilst an application of this type is filed. There is no point in it.
It remains only to advise the applicant that as Foster J held in SZOQJ v Minister for Immigration [2011] FCA 191 there is no appeal against this decision. I dismiss the application. I order that the applicant pay the first respondent’s costs which, at the request of Ms Rayment, I assess in the sum of $500.00.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 30 March 2011