SZTDM v Minister for Immigration & Anor
[2013] FCCA 1130
•7 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTDM v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1130 |
| Catchwords: PRACTICE & PROCEDURE – Application for interlocutory injunction – relevant considerations. |
| Legislation: Migration Act 1958, ss.417, 424A, 477 |
| Applicant: | SZTDM |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Applicant: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1777 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 7 August 2013 |
| Date of Last Submission: | 7 August 2013 |
| Delivered at: | Sydney |
| Delivered on: | 7 August 2013 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
In the event that a transcript of these proceedings is prepared, the applicant’s name, wherever appearing, be deleted and replaced with the pseudonym appearing in the Court record.
Until 5pm on 26 August 2013, the first respondent, officers of the first respondent’s department and agents of the first respondent or his department be restrained from removing the applicant from Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1777 of 2013
| SZTDM |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China. His application for an Australian protection visa was refused by a delegate of the first respondent (“Minister”) on 16 August 2011. The applicant subsequently applied to the second respondent (“Tribunal”) for a review of that departmental decision but, on 14 June 2012, the Tribunal decided to affirm the decision. The applicant is presently in immigration detention at Villawood Immigration Detention Centre. On 31 July 2013 he filed an application in this Court seeking judicial review of the Tribunal’s decision.
Yesterday, the Minister’s solicitors wrote to the applicant advising him that he would be deported on Friday, i.e., two days hence, notwithstanding the fact that he had proceedings pending before the Court. Yesterday, the applicant filed an interlocutory application seeking an injunction restraining the Minister from deporting him until at least the first return date of the principal application, 26 August 2013. The Minister opposes that application for injunctive relief.
The particulars of the applicant’s claims are summarised at para.190 of the Tribunal’s decision and I need not set them out here. The Tribunal found that the applicant was not a credible witness. It concluded that objective evidence did not support his claim to be a follower of the underground Roman Catholic Church in China or to have been involved in the Roman Catholic Church in Australia for reasons other than to support his application for a protection visa. The Tribunal did not find the two witnesses whom the applicant brought to the final Tribunal hearing to be persuasive on the question of the genuineness of his claimed religious beliefs. The documents which the applicant claimed had come from China were accorded little weight or their authenticity doubted by the Tribunal. In summary, the Tribunal did not accept the applicant’s claims that he had a well-founded fear of persecution in China by reason of his religion.
In his initiating application, the applicant alleged:
1.The Tribunal failed to take into account the following important facts:
a.My biological brother was granted with Protection Visa based on the fact my family members are all Catholics and were persecuted by the Chinese Authority.
b.Without solid evidence, the Tribunal drew the conclusion that the documentations in support of my claims are fraudulent and refused to accept the information in relation to the persecution my family facing in China is credible.
2.The Tribunal failed to assess my application for a Protection Visa in accordance with s424A of the migration Act.
3.The Tribunal presumed my claim to be a Catholic adherent was not genuine only because my theological understanding and knowledge about Catholicism did not meet her standards.
The applicant’s principal application was filed out of time. In support of his application for an extension of time, the applicant alleged:
1.Firstly, my previous migration agent initially agreed to lodge the application for judicial review for me without charging additional fee, but she went back to her words and demanded me to make additional payment to her, However, at that time, my family members including my brother, my mother and myself were in extreme financial hardship. I had no choice to postpone the appeal.
2.On top of that, I was trying to approach the Legal Aid for free legal service but my application for the grant was not successful.
3.Lastly, when RRT made its decision in June, 2012, I was in a de facto relationship with an Australian citizen for a period of three month and planning to take out an application for a spouse visa once we had lived for 12 months. Unfortunately, our relationship did not work out due to her infidelity.
In support of his application for an injunction, the applicant reiterated his claim to fear persecution in China.
In order to succeed in the application for an injunction, the applicant needs to show, first, that there is a serious question to be tried; secondly, that he is likely to suffer injury for which damages are not an adequate remedy should his application for an injunction be refused; and thirdly, that the balance of convenience favours the granting of the injunction sought. Given the nature of the proceedings, I accept that damages would not be an adequate alternative remedy to an injunction if the applicant were to be entitled to the substantive relief he seeks.
Serious question to be tried
Extension of time
Turning to the question of whether there is a serious question to be tried, as already noted, the principal application was filed out of time. The fundamental question, therefore, is whether time for bringing the proceedings should be extended, thereby enlivening the Court’s jurisdiction to deal with the substantive dispute. That, in turn, requires the Court to determine whether it would be in the interests of the administration of justice to extend time under s.477 of the Migration Act 1958 (“Act”). The considerations relevant to deciding that issue are not confined but in the present case, only two considerations appear to be relevant. The first of these is whether the applicant has provided a satisfactory explanation for the delay in commencing the proceedings. The second issue is whether the principal claim has reasonable prospects of success.
Satisfactory explanation for delay
In the initiating application, the applicant said that the reasons for the delay in commencing the proceedings were that his previous migration agent failed to assist him, that legal aid declined to support the proceedings and that he had planned to seek a partner visa but his relationship with a particular woman ended before that could happen.
In his evidence, the applicant said that after the Tribunal rendered its decision, he spoke to his migration agent and determined that he could not afford to pursue judicial review proceedings. He said that in the following period, he made representations to the Minister requesting him to exercise his discretion under s.417 of the Act to substitute a decision more favourable to him than the one made by the Tribunal. He further said that because his applications to the Minister for discretionary relief were unsuccessful, he decided to stay illegally. He also gave evidence concerning having been in a relationship which he hoped would end in marriage and which would support an application for a spouse visa. He said that the relationship ended.
I am not entirely convinced by the Minister’s submissions that if an applicant makes a diligent application to the Minister for s.417 relief this must lead to a conclusion that a consequential delay lacks a satisfactory explanation. However, it is not necessary for me to deal with this issue further as the burden of the applicant’s evidence, relevantly, was that once he had been unsuccessful in his representations to the Minister, he decided, essentially, to go underground. A conscious decision to not pursue rights of judicial review must lead to a conclusion that there is no satisfactory explanation for the delay. This is particularly so when the applicant admitted in his evidence that if it had not been for the fact that he was placed in detention that he would not have commenced these proceedings.
Reasonable prospects of success
In deciding whether the substantive application has reasonable prospects of success in having the Tribunal’s decision set aside, I must base my decision on the case put by the applicant based on the application he has filed.
In the first ground of the application, the applicant alleged that the Tribunal failed to take certain important facts into account. The first of those was that a protection visa had been granted to his brother on essentially the same grounds the applicant has relied on. The second was that the Tribunal concluded without evidence that the documents he had filed in support of his claim were fraudulent and refused to accept:
…the information in relation to the persecution my family faced in China is credible.
Contrary to this allegation, the Tribunal did take into account the fact that the applicant’s brother had been successful in obtaining a protection visa. This was referred to in the Tribunal’s summary of the evidence before it and also in the Tribunal’s reasons for its decision at para.197 of its decision record. In relation to the documents, in paras.198 and 199 of its reasons, the Tribunal set out the basis upon which it declined to accept their genuineness. For these reasons, the first ground of the application would not, in my view, be made out.
The second ground of the application alleged that the Tribunal breached s.424A of the Act. This allegation is unparticularised and thus lacks meaningful substance. Even so, a review of the Tribunal’s decision does not support a conclusion that it was based on information which fell within s.424A(1) of the Act, and which, therefore, had to be given to the applicant. For that reason I am not satisfied that the second ground of the application would be made out.
The third ground of the application raises a potential issue concerning whether the Tribunal applied an arbitrary standard of religious knowledge which the applicant had to satisfy before the Tribunal would accept his claim to be a genuine Roman Catholic Christian. The relevant finding made by the Tribunal is set out in para.193 of its decision record.
The principal reasons given by the Tribunal for declining to accept that the applicant was a genuine Roman Catholic Christian were his ignorance of World Youth Day in Sydney in 2008, the fact that he went to a “big” Catholic Church near St James in Sydney, next to Elizabeth Street, but did not know its name and the fact that he provided the Tribunal with photographs of himself standing outside St Mary’s Cathedral but apparently never went in, or at least not for mass. The Tribunal went on to say that those findings were reinforced by the applicant’s ignorance of the identity of John the Baptist, notwithstanding his claims to comparatively long-term religious observance.
The Tribunal did not rely, when concluding that the applicant was not a genuine Roman Catholic, on doctrinal issues but rather on more prosaic aspects of the applicant’s ignorance of matters which it might be presumed he would have known. For that reason the third ground of the application would not be made out.
Consequently, I am of the view that the applicant has failed to demonstrate that the principal application would have reasonable prospects of success.
Although I might be incorrect, I understood the Minister’s submissions to imply that the reasons given by the applicant for delay were so unmeritorious that even if some merit were found in the substantive application, the application for an extension of time ought not be granted. Should I have correctly understood the Minister’s submissions to be of that effect, I do not agree with them. The discretionary nature of the decision reposed in the court, namely, whether it is in the interests of the administration of justice to extend time, indicates to me that in a case where the principal application has merit, justice would require that that consideration be given priority over the question of delay, subject to any prejudice which might be suffered by the Minister were time to be extended.
In those circumstances, I find that the applicant has not demonstrated a serious question to be tried because the Court would not extend time in the substantive matter as it is currently pleaded and thus would have no jurisdiction to consider it.
Balance of convenience
The remaining matter to be decided is whether the balance of convenience favours the granting of the injunction sought. I admit to being very concerned that the entirety of the applicant’s application to this Court is unmeritorious and that the balance of convenience would not support the injunction which he seeks. However, it is commonplace in this Court that initiating applications filed by applicants are amended and that more substantial allegations are made than are made in the first document filed by an applicant. This is generally the result of applicants who seek review of Tribunal decisions in the Sydney registry of the Court being afforded some free legal advice at the Minister’s expense. The applicant has not, it seems, received any legal advice as a result of the legal advice scheme administered by the Minister’s department and, until he has had an opportunity to receive that advice, I feel that the balance of convenience favours the granting of the injunction sought.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Cameron.
Associate:
Date: 20 August 2013
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