Applicant VAAZ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 247

FEDERAL COURT OF AUSTRALIA

Applicant VAAZ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 247

APPLICANT VAAZ OF 2002  -v-  MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

V 66 of 2002

RYAN J

7 MARCH 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 66 of 2002

BETWEEN:	APPLICANT VAAZ of 2002 Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent
JUDGE:	RYAN J
DATE OF ORDER:	7 MARCH 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS :

1.THAT the respondent’s motion on notice dated 13 February 2002 be allowed and the application be dismissed.

2.        THAT the applicant pay the respondent’s costs, to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 66 of 2002

BETWEEN:	APPLICANT VAAZ of 2002 Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent

JUDGE:	RYAN J
DATE:	7 MARCH 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 19 September last year the present applicant, together with four of his compatriots, applied for an interlocutory injunction to restrain his removal from Australia pending the hearing of an application to the Refugee Review Tribunal (“the Tribunal”) for a review of the refusal of the grant to the applicant of a protection visa.  It then appeared that a notice of the refusal of the visa had been sent to the applicant at Unit 5, 2 Davidson Street, South Yarra.  Evidence was given through an interpreter by Mr Proniuk, one of the other applicants, that all the applicants had been staying at that address with a Mr Eugene Kravitz who claimed to be an employee or agent of the immigration agents, Immicon. 

2. Evidence was given that Kravitz had assisted the applicants, including the present applicant, in applying for protection visas and had undertaken to lodge the necessary applications with the Tribunal to review the refusals of those visas.  However, the applicants later lost contact with Kravitz with whom Immicon disavowed any continuing connection.  In the event, no application for review had been lodged with the Tribunal by 19 September last year.  At the conclusion of the hearing on that date, I ruled as follows:

   “In these matters it seems clear that each of these applicants has been misled or at least not properly represented by one Kravitz to whom they entrusted their applications for protection visas.  Whether Kravitz was at all times, or at any time, an employee or agent of Immicon Immigration Consultants, a licensed migration agent, is not clear.  What is clear is that the only applications authentically lodged by Immicon were those on behalf of Mr Proniuk and Mr Vlakh.  The delegate's refusal of all five applications was conveyed to the applicants by Kravitz who, it appears, lived with the applicants for a short time at Flat 5, 2 Davidson Street, South Yarra. 

   The applicants say that Kravitz undertook to pursue applications for review by the Refugee Review Tribunal of each refusal.  No such application for review was ever lodged.  As a result, there is no judicially reviewable decision within the meaning of s 475 of the Migration Act which is what is required to confer jurisdiction on this Court.  Accordingly, I cannot accord to any of the applicants any relief in respect of their projected deportation from Australia or otherwise. 

   It has been indicated this morning by Ms Haigh, who appeared for the Minister, that the circumstances revealed by these applications have been referred to the police for investigation.  Whether that investigation discloses considerations which may prompt the exercise within the Department of some other administrative discretion will be a matter for those in whom the discretion is reposed.  What is clear, as I have already said, is that no relief is available in this Court.  In each matter, therefore, the objection to competency must be upheld and the application dismissed. 

3. Notwithstanding that dismissal of his application, the present applicant did procure a consideration of his case by the Tribunal by applying for review on the ground of “relief from the consequences of fraud”, the fraud relied on being that of Kravitz.  That consideration occurred on 15 November 2001 when the Tribunal held that it lacked jurisdiction to review the decision refusing to grant the visa.  The applicant now seeks a review of the decision of the Tribunal and the respondent Minister has filed a notice of motion seeking the summary dismissal of the application to this Court. 

4. When the application was last before the Court on 18 February this year the applicants suggested that two of his compatriots, whom I mentioned at the outset of these reasons, Mr Proniuk and Mr Vlakh, had procured a consideration by the Tribunal of the merits of their claims.  I adjourned the hearing to enable that suggestion to be investigated.  An affidavit has since been filed on behalf of the Minister in which the deponent, Ms Drew, has sworn;

   “I am informed of the following matters which I believe to be true;

   (1)Mr Ginardi Proniuk lodged an application in the Refugee Review Tribunal on 19 September 2001 seeking review of a decision made by a delegate of the respondent to refuse him a protection visa.  No determination of the Tribunal's jurisdiction to consider the application had been made before the application to the Tribunal was withdrawn on 6 December 2001, Mr Proniuk having departed Australia on 28 November 2001.  Now shown to me and marked HMD1 is a printout of the electronic records held by the department in regard to Mr Proniuk;

   (2)Mr Andre Vlakh lodged an application in the Refugee Review Tribunal on 19 September 2001 seeking review of a decision made by a delegate of the respondent to refuse him a protection visa.  As yet, no determination has been made of the Tribunal's jurisdiction to consider the application.  Now shown to me and marked HMD2 is a printout of the electronic records held by the department in relation to Mr Vlakh.”

5. The substance of that affidavit has today been conveyed to the applicant through an interpreter.  He has been unable to contradict the assertions contained in it but points out that Mr Proniuk was forced to depart Australia because of concern about the unexplained death of his father-in-law.  A decision by the Tribunal in Mr Vlakh's case is expected to be given, the applicant says, tomorrow, 8 March.  The applicant has urged that arrangements should be made for him to be afforded legal assistance to prosecute his claim for review of the Tribunal's decision.  However, for reasons which I have earlier explained, I consider that he has no hope, even with legal assistance, of demonstrating any error by the Tribunal.  If it is relevant at all, I consider that Mr Vlakh's prospects of obtaining a review on the merits of his claim are equally hopeless.  I therefore decline to invoke in this case the Court's mechanisms for pro bono legal assistance. 

6. For the reasons which I earlier gave, the Minister’s motion for summary dismissal of the application must be upheld.  In addition, it seems that the present application for review of the Tribunal's decision of 16 November 2001 is itself out of time, not having been lodged with 28 days of the notification of the Tribunal's decision.  It was in fact lodged on 4 February 2002.  For all of these reasons the Minister's motion will be allowed.  The application will be dismissed with costs.  

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:             7 March 2002

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	Ms J Davis
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 March 2002
Date of Judgment:	7 March 2002