E CHHUON v Minister for Immigration
[2004] FMCA 72
•27 January 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| E CHHUON v MINISTER FOR IMMIGRATION | [2004] FMCA 72 |
| MIGRATION – Review of decision of Migration Review Tribunal – application lodged out of time due to circumstances beyond Applicant’s control – summary dismissal. Migration Act 1985, s.374(1)(b) Kosi v The Minister for Immigration [2003] FMCA 340 |
| Applicant: | E CHHUON |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 1251 of 2003 |
| Delivered on: | 27 January 2004 |
| Delivered at: | Sydney |
| Hearing dates: | 26 November 2003 & 27 January 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
The Applicant appeared on her own behalf.
| Solicitor for the Respondent: | Ms Hanstein |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs of and incidental to these proceedings in the sum of $2500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 1251 of 2003
| E CHHUON |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application to review a decision by the Migration Review Tribunal not to accept the application for review lodged by the applicant. The applicant seeks a review of a decision by a delegate of the Minister not to grant her a sub-class 100 visa.
The background to this case reflects a number of unfortunate circumstances on the part of the applicant. In October 1999, the applicant was sponsored by her then fiancee to migrate to Australia from her native Cambodia for the purpose of marriage. The couple were married but were separated after a short period of time. It appears that they were separated by the 1st February 2000. The applicant says that a separation occurred because of her husband's emotional abuse and infidelity.
She provided information to the Department of Immigration, Multicultural and Indigenous Affairs, to this effect, which in due course was supported by her own mother-in-law.
The applicant made an application to reside permanently in Australia on the 19th December 2000. She consulted a migration agent located in the Sydney suburb of Fairfield, one Deth Sysengrath. He engaged in correspondence with the department on the applicant's behalf.
On the 29th September 2001, the Department of Immigration, Multicultural & Indigenous Affairs wrote to the applicant saying that her application for permanent residence was refused. A copy of that letter is set out at pages 86 and 87 of the Court Book.
The letter informed her that the sub-class 309 visa that she currently held would cease on the 20th October 2001, which is the date when she is deemed to have been notified of that decision which was 7 days after the date of the letter. She was advised that a bridging visa would then come into effect, which would be in force until the 7th November 2001. The letter advised her that she could seek a review of the decision by applying to the Migration Review Tribunal.
The letter informed her erroneously that she must lodge the application and pay the prescribed fee before close of business on the 31st October 2001. It appears that the correct date should have been 30th October 2001.
In any event, she instructed her migration agent to apply to the Migration Review Tribunal for a review of that decision. Unfortunately, the migration agent lodged the application out of time, some 2 days out of time. He subsequently wrote to her on the 20th December 2001, apologising for his error, when he said that he lodged the MRT form for her 2 days late. He said, "I accept I made a mistake. It was my first mistake. I am so sorry. If there is anything I can do for you, I'm willing to do". It was perhaps small comfort to the applicant in the circumstances.
The applicant consulted another migration agent, a firm called Parramatta Immigration Services, and one Chato Zadourin took up her case. The evidence in the court book shows that Mr Zadourin acted most energetically on the applicant's behalf, engaging in correspondence and securing various letters of support, including enlisting the support of the local Federal Member, Mrs Janice Crosio, MP.
Mr Zadourin, on behalf of the applicant, lodged a fresh application to the Migration Review Tribunal on the 19th August 2002. Mr Zadourin also provided information to the Tribunal about a variety of matters in the applicant's favour, including allegations that her father-in-law had attempted to assault her sexually on three occasions. The applicant had, in fact, consulted the police. She moved from the residence where her father-in-law was located and sought other accommodation.
Notwithstanding a lengthy correspondence between the Migration Review Tribunal and the applicant's migration agent, the second application for review was refused on the 11th June 2003. The letter of the decision dated the 11th June 2003 said, and I quote:
The Tribunal has made a decision that the application for review of your sub-class 100 visa was ineligible for the following reason. The review application was not lodged within the prescribed period for applying for review. This is a requirement of paragraph 347(1)(b) of the Migration Act 1958.
The applicant then made an application under the Judiciary Act 1903, and the Migration Act 1958, to this Court. That application was filed on the 3rd July 2003. The applicant claimed, and I quote:
That she lodged the application for review at the Migration Review Tribunal, was in the period for applying for review, but the agent misplaced her application which caused to delay her time to apply.
The particulars that she gives is that this matter was beyond her control. She did not know that her application was lodged out of time.
The particulars quoted, in fact, refer to earlier applications for review, although the application for review, which is the basis for this proceeding before me was, in fact, the later one. In my view, it is appropriate to consider the two applications are part of the one proceeding.
The respondent Minister has brought an application by way of a notice of motion seeking the proceedings be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 on the basis that:
(a)no reasonable cause of action is disclosed;
(b)the proceeding is frivolous or vexatious; or
(c)the proceeding is otherwise an abuse of process.
The respondent seeks that in the alternative to paragraph 1, the proceeding be dismissed pursuant to Order 10 Rule 2 of the Federal Court Rules on the basis that no reasonable basis for the application was disclosed.
The respondent has submitted that whilst the letter from the department contained an incorrect date by one day, it nevertheless correctly set out the applicable time frame for applying for review and thereby complies with requirements of the legislation.
The respondent says that Rule 13.10 of the Federal Magistrates Court Rules enables the court to dismiss summarily a proceeding if no reasonable cause of action is disclosed. The respondent relies for authority on Kosi v The Minister for Immigration [2003] FMCA 340. Also the decision in NALE v The Minister for Immigration [2003] FMCA 366.
The respondent, quite properly, goes on to say that an order dismissing proceedings on the basis that no reasonable cause of action is disclosed can only be made in the very clear case where there is no real question to be tried, or where the claims are clearly untenable and cannot succeed. Referring to General Steel Industries Incorporated v Commissioner for Railways (1964) 112 CLR 125, Webster and Another v Lampard (1993) 177 CLR 598, and Applicant A 163 of 2002 v The Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 677.
The respondent again quite properly refers me to the decision in Kosi (supra) where it is held that where an applicant is self represented, the Court must consider independently of the matters raised by the applicant, whether an arguable case could be made out on the material before the court.
It is appropriate for me to look at the matters raised by the applicant. The applicant is not legally represented. She has had some advice from a migration agent. The application first came before the Court for hearing on the 26th November 2003. A Cambodian interpreter had been ordered, but unfortunately no interpreter was available. The applicant did not have any legal representation but had a friend with her, who told the court that his knowledge of English was "50/50".
I took the view, and in fairness, Ms Hanstein, for the respondent, did not object, that it would not accord procedural fairness to the applicant for me to proceed with the application in light of the absence of a qualified interpreter. The applicant does not speak English very well nor does she read English.
The matter came before the Court today. The applicant is fortunate, as the court is fortunate, in having the services of a qualified interpreter. The applicant has prepared, or has had prepared for her by a migration consultant, one Danielle Myngaong, a written submission headed, "The applicant disagree of submissions on notice of motion seeking summary dismissal from the respondent".
In that submission the applicant points out that the original application for a spouse provisional temporary visa was lodged on 27 January 1999 at the Australian Embassy in Phnom Penh in Cambodia. Then it points out that the applicant's mother-in-law was approached for a statutory declaration, and she said she didn't know the whereabouts of her son. The submission points out that the applicant had provided the statutory declaration about domestic violence and the fact that she was a victim of domestic violence.
The submission refers to a variety of other correspondence, including a letter of support form Ms Janice Crosio MP. The submission points out the explanation for the failure to lodge the application with the MRT in time, and the apology by the migration agent, who was acting for her at the time that the original application for review was lodged, but lodged out of time.
The submission points out the applicant has no knowledge of Australian migration law, and depended on legal advice, and unfortunately has had to face a variety of problems, which have happened to her, without her control. She asks for a review by the Federal Magistrates Court.
It is clearly the duty of the Court in a situation where the applicant is not legally represented to consider whether the applicant has an arguable case. The respondent submits that it is inevitable that the present application will fail. It is conceded that the application to the Tribunal was not made within the permissible time frame and does not meet the conditions imposed by section 347(1)(b) of the Migration Act. Accordingly, there is no discretion in the Tribunal to treat the application as a valid application.
This has been set out by decisions of the Federal Court in the decision in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 305, which is a Full Court decision.
In paragraphs 40 and 41 of the decision of the Honourable Justice Madgwick reference is made to a situation where if it became clear that the application was out of time, it would be futile for the matter to be remitted to the MRT, even if a case for remitter was otherwise made out, for the MRT to determine whether the application was validly made.
In Yu v The Minister for Immigration, Multicultural and Indigenous Affairs ( 2002) FCA 912, a decision of the Honourable Justice Emmett, it again was made clear that there was no discretion to deal with an application out of time. Accordingly, it would be futile to refer the matter to the Tribunal when the Tribunal has no power to accept an application out of time. Accordingly, the applicant's case in Yu, as in the case before me, has no real prospects of success. Failure to comply with a time limit is an absolute failure.
In the decision in Yu (supra) , His Honour said that:
One must feel sympathy for an applicant who loses the right of review in such circumstances.
I am certain of the view that the applicant in this case seems to have been badly treated by her original migration agent, but the application was not lodged within the time set out in section 347(1)(b) which is set out in Regulation 4.10 of the Migration Regulations.
There is no power in the Tribunal to extend the time to lodge an application. Accordingly, there is no purpose in remitting the matter to the Migration Review Tribunal to reconsider, as there is nothing to reconsider and I am not satisfied that there has been shown any error by the Tribunal.
It is a matter of some concern that a migration agent makes such a serious error, which has such devastating consequences on the applicant. It is also clear that the applicant has been not well treated by her former husband, and indeed, I have evidence, by her former husband's father, as well.
The consequences to her are serious but regrettably they are beyond the power of this Court to remedy. It follows that the application must be dismissed.
Costs
There is an application by the respondent that the applicant should pay the respondent's legal costs. The respondent Minister seeks the sum of $4000, and points out that the application has had to be heard on two separate occasions.
I note that the reason for the adjournment on the first occasion was through no fault of the applicant. The Court had ordered the services of an interpreter for her, but one did not arrive.
The applicant has not been represented by a lawyer and her income is derived from a special benefit. I infer that she does not have the funds to be legally represented.
I have not made a finding that her application was frivolous or vexatious because I believe that it was not. It certainly was an application that could not succeed, but it was an application brought almost out of desperation as the applicant seemed to have no other avenue for relief.
In this instance, as in the entire circumstances of this unfortunate case, the applicant does not appear to have done anything wrong. Her misfortunes appear to be largely due to matters beyond her control.
I am satisfied that she does not have the immediate reserve of funds that would enable her to meet a large costs order.
In all the circumstances, I propose to make an order for costs but to make a significant reduction in the amount that can be sought.
It is for these reasons that I make the Orders set out at the commencement of this decision.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 11th February 2004
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