MZZJW v Minister for Immigration

[2013] FCCA 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZJW v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2014

Catchwords:
MIGRATION – Applicant seeking judicial review of decision of delegate – court having no jurisdiction to hear claim – application facing other difficulties – application dismissed. 

Legislation:  
Migration Act 1958 (Cth)

Applicant: MZZJW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 553 of 2013

Judgment of: Judge Burchardt

Hearing date: 18 November 2013

Date of Last Submission: 18 November 2013

Delivered at: Melbourne

Delivered on: 18 November 2013

REPRESENTATION

The Applicant: No appearance

Counsel for the First Respondent: Ms Randall-Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

3. The Applicant pay the First Respondents’ costs fixed in the sum of $1,000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 553 of 2013

MZZJW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. These reasons for judgment will be transcribed and forwarded to the parties as soon as possible. 

2. The applicant has filed an application on 26 April 2013.  In that application, the applicant seeks that a decision of a delegate of the Minister made on 30 November 2010 be reviewed.  There is an application for an extension of time, and the grounds of application are

   1.Fraud by ex-agents and lawyer;

   2.Being persecuted because of sexual orientation;

   3.Partner had real fear of being harmed because of the relationship. 

3. The applicant filed an affidavit in support on the same date, 26 April 2013.  Relevantly the affidavit details the decision of the delegate of the Minister, to which I have already referred, and asserts that that refused an application made on 15 October 2010 for the grant of a Protection (class XA) visa.  

4. The affidavit goes on to say, and I quote:

   “4.    My ex agents San Wong and Miss Sunny Qian of Queen St Melbourne of Sydney acted in a negligent and fraudulent manner by inserting false address and materials in respect of my PV application.  As a result, the Delegate to the Minister made wrong and incorrect decision on my application. 

   5.    I was informed of the Delegate’s decision to refuse to grant by the agent. 

   6.    I was not able to appeal the decision to the RRT because I was not notified of the Delegate’s decision to refuse me the visa. 

   7.    I am not willing to return to Malaysia because I have genuine fear of being persecuted and harmed.  There is real risk of me being treated in a degrading manner due to my sexual orientation and I would not be able to earn a living as normal person due to the persecutorial circumstances in Malaysia.  The Malaysia state will not protect me.”

5. The matter was the subject of orders made by consent in Chambers before Registrar Caporale on 3 July 2013.  Plainly, these were consented to by the applicant, who must have indicated her agreement to them, and the only order that the Court made was that the application for review be subject to the show cause hearing before me today at 10.15 am.  The applicant was called shortly after 10.15 am, but did not appear.  She was called again shortly before Court about 10.50 am and did not appear and in the circumstances, the Court has proceeded to deal with the matter in her absence. 

6. Doing the best I can with the applicant’s extremely limited materials, it would seem, and I am putting the most favourable construction upon the materials that is available to her, that her agents, whether they are based in Melbourne or Sydney or both, in some fashion put a wrong address in the materials addressed to the Minister.  As a result not only did the delegate make a wrong and incorrect decision, but it would seem that one would infer that the applicant was not advised of the delegate’s rejection of her application as indicated in the affidavit on 30 November 2010 until such time as she was out of time to reply to the Refugee Review Tribunal. 

7. What the applicant’s affidavit does not explain is when she was actually advised of the delegate’s decision, nor does it explain why she did not apply to the Refugee Review Tribunal for an extension of time, nor does she give any details as to how long it has been for her to wait, so to speak, from finding out about the delegate’s decision until the application was filed in this Court, nor is there any explanation for any delay which I infer must, surely, have occurred.

8. Counsel for the Minister correctly points out that there is no jurisdiction in this Court to entertain applications for judicial review of a delegate’s decision.  Such applications are only valid when made in respect of decisions of the Refugee Review Tribunal.  That alone stands as an insuperable barrier to the application, even if I overlook the question of any extension of time.  Furthermore, and in any event, the applicant does not articulate beyond the issues as to the extension of time, what false materials were put forward by the agents such as to mislead the delegate’s conclusions and, as it were, vitiate that result. 

9. Putting the matter shortly, there is simply nothing in the materials that would enable the Court to form a view that the delegate fell into any error in any event, not least because the delegate’s decision is not before the Court.  Disaggregating the matter the best I can, first, there is no jurisdiction to entertain this application.  Second, even if there was, the applicant’s materials are completely deficient as to the question of the extension of time which would certainly be required and nothing is put forward in any meaningful sense that would suggest that the delegate erred in any event. 

10. Those latter marks are, of course, irrelevant as the Court has no jurisdiction anyway.  They just go to paint the overall picture which is that this application faces insuperable difficulties.  I am going to dismiss the application with costs, so I order that the Minister’s name be changed in the usual way, I dismiss the application, and of course, this being a show cause application, it is an interlocutory decision. 

RECORDED  :  NOT TRANSCRIBED

1. So applicant to pay the first respondent’s costs, fixed at $1,000. 

RECORDED  :  NOT TRANSCRIBED

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Associate: 

Date:  5 December 2013