SZAJB v Minister for Immigration
[2004] FMCA 86
•20 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAJB v MINISTER FOR IMMIGRATION | [2004] FMCA 86 |
| MIGRATION – Review of RRT decision – where applicant did not attend Tribunal hearing – where applicant’s migration agent’s registration was cancelled – where Tribunal wrote to migration agent asking whether they would continue to be the authorised recipient – where Tribunal wrote to applicant asking him to provide any details of his new authorised recipient/adviser – whether applicant had been denied procedural fairness due to negligence of migration agent – where there was no evidence of what advice was given to the applicant by the migration agent – whether an adjournment to allow the applicant to obtain further documents was appropriate. |
M172 v The Minister [2004] FMCA 23
B41 of 2003 [2004] FCA 30
R v Home Secretary; Ex parte Al-Nehdawi (1990) 1 AC 876
| Applicant: | SZAJB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 540 of 2003 |
| Delivered on: | 20 February 2004 |
| Delivered at: | Sydney |
| Hearing date: | 20 February 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in Person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
The applicant pay the respondent's costs which I assess in the sum of $3,500.00 pursuant to Part 21 Rule 21.2(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 540 of 2003
| SZAJB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter is a citizen of Pakistan. He arrived in Australia as a visitor in February 2001 and applied for a Protection (Class XA) Visa on 20 March 2001. On 26 April 2001 a letter was written to the applicant by the Department advising him that the Delegate of the Minister had declined to grant him a Protection Visa and on or about 29 May 2001 he made an application through a migration agent for review of that decision.
The applicant claimed to have a well-founded fear of persecution for the Convention reason of political opinion. In two statements the first of which was placed before the Delegate and both of which were placed before the Tribunal [CB 24-25] and [CB 40-41] he stated that he was a member of the Pakistan Muslim League and was involved in political activity through that organisation. He claimed that on 20 September 1999 three members of a security force arrived at his home and forced themselves in, asking for him. He handed himself into the police and an army officer who arrested him at gunpoint under a false charge. He was taken to the police station, interrogated and threatened with his life. He was told they had no case against him, but he had been arrested merely because of his support for the Muslim League. He claims he was assaulted and threatened with a knife and unless he changed his political opinion he should prepare for his last breath.
The applicant was about to sign a recantation when there was a bomb blast about 100 metres away and this enabled him to escape. He hid until in October 1999 his father obtained an employment visa for him for Brunei where he remained until 10 February 2001 when he returned to Pakistan. Shortly after arrival he was recognised by an army officer and he ran away. He stated that his home had been ransacked by army officers thereafter, so he escaped into Australia, a country for which he had obtained a visa whilst in Brunei.
The applicant did not appear at the hearing which had been scheduled by the Tribunal to consider his case and the Tribunal then proceeded to consider the matter on the evidence before it in accordance with the provisions of section 426A of the Migration Act. The Tribunal in its decision noted that the applicant had provided only the broadest outline of his claims and had provided no details of his activities as a supporter of the PML, beyond a reference to having written leaflets whilst at college. The Tribunal noted that he had provided no corroborating evidence from the PML.
The Tribunal commented that despite the political coup that had taken place in Pakistan, political parties had not been banned and that its country information indicated that the PML continued to function. The Tribunal pointed out that the applicant's claim of having been arrested on 20 September 1999 was at a time when the PML was still in government in Pakistan and the Tribunal wondered how he could have been a wanted man, merely because of his support for what was then the government party. The Tribunal noted that the applicant had managed to leave Pakistan on his own passport, return again in February 2001 and leave without being detected. The Tribunal considered this was inconsistent with the claim that he was a high profile and wanted activist.
The Tribunal stated:
“These are all matters which it would have been possible to discuss at a hearing before the Tribunal, but as referred to above the applicant did not respond to the letter inviting him to come to a hearing. I am unable to be satisfied on the evidence before me that the applicant had a high political profile as a member of the PML in Pakistan as he claims. That he was arrested because of his support for the PML in September 1999 as he claims, or that there is a real chance that, if he returns to Pakistan now or in the reasonably foreseeable future, he will be persecuted by reason of his political opinion.”
In the applicant's notice of appeal and affidavit in support there appears a rehearsal of the applicant's claims and then the following:
19. I was refused on grounds that I didn't provide sufficient evidences.
20.I applied for Refugee Review Tribunal.
21.I provided all evidence to my migration agent.
22.My migration agent misled and didn't provide to RRT.
23.My migration agent even didn't provide me about hearing date.
23.My migration agent's licence was cancelled and I couldn't seek any legal assistance from any of places where I could seek legal assistance.
The facts as revealed by the Court book are that on 18 April 2002 the migration agent was advised that her registration had been cancelled see [CB 43]. I note in passing that the letter written to the migration agent appears to contain a rather interesting paradox. It says:
“ It has recently come to the Tribunal's attention that the Migration Agent's Registration Authority has taken action to cancel your registration as a migration agent.
The Tribunal's records show that you are the adviser in relation to the following review applications [a number of names are referred to including that of the applicant]
In the light of the cancellation of your registration will you please respond to this letter by letting the Tribunal know whether you continue to act as an adviser for these applicants. Please also advise whether you intend to continue as their Authorised Recipient for the receipt of correspondence.”
I am not sufficiently familiar with the provisions of the various Acts and regulations relating to the registration of migration agents but I am bemused by the fact that after an agent's registration has been cancelled that person still seems to be able to act as an adviser and to be the authorised recipient for the receipt of correspondence.
In any event, on 2 August 2002, a letter was sent to this particular applicant by the Tribunal telling him that his agent had had her registration cancelled and:
“ We are writing to you to ask whether you have made any change or wish to make any change to your adviser and/or your authorised recipient. Will you please complete the enclosed form if you wish to cancel your nomination of Ms X as your authorised recipient. If you cancel Ms X as your authorised recipient and/or adviser you may nominate another authorised recipient and/or adviser.
If you do not reply to this letter all correspondence will continue to be sent to Ms X.”
I pause there only to note that there would seem to be little point in cancelling someone's registration if they are allowed to continue to be the authorised recipient and adviser, and the applicants are so told.
On 3 September 2002, the applicant wrote to the Tribunal and told them that he had changed his address. On 23 December 2002, the Tribunal wrote to the applicant appointing a day for the hearing of his application. That date was 27 February 2003. The applicant did not attend. The applicant has not told me that he had further changed his address, and in fact, it would appear that he must have received the notice because he said to me:
“ I did not go to the hearing because I was told by a few people if you go there you will be caught.”
The applicant's other complaint about the migration agent related to his statements. However, as Mr White points out, the two statements to which I have already referred were both signed at the bottom of each page by the applicant and can therefore be taken to be his work.
The question of the extent to which an applicant may have not received procedural fairness, or the Tribunal otherwise might have fallen into jurisdictional error, as a result of an applicant's migration adviser’s negligence was considered recently by the Chief Federal Magistrate in M172 v The Minister [2004] FMCA 23 and by Dowsett J in B41 of 2003 [2004] FCA 30. The Chief Federal Magistrate pointed out that in Australia the concentration of the courts is upon the procedures at the Tribunal. Both decisions made reference to the case of R v Home Secretary; Ex parte Al-Nehdawi (1990) 1 AC 876. In B41 at [25] his Honour says:
“The prosecutor did not point to any authority in support of his assertion that a party who, acting on advice does not appear in the Tribunal, may later complain that such action led to his not being heard. I have been unable to find any such support. AL-Nehdawi and the two Victorian decisions are to the contrary. The Chief Justice's observation in Hot Holdings Pty Ltd v Creasy and Others (2002) (210CLR438 at [22]) and the apparent approval by the full court in Barrett v The Minister (1989) 18 ALD 129 at 133 of the extract from the Court of Appeal decision in AL-Nehdawi may suggest that the decision of the House of Lords in that case should be treated with caution. Nonetheless, the outcome is consistent with general principles and good policy. In my view, the prosecutor cannot complain that his actions, taken in reliance upon the advice received from his immigration adviser, led to his being denied procedural fairness. In any event, it is far from clear that the advice was other than appropriate in the circumstances.”
It seems to me clear that in this particular case it would be difficult to establish any fault on the part of the migration agent. Firstly because I have not been provided with any evidence of what she may have told the applicant, and secondly because it was made quite clear to him some months before the hearing that a hearing was to take place and the date, time and place of it were given to him. It would appear that his decision not to attend was not influenced by what the migration agent may or may not have done, but by the quite obviously poor advice of "a few people".
When the applicant appeared before me today he appeared to be seeking an adjournment for approximately six months so that he could collect documents. I assume he was referring to the corroborative documents discussed by the Tribunal. The applicant has already had years in which such documents could have been collected, but more to the point there would have been nothing I could have done with them. They were not in evidence before the Tribunal and it is the decision of the Tribunal and the evidence which was before it that I am being asked to review. I declined to give the applicant any adjournment on that ground.
In all the circumstances, it seems to me that there are no grounds upon which this decision can be reviewed. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $3,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate’s Court Rules.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM
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