SZAKT v Minister for Immigration
[2007] FMCA 25
•18 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAKT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 25 |
| MIGRATION – Interlocutory relief − application for reinstatement − where application previously dismissed for non-attendance − where considerable delay in bringing the application for reinstatement − where the applicant is an infant − where the applicant’s father had been misled by his migration agent − whether the applicant satisfactorily explained the reasons for the delay − whether the application has a reasonable prospect of success. |
| Migration Act 1958, ss.426A, 424A Federal Magistrates Court Rules 2001 Rule 13.3A(c) |
| MZWQH v Minister for Immigration [2005] FCA 1491 Applicant M67/2003 v Minister for Immigration [2006] FCA 76 SAAP v Minister for Immigration (2005) HCA 24 |
| Applicant: | SZAKT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG643 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 17 January 2007 |
| Date of Last Submission: | 17 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 18 January 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitors for the Applicant: | Parish Patience |
| Solicitors for the Respondents: | Mr J. Wright Sparke Helmore |
ORDERS
Order dismissing proceedings made on 2 April 2004 vacated.
Substantive application to be heard on a date to be fixed.
Respondents’ costs of the motion reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG643 of 2003
| SZAKT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me an application brought by way of notice of motion to set aside an order made pursuant to Rule 13.3A(c) of the Federal Magistrates Court Rules 2001 on 2 April 2004. The order dismissed an application for judicial review of a decision of the Refugee Review Tribunal made by the applicant who at the time was under two years of age.
Background
The infant applicant was born on 24 August 2002 to parents both of whom were applicants for protection visas. Those applications had been dismissed by a delegate for the Minister under reference number CLS1999/5588 and by the Refugee Review Tribunal under reference number RRT99030586 before the applicant was born. The applicant through his father filed his own application on 28 August 2002, some four days after his birth. The application was refused on 11 October 2002. On 31 October 2002 the applicant through his father filed an application for review with the Refugee Review Tribunal. In section C of that application form, found at [CB33], he nominated Zahirul Hoq Mollah as his authorised recipient. Mr Mollah was a migration agent who the applicant’s father has deposed to having told him that he was also a solicitor. The Tribunal wrote to the applicant’s father at his home inviting him to a hearing on 5 December 2002. The applicant’s father completed the response to hearing invitation indicating that he would attend. On 16 January 2003, the hearing date originally proposed was changed to 3 March 2003 by way of a letter to the applicant’s father. The applicant’s father did not attend the hearing on 3 March and the Tribunal proceeded to deal with the matter on the basis of s.426A. The Tribunal determined to affirm the decision of the delegate on 10 March 2003 and handed that decision down on 1 April 2003.
The applicant’s father, who gave evidence before me, deposed to the fact that he had asked Mr Mollah whether he should attend before the Tribunal and Mr Mollah had said there was no necessity for him to do so, that the result would be the same whether he did or not. The applicant’s father accepted that advice and that was the reason he did not attend.
The applicant’s father became aware that the application had been refused by the Refugee Review Tribunal and filed with this court an application for judicial review. He attended a directions hearing. He signed consent orders giving the date of the hearing of the case as
2 April 2004. He deposes that he again sought advice from Mr Mollah and Mr Mollah told him that he was unlikely to succeed and therefore there was no necessity for him to attend. The applicant did not attend and I dismissed the application pursuant to Part 13.3A(c) of the Federal Magistrates Court Rules.
The applicant’s father deposes to the fact that he was not immediately aware of the decision. Some months after the decision he tried to get in touch with Mr Mollah, but he could not. In an affidavit sworn by
Mr Patel the reason for this is indicated. Mr Mollah found himself in difficulties with the Migration Agents Authority and had his registration cancelled. He lodged an appeal against that decision to the AAT on 24 June 2005 and then withdrew the appeal on 28 October 2005. The applicant’s father deposes that approximately three months ago he took advice from another migration agent who in turn referred to him to the solicitors and counsel who now represent him and who made this application on his behalf. In the meantime, the applicant’s father had also made another application to the Refugee Review Tribunal to review again the decision of the delegate. The Tribunal in a decision dated 16 November 2005 determined that it had no jurisdiction to deal with the application.
It must be borne in mind that the notice of motion before me is a notice of motion to determine whether or not I should set aside the dismissal of the application for judicial review and allow the application to be heard. I am not hearing the application itself. There are two essential elements to consider when making a decision of this type. The first is whether the applicant has satisfactorily explained the reasons for his delay, and the second is whether there is any utility in allowing the application which there would not be if the application itself was bound to fail. I heard argument on both points:
Prospects of success
It is not necessary in an interlocutory application of this type to show that the applicant would succeed, only that there is a reasonably arguable case. The test was set out by Kenny J in MZWQH v Minister for Immigration [2005] FCA 1491 in circumstances where an application in this court was dismissed for non-attendance, and where the application for review of that decision was considerably delayed:
“[27]…even if there is a valid and legitimate reason for the delay, the application for an extension of time must still be refused if the appeal would have no or very slight prospects of success: see Gallo v Dawson (No 2) (1992) 109 ALR 319.
…
[29] When considering the application for reinstatement, the Federal Magistrate required the applicant to demonstrate a satisfactory reason for failing to appear and that he had an arguable underlying case. This was the correct test: see e.g. MZKAJ v Minister for Immigration [2005] FCA 1066 at [18] per North J.”
See also Applicant M67/2003 v Minister for Immigration [2006] FCA 76 at [13].
I am satisfied that the substantive case for the applicant is one which should be argued. In its findings and reasons at [CB50]-[51] the Tribunal said:
“A decision dated 11 March 2002 (N99/30586) by the Tribunal, differently constituted, considered the claims of the applicant’s parents and found that they did not have a well founded fear of persecution. The applicant father claimed to have been a prominent member of the Freedom Party and that his family home was ransacked and his family members injured in February 2002 by members or former members of the Awami League protected by the BNP. The Tribunal found that it could not be satisfied as to the credibility of the applicants and therefore could not be satisfied that the applicant father had the association with the Freedom Party that he claimed. Further it found no independent evidence to support his claim that current or former members of the Freedom Party have had any problems with the BNP (which has historically had good relations with the Freedom party) since the BNP regained government in 2001. The presently constituted Tribunal has considered the evidence presented to the Tribunal that considered the applicant’s parents’ claims, and is satisfied that the Tribunal had considered those claims made the correct decision. The Tribunal has had no fresh evidence placed before it, nor has it found any additional evidence, that would lead it to have any doubts as to the correctness of the applicant’s parents’ decision. In the light of the applicant’s parents not having a well-founded fear of persecution should they return to Bangladesh, the Tribunal finds no reason as to why the applicant has a well founded fear of persecution should he travel to Bangladesh.”
The applicant argues that in taking into account the reasons for the decision in the parents’ case without providing the applicant with the appropriate notice under s.424A(1) Migration Act 1958 (the “Act”) the Tribunal fell into jurisdictional error: SAAP v Minister for Immigration (2005) HCA 24. I appreciate that the respondent argues that the decision of the Tribunal in the parents’ case was a matter placed before the child’s Tribunal by the applicant himself. But to decide this fact would be to decide the whole case and there were raised in the hearing before me a number of arguments as to why the views expressed by the respondent might be correct and an equal number of arguments as to why it may not be. This tends me to the view that, subject to the question of my discretion on the matter of delay, the applicant has satisfied me there is a sufficiently arguable case for this matter to be reopened.
Delay
The delay in this case was considerable. Accepting as I do that the applicant was misled by his migration agent, there is still the question of why no steps were taken to find out what the decision of the court might have been. The applicant’s father’s evidence is that when he failed to get through to Mr Mollah there was little more that he could do because he did not understand English very well and he had no money to employ another agent or a solicitor. He did not do that, but he made the application to the Tribunal which was dismissed as incompetent and included the son’s name amongst the applicants. If the applicant in this case had not been an infant, I would have been persuaded I should exercise my discretion against re-opening the case even though it is clearly arguable that a jurisdictional error has occurred and there would be a distinct advantage to an applicant to have the case reconsidered by the Tribunal at a time when the political situation in Bangladesh is so precarious. But the applicant is an infant and entirely dependent on his father for his application. It would be wrong to visit the sins of the father upon the child when his allegation is that his life might be in danger if he returns to Bangladesh.
I would therefore allow the notice of motion and set aside the orders which I made on 2 April 2004. The applicant’s case shall be set down for hearing on a date to be fixed.
In the light of the very long delay occasioned by the actions of the applicant’s litigation guardian who would be responsible for paying any costs awarded against the applicant I am disinclined to make the usual order for costs in this interlocutory motion. Whilst it is not appropriate that the respondent should pay the applicant’s costs I think the respondents’ costs should be reserved so that the court might consider whether they should be paid in the event that the applicant is unsuccessful in the substantive hearing.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM.
Associate:
Date:
6
2