SZDDJ v Minister for Immigration
[2005] FMCA 173
•9 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDDJ v MINISTER FOR IMMIGRATION | [2005] FMCA 173 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.36(2), 91X, 417
Judiciary Act 1903 (Cth), s.39B
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZDDJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG909 of 2004 |
| Delivered on: | 9 March 2005 |
| Delivered at: | Sydney |
| Hearing date: | 21 February 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG909 of 2004
| SZDDJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 27 April 2000 and handed down on 11 May 2000, affirming the decision of the delegate of the respondent (“the delegate”) made on 13 October 1998 to refuse to grant the applicant a protection visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZDDJ”.
The applicant, who is a citizen of Jordan, arrived in Australia on
24 February 1998. On 2 October 1998 he applied to the Department of Immigration & Multicultural Affairs (“the Department”) for a protection visa under the Act. On 13 October 1998 the delegate refused to grant a protection visa and on 16 November 1998 the applicant lodged an application for a review of the delegate’s decision with the Tribunal.
The applicant attended the Tribunal hearing on 15 March 2000. At the hearing the applicant indicated he would be leaving Australia briefly to attend his father’s funeral. The Tribunal was subsequently advised that the applicant had received a ten day visa to attend his father’s funeral in Saudi Arabia. The Departmental movement records indicated that the applicant left Australia on 18 March 2000. On 3 April 2000 the Tribunal wrote to the applicant at his last known address advising that its records showed he was not in Australia and could therefore not be granted a protection visa. The applicant was invited to comment on the information and advise the Tribunal if the information before it was incorrect. The applicant was advised that if he did not contact the Tribunal by 24 April 2000 the Tribunal may finalise the matter without taking any further steps to contact him again. The Tribunal was advised on 6 April 2000 by a friend of the applicant, who forwarded a fax from the applicant to the Department, that the applicant was unable to return within the designated period of the visa and was seeking an extension of that visa. No further advice was received from the applicant or his friend.
The Tribunal contacted the Department on 26 April 2000 and was advised that the applicant’s visa would not be extended as he had failed to comply with its conditions. Accordingly, the Tribunal proceeded to make its decision on the basis of the information before it (Background information from Tribunal’s decision Court Book (“CB”) p.69).
The Tribunal’s findings and reasons
In the Tribunal’s decision under the heading “Reasons for decision” the Tribunal stated it was satisfied from the circumstances set out in the background material that the applicant was not in Australia. The applicant, therefore, did not satisfy the requirements of s.36(2) of the Act and could not be granted a protection visa. As a result of this decision, the Tribunal felt it was not necessary to consider whether the applicant was a person to whom Australia had protection obligations under the Refugee Convention.
Application for review of the Tribunal’s decision
On 29 March 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903. As a result of an interlocutory hearing and a Notice of Objection to Competency heard on 19 November 2004 before me the applicant was directed to file an amended application by 7 December 2004. This order was complied with and the amended application contained the following grounds:
“1.On 15 March 2000, the applicant attended the hearing at RRT by himself and without legal representative because he discovered that he was misled by his appointed migration consultant, consequently he was not aware about the process of the RRT and the legal system involved in this process, during the hearing he asked the tribunal member Ms Patricia Leehy, that he would like to leave Australia for emergency circumstances and he has no idea how to do it, Mr Leehy advised and direct him but she did not warned him that if he could not return to Australia within a specific time, RRT might refuse his application relying on the fact that the applicant might not be in Australia at the time of the decision, the RRT’s failure to explain this point clearly to the applicant, taking into consideration that ‘he attended the hearing by himself and without any legal representative to explain the legal system’ constituted a jurisdictional error.
2.Based on the direction and advice by RRT, on 15 March 2000, the applicant granted Bridging visa B which permits him to travel and re-enter Australia according to his application which was lodged on 15 March 2000 at onshore protection department NSW by himself. The department did not warn the applicant that if he overstayed the visa overseas, he could not extend the visa overseas under any circumstances, and therefore if he is waiting any decision for his visa application, this application will be refused because he is not in Australia at the time of the decision. Besides, the applicant was given an information to read: Advice to persons granted Bridging B visa, as well as Bridging Visas (Form 1024i) and Visa Application (Form 1025i), but none of them mentioned the point that if he overstayed the visa overseas, it is impossible for him to extend it and return to Australia, if any of abovementioned sources clearly explained this point, the applicant would count the risk factors and cancelled his trip since he believe that he has a genuine case before RRT, and this case was proven by granting his partner the protection visa and the citizenship. In this manner, the department misled the applicant or negligently failed to inform the applicant of a matter about which it should have informed the applicant, in these circumstances, the RRT was estopped from relying on the fact that the applicant was not in Australia at the time it made its decision. The Tribunal’s failure to abide by the estoppel constituted a jurisdictional error.
3.On 3 April 2000 the RRT wrote to the applicant. On 6 April 2000 the applicant, through a friend, provided information to the RRT about his current situation. The RRT did not write to the applicant again seeking further information from him prior to making its decision. Despite the applicant was hopping to return to Australia on 27 April 2000, according to indications which was given to him by Australian mission overseas and he mentioned that to the RRT in his fax, but the RRT made its decision on 26 April2000. If the RRT had written again to the applicant, the applicant may have been able to negotiate a solution with RRT or return to Australia prior to the RRT making a decision if he was given several more days. In these circumstances, the RRT’s failure to write to the applicant again seeking further information, or giving him more time to return to Australia constituted a jurisdictional error.” (Errors in original)
Applicant’s submissions
The applicant appeared self represented with the aid of an interpreter. However, the applicant was fluent in English and addressed the Court from the bar table without relying on the interpreter to make his submissions. Prior to the hearing the applicant filed and served the legal submissions which are set out as follows:
“1.The applicant came to Australia on 1 July 1998 seeking peace and protection from his partner’s family and part of his family, not for financial purposes or any thing else, since he was a factory manager for six years with full privileges and does not need to seek a better life.
2.The applicant was a victim in Jordan due to old tradition, barbaric, reactionism and retardations, and unfortunately he is a victim here in Australia because he was misled by the people who apply the system (as in item 5) and the other people who instructed him at the beginning like his ex-migration consultant who misled, and cheated him (as in item 3).
3.On 15 March 2000, the applicant attended the hearing at RRT by himself and without legal representative because he discovered that he was misled by his appointed migration consultant, consequently he was not aware about the process of the RRT and the legal system involved in this process, during the hearing he asked the tribunal member, that he would like to leave Australia for emergency circumstances and he has no idea how to do it, the tribunal member, advised and directed him but she did not warned him that if he could not return to Australia within a specific time, RRT might refuse his application relying on the fact that the applicant might not be in Australia at the time of the decision, the RRT’s failure to explain this point clearly to the applicant, taking into consideration that ‘he attended the hearing by himself without any legal representative to explain him the legal system’ constituted a jurisdictional error.
4.On 3 April 2000 the RRT wrote to the applicant. On 6 April 2000, the applicant through a friend, provided information to the RRT about his current situation. The RRT did not write to the applicant again seeking further information from him prior to making its decision. Despite the applicant was hopping to return to Australia on 27 April 2000, according to the indications which was given to him by Australian mission overseas and he mentioned that to the RRT in his fax, but the RRT made its decision on 26 April 2000. If the RRT had written again to the applicant, the applicant may have been able to negotiate a solution with RRT or return to Australia prior to the RRT making a decision if he was given several more days. Bearing in mind the RRT is an independent merits review tribunal and its main work based on 1951 UN Convention Relating to the Status of Refugees, this Convention based on human right and treating all cases in human way as it is specified at RRT main policy ‘quote First Page’
The Tribunal has an obligation to provide a mechanism of review that is fair, just, economical, informal and quick. Unlike a court, the tribunal is not adversarial. DIMIA is not unusually represented at Tribunal hearings. The Tribunal is inquisitorial in nature and can obtain whatever information it considers necessary to conduct the review. It is not bound by technicalities, legal forms or rules of evidence but must act according to substantial justice and the merits of the case.
Hence, the applicant do believe that, the RRT could be fair and just if it would offer him some more time to rectify his status and therefore the RRT’s decision could be based on the applicant claims and evidences. In these circumstances, the RRT’s failure to write to the applicant again seeking further information, or giving him more time to return to Australia and comply with its main policy and role constituted a jurisdictional error.
5. Based on the direction and advice by RRT, on 15 March 2000, the applicant granted Bridging visa B which permits him to travel and re-enter Australia according to his application which was lodged on 15 March 2000 at onshore protection department NSW by himself. The department did not warn the applicant that if he overstayed the visa overseas, he could not extend the visa overseas under any circumstances, and therefore if he is waiting any decision for his visa application, this application will be refused because he is not in Australia at the time of the decision. Besides, the applicant was given an information to read: Advice to persons granted Bridging B visa, as well as Bridging Visas (Form 1024i) and Visa Application (Form 1025i) (Now it is form 1006) and these forms are enclosed with this submission, but none of them mentioned the point that if he overstayed the visa overseas, it is impossible for him to extend it and return to Australia, if any of abovementioned sources clearly explained this point, the applicant would count the risk factors and cancelled his trip since he believe that he has a genuine case before RRT, and this case was proven by granting his partner the protection visa and the Australian citizenship. In this manner, the department misled the applicant or negligently failed to inform the applicant of a matter about which it should have informed the applicant, in these circumstances, the RRT was estopped from relying on the fact that the applicant was not in Australia at the time it made its decision. The Tribunal’s failure to abide by the estoppel constituted a jurisdictional error.” (Errors in original)
In oral submissions the applicant emphasised to the Court that when he was granted his Bridging Visa B by the Department, that although it contained the statement “You must return to Australia on or before this date”, it did not advise him that his failure to return by the specified date would be detrimental to the outcome of his proceedings before the Tribunal and that he would be denied any further visas. The substantial part of the applicant’s submissions were based on the Department’s failure to draw this matter to the applicant’s attention and to emphasise the importance of his return to Australia by the specified date.
Respondent’s submissions
Mr S Lloyd of Counsel, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)The visa was refused because the Tribunal had evidence that the applicant was outside of Australia at the time of its decision. This is not in dispute. He had no apparent authority lawfully to return to Australia. In the circumstances, the applicant was held to be ineligible because the applicant did not comply with s.36(2) of the Act, which prescribes as one condition for the grant of protection visa that the applicant be in Australia.
b)The applicant has not filed any admissible evidence:
i)When the applicant was granted a bridging visa to leave Australia, he was notified that it would remain in effect only “until 30 March 2000. You should return to Australia on or before this date.” (CB p.58)
ii)The applicant has not even asserted that anyone positively misled him about his capacity to return to Australia.
c)The applicant claimed he was not told that his visa could not be extended. Even if this were true, neither the Department nor the Tribunal were under an obligation to advise him of this (in fact visas generally cannot be extended).
d)Even if the Department were under a duty to advise the applicant, that could not set up any estoppel against the Tribunal. More specifically, it could not affect the applicable statutory criteria for a protection visa.
e)Given that the applicant was outside the country and had no right to return, there was no basis for the Tribunal to delay making its decision. (Even if the applicant had had a right to return that would not reveal any jurisdictional error on the part of the Tribunal.)
f)In the end, the applicant was responsible for seeking his own advice on visas. He was not misinformed by anyone. He may have acted upon his false assumption that he could extend the length of his bridging visa but that appears to be contrary to express advice by the Department.
g)It may also be observed that the applicant has not explained his delay in bringing the present proceedings. This provides a discretionary ground also to refuse relief.
Applicant’s reply
At the end of the applicant’s reply, he indicated that his partner (de facto wife) had been granted a protection visa and had become an Australian citizen. The applicant claimed that her application was based on identical circumstances as to those of himself. He also stated that the only reason his application had failed was that he had departed from Australia to attend his father’s funeral and because of his inability to return by the expiry date of his visa, the Tribunal had found against him due to his absence from Australia and he was therefore ineligible for a further visa extension.
At that time a completely new issue was raised before the Court in that the applicant claimed he had entered Australia on a separate occasion and lodged a protection visa application which was subsequently granted. Further, the applicant had in his possession a decision of the Tribunal, differently constituted and of a different date, which handled this application. The Tribunal on that occasion remitted the application for re-consideration to the delegate with a direction that the applicant was a person to whom Australia had protection obligations under the Refugees Convention. This decision was handed down on 27 June 2002.
Application of 2002
In response to this matter being raised, the respondent Counsel tendered to the Court three documents to assist the Court in understanding the nature of this application and the subsequent decisions associated with that visa application. The documents were as follows:
a)a letter from Simon Jeans & Associates, Solicitors and Migration Agents, dated 21 October 2003;
b)a statutory declaration of the applicant (in a different name) sworn on 21 October 2003 and
c)The Tribunal’s decision published on 3 June 2002 and handed down on 27 June 2002.
In brief, these documents disclosed that the applicant, under a completely different identity, entered Australia allegedly as a citizen of Guyana. A substantial amount of the details in respect of the applicant differed in these documentation from those submitted in the original application where it was indicated the applicant was a citizen of Jordan.
The statutory declaration, which was set out in 75 paragraph points, sets out the details of the circumstances in which the applicant entered Australia on the first occasion and the reasons leading up to his arrival in Australia. The statutory declaration also disclosed the circumstances of his departure from Australia, allegedly to attend his father’s funeral in Saudi Arabia. These circumstances were significantly different from the material contained in the original visa application and in the other documents contained in the Court Book which were the subject of these proceedings. The circumstances of the applicant’s partner were also disclosed in that statutory declaration.
On the advice of his Solicitors, Simon Jeans & Associates, the applicant instructed his solicitors to withdraw his application for a protection visa on the grounds of the material contained in the statutory declaration dated 21 October 2003. In the letter the applicant indicated he intended to lodge an appeal to the Minister to remain in Australia on humanitarian grounds under s.417 of the Act.
Reasons
The application before this Court related to an appeal against the decision of the Tribunal made on 27 April 2000. Although the decision of the Tribunal made on 3 June 2002 was introduced, this Court did not have before it sufficient evidence or material linking the matters nor were they pleaded in the current proceedings. They did explain some issues which were raised at the bar table in a form of a plea of support for the applicant’s submissions. However, I did not believe they could be introduced at this stage or in this manner to support the applicant’s claim as to any form of legitimate support of his pleaded application. The other problem facing the Court was that the applicant was a self represented litigant who has had the assistance of legal representation at various times. The applicant appeared before me at the hearing without the assistance of a legal adviser. Consequently, the Court was under the obligation to independently consider whether any arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. I believed the issue before the Court, in effect, was quite limited in its scope in that any references made in respect of any failure by the Department to adequately warn the applicant or alternatively bring to his attention the strict requirements of the visa regime was a remedy that should be pursued in separate proceedings from those before this Court. The sole issue to be considered was whether the Tribunal, in its deliberations, was infected by jurisdictional error.
During the applicant’s appearance before the Tribunal at the oral hearing on 15 March 2000, when the applicant advised the Tribunal member that he had to travel overseas because of compassionate reasons due to the recent death of his father, the Tribunal member correctly advised the applicant that this was a matter that should be referred to the Department and it was not an issue that the Tribunal could address. This immediately removed from the deliberations in this Court the issue that anyone within the Tribunal structure misled the applicant in any aspect in relation to the issue, operation or rules of the bridging visa. The question as to whether evidence in a proper form had been filed and served within these proceedings was not at issue and the question of estoppel that may flow from any misdirection in respect of this, was also not relevant.
The decision that the Tribunal member had to make which was the subject of these proceedings was a straightforward application of the statutory provisions of the Act. The applicant did not satisfy the requirements of s.36(2) of the Act and consequently could not be granted a protection visa. The question of discretion did not arise in the application of this section of the Act.
Conclusion
For the reasons set out above, I have not been able to identify any ground that the Tribunal committed any jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 9 March 2005
0