SZDDJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 837

FEDERAL COURT OF AUSTRALIA

SZDDJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 837

MIGRATION – application for protection visa – two applications filed by same person using different identities – two Tribunal decisions – appeal in respect of first Tribunal decision – where appellant not in Australia at time of first Tribunal decision

Migration Act 1958 (Cth) s 36(2)

SZDDJ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 453 of 2005

BRANSON J
24 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 453 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDDJ APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	24 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs. 

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 453 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDDJ APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	24 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The respondent to this appeal from a judgment of the Federal Magistrates Court applied on 3 June 2005 for the appeal to be summarily dismissed.  The application, which was made pursuant to a notice of motion filed on 16 May 2005, was made on three bases.  The respondent contended that the appeal should be dismissed:

   (a)pursuant to s 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth) on the ground that the appellant has failed to comply with a direction of the Court that he file and serve an amended notice of appeal setting out proper grounds of appeal fully particularised by 10 May 2005;

   (b)pursuant to O 52 r 13(2) of the Federal Court Rules on the grounds that the appellant has failed to file a notice of appeal that states the grounds relied upon in support of the appeal; and

   (c)in the exercise of the Court’s discretion on the ground that the appellant, after the date of the decision of the Refugee Review Tribunal (‘the Tribunal’) that was reviewed by the Federal Magistrates Court, lodged an application for a protection visa that was favourably reviewed by the Tribunal but subsequently withdrawn by the appellant.

2. The appellant appeared on 3 June 2005 without legal representation.  He wished to oppose the respondent’s application for summary dismissal by putting to the Court his submissions in support of his appeal.  After some discussion with the parties, and with their agreement, I decided to hear the respondent’s application and the appellant’s appeal together on that day.

   BACKGROUND FACTS

3. The circumstances surrounding this appeal are singular.  I attempt to summarise them in the following paragraphs.

4. The appellant entered Australia on 2 July 1998 on a Jordanian passport as the holder of a Subclass 456 Business (Short Stay) visa.  On 2 October 1998 the appellant applied for a protection visa with the assistance of a migration agent.  In that application he indicated that he was an ethnic Palestinian, a Muslim and a citizen of Jordan.  He sought protection in Australia so that he did not have to return to Jordan.  He claimed to fear persecution in Jordan at the hands of the Jordanian Secret Intelligence because he was suspected of being involved in the assassination of a Jordanian diplomat in Ankara, Turkey, where he had been studying.  The application is open to be understood to claim additionally a fear of persecution because the Jordanian Secret Intelligence had been told that he was a member of a liberal Islamic party.  Additionally the application refers to his having experienced discrimination because of being Palestinian.  He also claimed to have been forced to divorce his wife because his in‑laws feared for her life after he experienced threats of violence from a powerful and well‑connected individual who he had reported to the police for theft.

5. A delegate of the respondent on 13 October 1998 refused to grant the appellant a protection visa.  The delegate accepted the claims made by the appellant but concluded that his fears flowing from the assassination and his Palestinian ethnicity were not well‑founded and that his fears relating to the powerful individual were not Convention‑related.

6. The appellant sought review of the delegate’s decision by the Tribunal.  In his application for review he stated that he disagreed with the decision of the delegate because the decision was not made with an open mind really looking into his circumstances.  He asserted:

   ‘I have stated the full truth and expect the Tribunal to accept my claims now.’

7. The appellant attended a Tribunal hearing on 15 March 2000.  The reasons for decision of the Tribunal record that he advised the Tribunal at the hearing that he would be leaving Australia briefly to attend his father’s funeral and that the Tribunal was subsequently advised that he had received a ten‑day visa for his father’s funeral in Saudi Arabia.  The book of documents provided to the Federal Magistrates Court includes a copy facsimile message, purportedly from the appellant’s nephew, advising the appellant of his father’s death in Saudi Arabia and planned funeral in Jordan.  The Tribunal’s reference to a funeral in Saudi Arabia may simply be a slip.

8. On 15 March 2000 the appellant lodged an application for a bridging visa B, which permitted him to travel and re‑enter Australia, and his application was granted that same day.  The letter advising the appellant of the grant of the bridging visa stated:

   ‘You have permission to travel and re‑enter Australia for the period specified on the visa label.  This bridging visa will remain in effect until 30 March 2000.  You should return to Australia on or before this date.’  (emphasis in original)

9. The reasons for decision of the Tribunal, on review of the decision of the delegate of 13 October 1998, reveal that the Tribunal’s decision was made on 27 April 2000 and handed down on 11 May 2000.  On 3 April 2000 the Tribunal had written to the appellant at his last known address advising that its records showed that he was not in Australia and could not be granted a protection visa.  The letter advised the appellant that if he did not contact the Tribunal by 24 April 2000 the Tribunal might finalise the matter without contacting him again.  On 6 April 2000 a friend of the appellant provided to the Tribunal a copy of a fax that the appellant had sent to the Department of Immigration & Multicultural & Indigenous Affairs (‘DIMIA’).  The fax disclosed that the appellant was seeking to extend his bridging visa.  The Tribunal heard nothing further from the appellant or his friend before its decision was handed down. 

10. The Tribunal’s reasons for decision record:

    ‘Section 36(2) of the Act provides that “a criterion for a protection visa is that the applicant for the visa is a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”.  The effect of this provision is that a protection visa may only be granted if the applicant is in Australia.

    The Tribunal is satisfied from the circumstances set out above that the applicant is not in Australia. Therefore the applicant does not satisfy the requirements of s 36(2) of the Act, and cannot be granted a protection visa.

    Having reached this conclusion, it is not necessary to consider whether the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.’

11. The present appeal is an appeal from a decision of the Federal Magistrates Court which dismissed the appellant’s application for judicial review of the decision of the Tribunal handed down on 11 May 2000. The Federal Magistrate dismissed the application on the ground that the appellant did not satisfy the requirements of s 36(2) of the Migration Act 1958 (Cth) (‘the Act’) and therefore could not be granted a protection visa.

12. Notwithstanding that the appellant remained outside Australia for a longer period than that for which his bridging visa allowed it is plain that he has re‑entered Australia.  The circumstances of his re‑entry are able to be identified by reference to another set of written reasons for decision of the Tribunal, namely written reasons for decision in respect of a decision of the Tribunal handed down on 27 June 2002.  That decision purportedly relates to an applicant for a protection visa with a name similar to that of the appellant.  This applicant claimed to be a Christian citizen of Guyana who arrived in Australia on 20 August 2000.  He applied for a protection visa on 3 October 2000.  He asserted that he feared persecution in Guyana because of his membership of, and activities with, a named political party.  The claims were supported by a detailed statement concerning the applicant’s life and experiences in Guyana.  The Tribunal accepted the claims and history advanced by this applicant and remitted his matter for reconsideration with a direction that he was a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (‘the Refugee Convention’).

13. The respondent has placed before the Court a copy letter on the letterhead of Simon Jeans & Associates, Solicitors and Migration Agents.  The letter is addressed to DIMIA and states:

    ‘We act [sic] have been instructed to act for [name deleted] in relation to his application for a Protection Visa, lodged on 3 October 2000.

    We are instructed by [name deleted] to withdraw his visa application. Please find enclosed a signed letter of withdrawal from [name deleted]. Also enclosed, by way of explanation, is a statutory declaration by [name deleted], dated 21 October 2003.

    [name deleted] intends to lodge an appeal with the Minister for Immigration and Multicultural and Indigenous Affairs to remain in Australia on humanitarian grounds under section 417 of the Migration Act 1958.

    Should you have any questions or wish to discuss this matter further, please do not hesitate to contact the writer.’

    The statutory declaration referred to in the letter is in the name of the appellant.  The statutory declaration sets out a long history of matrimonial and family difficulties experienced by the deponent in Jordan.  I am satisfied that it was the appellant who applied for a protection visa on 3 October 2000 (see [12] above).

14. The content of the statutory declaration of the appellant is inconsistent with the claims advanced by him in support of the protection visa application made by him on 2 October 1998 – except perhaps in respect of his fear concerning the powerful individual.  The statutory declaration asserts that after arriving in Australia on 2 July 1998 the appellant sought to extend his visa and was eventually advised to apply for a protection visa.  In [39] of the statutory declaration the appellant states:

    ‘Of course I couldn’t mention the real cause of my fear in my claim at that time ….’

15. At [43]‑[45] of the statutory declaration the appellant asserts that the reason why he wished to return to Jordan at about the date of the Tribunal hearing was because his de facto wife was in hospital as a result of being seriously beaten by her former husband.  No mention is made in the statutory declaration of the appellant’s father having died.  Paragraphs [46]‑[48] read as follows:

    ‘I was told by a woman by the name of Mary Kairouz, that if the result of the RRT was negative, she will help use her contacts outside Australia to grant me a new citizenship and a new passport of a different nationality to come back to Australia, but this will cost me few thousand dollars.

    After the RRT hearing, I went back to Jordan in March full of worries about the situation of [the appellant’s de facto wife] and my future in Australia.  I hid there as usual and I saw [the appellant’s de facto wife’s] son and kept in contact daily with [the appellant’s de facto wife] on the phone, waiting for any chance to see her.  During this time Mary Kairouz in Australia rang me and told me that my application was rejected by the Refugee Review Tribunal.  I had given her the key to my post office box.  She said she was willing to go ahead with her offer and she would prepare all the contacts if I wish to do it.

    After a week of thinking and trying to find another home without any result I rang Mary Kairouz again and told her that I am willing to take her offer.  She arranged her contacts and called me to tell me how to apply to visit Guyana.  I received a visa to visit Guyana and I arranged for the trip with hesitation and fear.’

16. The statutory declaration goes on to explain how the appellant obtained citizenship of Guyana and how he obtained details of a story told by a citizen of Guyana who had successfully obtained recognition as a refugee in the United States of America.

17. I assume that if the appellant has made an application to the Minister under s 417 of the Act that application has not been successful. As mentioned above, he now seeks to appeal from the decision of the Federal Magistrates Court whereby his application for judicial review of the decision of the Tribunal was refused because he was not in Australia. He wishes to have the decision of the Tribunal set aside so that he may present a fresh claim to be entitled to a protection visa; a claim, as I assume, that will be consistent with the content of his statutory declaration but, of course, inconsistent with the stories told by him on his two previous applications for a protection visa.

    PURPORTED GROUNDS OF APPEAL

18. The original notice of appeal filed by the appellant stated the following in the portion of the form provided for grounds of appeal:

    ‘Discuss, Argue all relevant evidences, legal grounds and List of authorities regarding this case.’

19. On 19 April 2005 I made a number of directions on this appeal including a direction that the appellant file and serve an amended notice of appeal setting out proper grounds of appeal fully particularised by 10 May 2005.

20. On 10 May 2005 the appellant filed an amended notice of appeal.  The notice contains three alleged grounds of appeal against the decision of the Federal Magistrate.  By the first ground the appellant asserts that during his Tribunal hearing he asked the Tribunal member how he could leave Australia in emergency circumstances and the Tribunal member advised and directed him but did not warn him that if he could not return to Australia within a specified time the Tribunal might refuse his application relying on the fact that he was not in Australia.  Even if the appellant is able to establish the truth of his assertion that the Tribunal member did not explain clearly to him the need to return to Australia before the Tribunal made its decision, this would not affect the jurisdiction of the Tribunal to make a decision on the appellant’s application for review of the decision of the delegate of the respondent.

21. The second alleged ground of appeal complains of the Tribunal not writing again to the appellant after it received information from his friend on 6 April 2000.  The ground asserts that if the Tribunal had written again to the appellant, the appellant may have been able to negotiate with the Tribunal or return to Australia prior to the Tribunal making a decision if he was given several more days.  The evidence is to the contrary.  The Tribunal contacted DIMIA and was advised that the appellant’s bridging visa would not be extended.  It was appropriate for the Tribunal to accept this advice.  Moreover, I accept that the advice was accurate.  This ground of appeal is also incapable of supporting a contention that the decision of the Tribunal was affected by jurisdictional error.

22. The third alleged ground of appeal is that the Tribunal was estopped from relying on the fact that the appellant was not in Australia at the time of the Tribunal’s decision because DIMIA did not warn the appellant that if he overstayed his bridging visa he would not be able to extend the visa overseas.  As mentioned above, the letter advising the appellant of the grant of his bridging visa highlighted advice that the visa would only remain in force until 30 March 2000 and that he should return to Australia on or before that date.  There was, of course, no reason for DIMIA to conclude other than that the appellant wanted to return to Jordan to attend his father’s funeral.  The length of the bridging visa was perfectly adequate to allow him to do that.  Moreover, having regard to the fact that the appellant claimed to fear persecution in that country, DIMIA had no reason to expect that he would wish to delay returning from his father’s funeral. 

23. In any event, the terms of s 36(2) of the Act are clear. The Tribunal could not have disregarded the terms of that subsection and remained within its jurisdiction. The doctrine of estoppel cannot be relied upon to give an authority such as the Tribunal powers which it does not in law possess. The Tribunal has no power to grant a protection visa to an applicant who is not in Australia. No estoppel was capable of arising in the circumstances.

24. I am satisfied that none of the purported grounds of appeal contained in the amended notice of appeal identifies a matter capable of constituting error affecting the judgment of the Federal Magistrates Court.

    APPELLANT’S PLEA

25. The appellant has expressed a fervent wish to be allowed to remain in Australia to be with, and care for, his de facto wife and her son.  Each of them has apparently been granted a protection visa.  However, I do not have the power to grant the appellant’s wish.  This Court has no jurisdiction to grant the appellant a protection visa or to remit this matter to the Tribunal for reconsideration without being satisfied that the judgment of the Federal Magistrates Court is affected by error.  I am not satisfied that the decision of the Federal Magistrate is affected by error.  The decision of the Federal Magistrate was plainly correct.

    CONCLUSION

26. It is unnecessary for me to reach a view on whether this appeal should be summarily dismissed.  The appellant has been heard in full in support of his appeal.  The appeal is without merit.  It will be dismissed with costs.

I certify that the preceding twenty‑six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             24 June 2005

The Appellant appeared in person
Advocate for the Respondent:	B Griffin
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 June 2005
Date of Judgment:	24 June 2005