SZFIL v Minister for Immigration (No.2)

[2005] FMCA 928

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFIL v MINISTER FOR IMMIGRATION (No.2) [2005] FMCA 928

MIGRATION – VISA – Protection visa – Refugee Review Tribunal – application for review of decision affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – where the applicant did not attend the RRT hearing – no reviewable error.

PRACTICE & PROCEDURE – Notice of Objection to Competency – privative clause decision – where application filed more than 28 days after the applicant was notified of the decision.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.426A, 477

B41/2003; In the matter of an Application for a writ of mandamus, prohibition and certiorari against Refugee Review Tribunal (2004) FCA 30

Applicant: SZFIL

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 3767 of 2004

Delivered on: 30 June 2005

Delivered at: Sydney

Hearing date: 30 June 2005

Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person

Solicitor for the Respondent: Ms Bautista

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Application is dismissed. The Application is not competent.

2. The Applicant is to pay the Respondent’s costs fixed in the sum of $4,500.00 on a party and party basis. I allow three (3) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3767 of 2004

SZFIL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal that was heard on 21 October 2002.  The decision was made on 22 October and handed down on 12 November 2002. The Applicant did not attend the hearing. 

2. The Applicant is a citizen of India.  He arrived in Australia on 30 July 2001.  On 16 August 2001 he lodged an application for a protection class XA visa.  A delegate of the Minister refused a protection visa on 22 October 2001.  The Applicant sought a review of that decision.  The Tribunal wrote to the Applicant saying that it had considered the material before it in relation to his application, but was unable to make a decision in his favour on that information alone.  The Tribunal invited the Applicant to attend a hearing on 21 October 2002 at 3:30 pm. The purpose of attending that hearing was to give oral evidence and to support arguments in support of his claims.

3. The Applicant was represented by a migration agent at the time.  There was some communication between the migration agent and the Refugee Review Tribunal about the hearing.  The agent told the Tribunal that the Applicant was living in Melbourne at the time of the hearing and would appreciate the hearing being arranged in the Melbourne registry of the Tribunal.  The Tribunal in fact arranged for the hearing to be conducted by video-conference on that day with the Applicant in Melbourne and the member and the interpreter in Sydney. 

4. The Applicant says that he went to the agent's house about 10 days before the hearing.  I note that the Applicant's migration agent's letter to the Tribunal was written on 14 October 2002, some seven days before the hearing, advising the Tribunal of the Applicant's address in Victoria.  The Applicant said he became ill the day before the hearing.  He says he telephoned the migration agent to say that he was ill and the agent told him it did not matter if he went to the hearing or not but that the agent would endeavour to obtain an adjournment.  The records do not show any telephone conversation between the migration agent and the Refugee Review Tribunal relating to the Applicant being ill. 

5. The records show that on 16 October the Tribunal telephoned the Applicant's migration agent to advise him that the hearing was going to proceed in Melbourne at the same time and day; that is, 3:30 pm on 21 October.  The agent said that he would inform the Applicant.  The Tribunal telephoned again on 17 October and was told by the adviser that he had sent the letter to the Applicant and had called the Applicant the day before but could not get in touch with him.  The agent said that he would call the Applicant again.  There is no other record of any communication until 20 August 2003 when a copy of the file was sent to the court.  The agent did not obtain an adjournment of the proceedings and the hearing continued without the benefit of the Applicant's attendance.  The Tribunal proceeded with the hearing on the basis of the information that it had. 

6. The Tribunal is entitled to do this under section 426A of the Migration Act. The Tribunal considered the material that it had relating to the Applicant's claim of being persecuted in India for political and religious activities. At page 68 of the court book the Tribunal member says:

   The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is well-founded or that it is for the reason claimed.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 

7. The Tribunal at page 69 of the court book noted the claims of the Applicant, but also noted that he had not provided any specific details of his claims, merely making general assertions about what he did and what might happen to him if he returned to India.  The Tribunal noted that the Applicant's claims of political and religious activity were lacking in detail. 

8. The Tribunal found that in the light of that evidence it was not satisfied that the Applicant was subject to persecution for his religious or political activities in India or that there was a real chance of his being persecuted if he were to return.  The Tribunal affirmed the decision not to grant a protection visa. 

9. The Applicant commenced his original proceedings for review by means of a South Australian solicitor, Mark Wallace Clisby, in June 2003. These proceedings were, I understand, part of a class action.  The proceedings were dismissed on an interlocutory basis by Mansfield J of the Federal Court in October 2003. The Applicant did not commence these proceedings until 23 December 2004 when he was in Immigration Detention. 

10. The Respondent has filed a Notice of Objection to Competency, pointing out that the Respondent objects to the jurisdiction of the court to try this application on the ground that the court has no jurisdiction to review the decision made by the Tribunal. The Respondent submits that subsection 477(1A) of the Migration Act provides that an application to the court must be made within 28 days of the notification of the Tribunal decision.

11. These proceedings are clearly out of time.  Even disregarding the period of time when the Applicant was a party to other proceedings, there still remains unexplained the time gap between November 2002 and June 2003.  There also remains unexplained the time gap between October 2003 and the commencement of these proceedings on 23 December 2004.  The Applicant said that his original migration adviser, Mr Anil Agnihotry, told him that he did not have to apply for a review immediately. Whether or not that was said, the Applicant cannot rely on that in support of his claim.  The court has no power under subsection 477(2) to extend the time for commencing proceedings to review a decision of the Tribunal. 

12. The time lapse would not be so critical to the Applicant's case if he could demonstrate that the decision of the Tribunal to which the substantive application relates was not a privative clause decision. 

    
    

    To do this he would have to show that the decision was affected by jurisdictional error.  It is difficult to see how he can do that, especially as he did not attend the hearing.  The Applicant says that his agent told him that it was not necessary to attend the hearing and that he was sick and asked the agent to get him an adjournment, but the agent clearly did not do so. 

13. The Applicant has missed his chance of giving evidence to the Tribunal which may have had a significant effect on his case.  I do not know if the agent advised the Applicant against appearing or not.  It is quite clear that a party who acting on advice does not appear at the Tribunal may not later complain that that action led to his not being heard. 

    
    

    I refer to B 41 of 2003: In the matter ofan Application for a writ of mandamus, prohibition and certiorari against Refugee Review Tribunal (2004) FCA 30.

14. The Applicant was aware or should have been aware the Tribunal considered that the material it already had before it was not sufficient to allow it to make a decision in the Applicant's favour.  That is why he was invited to attend the hearing and give evidence and make submissions.  He did not do so and it is hardly surprising that the application did not succeed. 

15. The Applicant's amended application complains that the Tribunal used independent information that was not shown to him by the Tribunal.  But of course if the applicant had attended the Tribunal hearing that state of affairs may not have happened.  The second ground goes straight to a challenge on the facts.  He attempts to make further submissions about the facts or offer further evidence.  It is not the function of a court exercising the power of judicial review to rehear an application on its merits.  The Refugee Review Tribunal hearing was the occasion for the Applicant to attend and give evidence in support of his case.  He did not attend that hearing and his opportunity has gone. 

16. There is no procedural unfairness or denial of natural justice in the way the Tribunal conducted its hearing.  There is no jurisdictional error.  There is no reviewable error and so the application is not competent because the decision is a privative clause decision and the application is out of time.  As there is no merit in the substantive application, even if I were satisfied that there was some merit, the delays by the Applicant in commencing proceedings since the decision was handed down in November 2002, are so extensive and unexplained that the court would be reluctant to exercise its discretion in the Applicant's favour in any event.  The application is dismissed.  The application is not competent as the court has no jurisdiction to hear the application. 

17. The Applicant has pointed out that he is currently unemployed and does not have permission to work.  He has been in Immigration Detention.  Costs usually follow the event in this jurisdiction, which means that the successful party can expect a costs order in its favour.  The fact that the unsuccessful party may not be immediately in funds to meet such an order is not a reason for the court not to make a costs order.  In my view, the difficult financial circumstances of a party should be dealt with by the court by means of an award of time to pay. 

18. The Applicant is to pay the Respondent's costs fixed in the sum of $4500 on a party-party basis.  I allow three months to pay. 

19. I require a transcript of my reasons for this decision on a next-day basis. The application is removed from the list of cases awaiting finalisation. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  1 July 2005