SZIOU v Minister for Immigration

[2006] FMCA 602

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIOU v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 602

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – dismissal of show cause application at the first court date – review application lodged out of time – no error by RRT in finding that the review application was ineligible.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth)

Re Minister for Immigration; ex parte Miah (2001) 197 ALR 238

SZCTH v Minister for Immigration (No 2) [2004] FMCA 284 at [26]-[27]

Applicant: SZIOU

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG934 of 2006

Judgment of: Driver FM

Hearing date: 26 April 2006

Delivered at: Sydney

Delivered on: 26 April 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S Hanstein
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The Court directs that the name of the applicant is not to appear on the transcript of today’s hearing.

2. Pursuant to rule 44.11(a) of the Federal Magistrates Court Rules 2001 (Cth), there shall be an immediate hearing under rule 44.12.

3. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

4. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG934 of 2006

SZIOU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application for an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”). The application was filed on 29 March 2006.  The RRT decision was made on 1 March 2006.  The applicant asserts notification of that decision on 10 March 2006.  On that basis I find that the application was filed within time.  The RRT found that it had no jurisdiction to deal with the review application before it because it was not made within the time prescribed under the Migration Act 1958 (Cth) for a review application.

2. The applicant asserts that he was cheated by a Mr Li who claimed to be a migration agent. The applicant asserts that he authorised Mr Li to lodge applications on his behalf but that Mr Li failed to act properly on his instructions. The applicant also denies notification of the decision of the Minister's delegate. Based upon what was said by the parties at the bar table I decided to order an immediate hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I received as evidence an affidavit by Sharon Elizabeth Hanstein made on 24 April 2006 and the applicant's affidavit made on 28 March 2006. I also gave the applicant the opportunity to give oral evidence which he accepted.

3. The evidence establishes to my satisfaction that the applicant was indeed poorly represented by Mr Li.  When the applicant arrived in Australia he was introduced to Mr Li as someone who could assist him in making a protection visa application.  The applicant met Mr Li at a TAB office and signed a blank protection visa application.  This was subsequently lodged on the applicant's behalf with the Minister's Department.  Later, the applicant again met Mr Li and signed a blank form which was an appointment of a migration agent form.  The form appears as the annexure at page 5 of Ms Hanstein's affidavit.  The applicant confirmed that the signature in Chinese characters appearing on page 7 is his.  The applicant in that form appointed a Ms Ling Jian Jia to be his migration agent.  It appears that these details were inserted in the form by Mr Li.  The applicant was subsequently told by Mr Li of Ms Jia's role as his agent and was told that she worked in the same firm as Mr Li.  The applicant paid Mr Li $1,500 for his services. 

4. Following the rejection of the protection visa application by the Minister's delegate a letter of notification was sent to Ms Jia by the Minister's Department.  A letter was also sent to the applicant at his nominated home address by registered post but he denies receipt of it.  There is, however, no doubt that the applicant's nominated agent, Ms Jia did receive the letter.  That is because Mr Li contacted the applicant and told him of the rejection of his protection visa application.  This occurred on or about 7 November 2005.  On or about 10 November 2005 the applicant signed a blank RRT application form and instructed Mr Li to lodge it on his behalf.  The applicant understood that this would occur.  However, the application form was not lodged in time and was eventually returned to the applicant partially completed by Mr Li.  The applicant then attempted to lodge the application himself but as was found by the RRT it was then too late. 

5. As has been previously said by this Court[1] and by the High Court[2], there are circumstances where, as here, injustice can result from the inability of the RRT to extend time for the filing of a review application.  However, Parliament is entitled to place time limits on such applications and has done so.  The RRT was correct in finding that the review application was lodged out of time and that it had no jurisdiction in the matter.  It follows and I find that the application before me has no prospect of success. 

   [1] see SZCTH v Minister for Immigration (No 2) [2004] FMCA 284 at [26]-[27]

   [2] see Re Minister for Immigration; ex parte Miah (2001) 197 ALR 238 at [223]-[224]

6. I will therefore order, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules, that the application be dismissed.

7. The application having been dismissed, costs should follow the event.  Ms Hanstein tells me that the Minister's assessment of her costs on a party and party basis to date is $1,200.  The Court rules prescribe costs payable by the unsuccessful party at a first court date in migration proceedings at $1,000.  The Minister does not press for an order for costs in excess of that amount.  The applicant did not argue against an order for costs.

8. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application in accordance with rule 44.15(1) and item 1(a) of Part 2 of Schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  5 May 2006