SZIRU v Minister for Immigration
[2006] FMCA 1377
•16 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIRU v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1377 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant – where applicant did not attend Tribunal hearing – applicant a citizen of China claiming fear of persecution as a Falun Gong practitioner – where application submitted to Tribunal by a former migration agent whose registration had been refused – where Tribunal made complaints to Migration Agents Registration Authority. PRACTICE & PROCEDURE – Competency – where decision made on |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.48A, 48B, 280, 283, 311A, 314, 477 Migration Litigation Reform Act 2005 (Cth), s.42 |
| Applicant: | SZIRU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1107 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 16 August 2006 |
| Date of Last Submission: | 16 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Ray Turner |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,500.00 and I allow (6) six months to pay.
I DIRECT that the Registrar is to forward a copy of these reasons for judgment to the Principal member of the Refugee Review Tribunal.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1107 of 2006
| SZIRU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was made on 18th May and handed down on 10th June 2004.
The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the applicant.
Background
The applicant is a citizen of The People’s Republic of China who arrived in Australia on 10th February 2004. He applied for a protection (class XA) visa on 19th February, but it was refused early the following month. The applicant then sought a review by the Refugee Review Tribunal.
Application for Review by Refugee Review Tribunal
The applicant submitted his application for review on 3rd March 2004. He enlisted the services of one David Deng of YWS & Associates, Migration Consultants. The applicant nominated Mr Deng as his authorised recipient for correspondence.
The Tribunal wrote to the applicant on 2nd April 2004 at the address of his authorised recipient. The letter invited the applicant to attend a hearing of the Tribunal on 7th May 2004.
There was no reply to the letter and the applicant did not attend the hearing. Not surprisingly, the Tribunal found that the applicant’s claims were “vague, general and lacking in detail”.[1] The Tribunal found that the applicant had not provided sufficient evidence to support his claims of being at risk for his claimed affiliation to Falun Gong.
[1] Court Book page 59
The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations and, therefore, did not satisfy the criterion set out in s.36(2) for the grant of a protection visa.
Application for Judicial Review
The applicant did not commence proceedings in this Court until he filed an Application under Migration Act under Rule 44.05 on
11th April 2006. At that stage he was in Immigration Detention. In his original application, the applicant claimed that he was notified of the Tribunal decision on 18th May 2004, but that is clearly incorrect.
The first respondent opposes the application, pointing out that the application is incompetent. It was filed contrary to the time limit imposed by s.477 of the Migration Act.
The applicant has obtained legal representation. At the hearing, it was conceded that the applicant was notified at some time prior to December 2005. As a result, by operation of s.42 the Migration Litigation Reform Act 2005 the applicant is regarded as having been notified on 1st December 2005. Accordingly, the Court has no power to make an order that the time for making the application be extended under s.477 of the Migration Act. The application needed to have been filed by 23rd February 2006 at the latest, but it was not filed until
11th April 2006.
Conclusions
The application is out of time and the Court has no jurisdiction to entertain it. The application will be dismissed with costs.
There is, however, another issue. There are matters covered in the affidavit of Raymond Charles Turner, the applicant’s solicitor that raise concern. It has always been the applicant’s case that he had entrusted the handling of his case to David Deng, and he claims that Mr Deng never informed him about the Refugee Review Tribunal hearing. It is uncontested that the applicant did not attend the hearing.
Mr Turner’s affidavit annexes a copy of the decision of the Migration Agents Registration Authority No. 03230343 dated 7th June 2004 in relation to David Gang Deng.
The decision refers to a number of complaints made against the agent by the Department of Immigration and Multicultural and Indigenous Affairs made between 8th September 2003 and 2nd March 2004.
The decision also refers to complaints made by the Refugee Review Tribunal made on 27th February 2004. The Authority found the complaints to have been made out.
The complaints made by the Department were that the agent had provided false addresses for several protection visa applicants.
The complaints made by the Refugee Review Tribunal were that the agent had lodged applications for review of decisions refusing the applicants’ protection visa applications in which he had provided only minimal information and outlined claims that were not in line with those made by the applicants and did not contain any information about the personal circumstances of each applicant or about the specific incidents (dates, places, names etc) that caused him or her to consider themselves to be a refugee.[2]
[2] Notice of Decision annexed to the affidavit of Raymond Charles Turner, 4.3.2.10
The Authority noted that the same statement was provided in all of the applications for review that were the subject of the complaints:
(1) I do believe that I have a well-founded fear of persecution when I return to PRC – my original country because I practice FALUN GONG.
(2) I do think that I meet the definition of UN convention of Refugee.
(3) I don’t think that the decision made by DIMIA is neither fair nor reasonable.
The agent’s registration application was refused by the Authority on 14th January 2004. On 7th June 2004 the Authority determined to bar the agent from being a registered agent for a period of 5 years, as the Authority was satisfied pursuant to s.311A(1) of the Migration Act that the agent had not complied with the Code of Conduct prescribed under s.314(1) of the Act. The Authority was satisfied that the agent was not a person of integrity or otherwise not a fit and proper person to give immigration assistance.
An examination of the Court Book shows that the applicant lodged an application with the Refugee Review Tribunal on 3rd March 2004.
The reasons for making the application are identical to those quoted in paragraph 16 above. The Tribunal received the application for review on 3rd March 2004; 4 days after the Tribunal had lodged several complaints against the agent with the Authority. The complaints were about 8 applications for review where the identical statements were made.
The Court Book shows that the copies of the applicant’s applications for a protection visa, the applicant’s statement, the letter from the Department to the applicant dated 2nd March 2004 and the protection visa decision record all bear the stamp “Original removed for evidentiary purposes on 18/3/04 by Investigations” together with a signature.
In my view, at the time the applicant’s application for review was lodged with the Tribunal both the Department and the Tribunal were not only aware that the agent’s practice relating to applications was irregular, but that both the Department and the Tribunal had already complained to the Authority about the agent.
In addition, by the time that the applicant’s application for review was lodged with the Tribunal on 3rd March 2004, the Authority had already on 14th January 2004 refused the agent’s registration application.
In my view, the Tribunal was on notice that any application lodged by the agent, or former registered agent, had to be viewed with suspicion, at the very least.
It appears that by submitting an application for review on 3rd March 2004 after he had ceased to be a registered migration agent on
14th January 2004, Mr Deng may have been holding himself out to be a registered migration agent when in fact he was not. As Mr Deng is not a party to these proceedings, it is for others to determine whether or not there is evidence of an offence under ss.280 or 283 of the Migration Act.
In any event, I am satisfied that the applicant appears not to have been well served by Mr Deng. It is a matter of some surprise that the Tribunal, having complained to the Authority of similar matters on the part of Mr Deng only 4 days earlier, appears not to have taken any action in respect of this applicant’s application for review, but accepted it at face value.
Recommendation
The circumstances of this case indicate that the applicant was deprived of the opportunity to put his case for review before the Tribunal. It is not a case where the Tribunal can be said to have been entirely unaware of any wrongdoing on the part of the applicant’s “agent”. I intend to direct that a copy of my reasons for decision should be brought to the attention of the Principal Member of the Refugee Review Tribunal.
In the ordinary course of events, the applicant would be prevented by
s.48A of the Migration Act from making a further application for a protection visa while he remains in the migration zone. In the circumstances, however, this may well be a case where the Minister may consider it to be in the public interest to determine that s.48A does not apply to prevent an application for a protection visa to be made.
The Minister is given the power to act in this way by s.48B of the Act. Sub-s.48B (6) makes it clear that this is entirely a matter for the Minister.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 14 September 2006
0
0
3