SZIUG v Minister for Immigration
[2006] FMCA 1836
•5 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIUG v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1836 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of the People’s Republic of China. PRACTICE & PROCEDURE – JURISDICTION – Competency – application out of time. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) s.477 |
| Applicant: | SZIUG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1291 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 December 2006 |
| Date of last submission: | 5 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2006 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Mr Muthalib |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application is not competent.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $5,800.00.
I DIRECT a copy of this decision is to be forwarded to the Law Society of New South Wales for investigation of the activities of Tong Xing Zhang and a copy to be forwarded to the Migration Agents Registration Authority for investigation of the activities of Mr Zhang and Mrs Chen.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1291 of 2006
| SZIUG |
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. The decision was made on 12th February 2004 and handed down on 4th March 2004. The application was filed on 5th May 2006.
The solicitors for the Minister have filed a Notice of Objection to Competency objecting to the jurisdiction of the Court to hear the application because it is out of time. The Notice claims that the decision was notified to the Applicant on or about 19th March 2004. The Notice also points out that the application was made on 5th February 2006 which is not within 28 days of the date of notification of the decision. That being the case, it is outside the 28 day time limit in s.477 of the Migration Act.
Under sub-section (2) of 477 the Court may extend that 28‑day period by up to 56 days in certain circumstances but this would not assist the Applicant as his application was filed not only more than 28 days from 19th March 2004 but more than the additional 56 days provided by sub‑section 477(2). The date of notification is crucial because the Act relies on actual notification and not deemed notification.
The Applicant says that he was not notified in March 2004. He says that he did not find out until a search was made in March or April 2006. He filed an affidavit on 5th May 2006 which I have rejected. Although it bears a certificate of interpreter signed by one Tong Xing Zhang saying that before the Applicant signed the affidavit Mr Zhang read the affidavit to him in Mandarin. The Applicant said that that did not happen. On that basis I cannot be satisfied that the affidavit should be admitted, although the certificate of the interpreter is a matter of some interest which I will deal with shortly.
The Applicant filed a document headed "Affidavit" which is actually in the form of a Statutory Declaration under the Oaths Act (1900) New South Wales. That document was accepted for filing on 20th June 2006. It does not bear any certificate from an interpreter but the Applicant has given oral evidence today in which he identified the document and said that he was aware of the contents and that the contents were true.
In the circumstances, as I am satisfied that he was appropriately affirmed in this Court and that he was able to identify the document, I am satisfied that I should accept it as an affidavit notwithstanding its deficiencies in form.
His account is that he arrived in Australia on 29th August 2003. He said that he went to see a migration agent called Mrs Chen in the Jian -De building in Chinatown in Sydney on 6th September 2003. That person told him that she could help him apply for a protection visa in Australia. He paid her $700.00 and she asked him to sign a couple of forms. She also asked him for his passport. A few days later she told him that he had been given what he described as a pre-protection visa and she told him that he could look for work and try to settle down in Australia.
He said that in April 2004 he received a call from Mrs Chen who told him that his application had been refused. He said Mrs Chen said that she could appeal to the Minister on his behalf and she asked him for another $500.00. He said that Mrs Chen renewed his visa for him about three times and then he could not find her any more because her office was closed.
According to the Applicant's oral evidence, he then did nothing further by way of either regularising or even inquiring about his immigration status in Australia until April 2006. When asked why he had not done so he said that he would not dare to go to the Department of Immigration because everyone said that if you go there and you have a problem you might not be able to go home. Nevertheless he said in April 2006 he met Mr Zhang through Falun Gong activities. He said he was introduced by a friend to Mr Zhang whom everyone refers to as "Teacher Zhang". Mr Zhang lives somewhere in Kempsey.
Mr Zhang spoke to him about his immigration situation and asked him whether he had lodged an application to the Refugee Review Tribunal. The Applicant said that Mr Zhang made some inquiries on his behalf and found out that the application to the Minister to exercise her discretion under s.417 of the Migration Act had been refused. The Applicant said that Mr Zhang told him that he could get another chance and that he should lodge an application at the Court for review of the Tribunal decision. He also said that Mr Zhang said that he would be able to obtain a work permit. On the Applicant's evidence the promised work permit did not eventuate.
It is thus that the application has been brought to this Court. At the time the Applicant was living at an address in Ashfield although he has filed a Notice of Change of Address for Service and now lives at another suburb of Sydney.
The solicitors for the Minister have filed an affidavit of Ishan Fuad Muthalib, solicitor, dated 18th October 2006. Annexed to that affidavit are four documents. The first is a copy of a letter addressed to the Minister for Immigration purporting to be from the Applicant. It bears the Applicant's signature. The first paragraph says this:
My situation is as same as Zhang, Shu Chun. On 4 March 2004, the Tribunal has decided I am not entitled to a protection visa. I am disagreeing with the Tribunal's decision.
The next document annexed to Mr Muthalib's affidavit is a letter dated 5th April 2004 from the Acting Director of the Ministerial and Executive Services Section of the Department of Immigration and Multicultural and Indigenous Affairs. That letter acknowledges receipt of the Applicant's letter of 19th March 2004 and advises him of what will happen.
The next annexure is another letter addressed to the Applicant from the Ministerial Intervention Unit Onshore Protection NSW. It is dated 16th December 2004 and it is addressed to the Applicant at his street address being the address which he gave when he filed his application on 5th May 2006. That letter referred to the Applicant's application to the Minister to consider exercising the Minister's discretion under s.417 of the Migration Act. The third paragraph of the letter says this:
Your case was referred to the Minister for Citizenship and Multicultural Affairs, the Honourable Peter McGauran MP, as the matter falls within his portfolio responsibilities. However, on 13 November 2004 the Minister decided not to consider exercising his power in this case.
The next annexure is an email from Trish Tyson, legal officer from the Enforcement and Citizenship Litigation Service annexing what is said to be the postal register from the Refugee Review Tribunal for 4th March 2004 when the Applicant was sent the RRT decision record.
In my view it is very difficult to read although it purports to show that the Applicant was sent a copy of the Tribunal decision on 4th March and it shows the record of registered post RP19687514 which is identical to the sticker attached to the Applicant's letter dated 4 March 2004 from the Tribunal. That letter was sent to a post office box number, Post Office Box K1061 Haymarket, New South Wales 1240. It is that address which the Applicant gave in his application for review to the Refugee Review Tribunal which was received on 27th October 2003 and a copy of which appears on pages 46-49 of the Court Book. The Applicant was shown that application and identified his signature on page 49. Thus, there is evidence that the Tribunal did forward a copy of the decision to the Applicant's mailing address on 4th March 2004.
Notwithstanding this, the Applicant who spent some time in the witness box was asked questions both from the Bench and from Mr Muthalib for the Minister, denies having known about a hearing of the Refugee Review Tribunal and denies having received any copy of the decision. He denies knowing of the hearing.
At best it could be said that the Applicant was showing a degree of wilful blindness in not making inquiries about a matter as important as his immigration status, especially has he is applying to be a refugee.
What the Applicant said is that the man who lives somewhere in Kempsey whom he knows only as Teacher Zhang prepared his application to the Court and then charged him $1,000.00 for the privilege. It is my understanding that charging a fee of money, a sum of money to prepare Court documents would represent legal work and unless a person holds a practicing certificate a person is not entitled to prepare Court documents for money.
It would also appear that the person known to the Applicant only as Teacher Zhang appears to have been charging money to the Applicant and holding himself out as some form of migration agent. Unless one is a registered migration agent it is my understanding that one may not give advice about migration, certainly not for money.
Either way I am satisfied that the activities of Mr Zhang need to be investigated, at the very least by the Migration Agents Registration Authority and also by the Law Society of New South Wales. It appears to me that the person who gave the certificate of interpreter on the Applicant's affidavit filed on 5th May 2006 is the person referred to by the Applicant as Teacher Zhang. That man's name is Tong Xing Zhang whose address is given as 17 Fourth Avenue Campsie. I propose to forward a copy of my reasons for decision to the Law Society of New South Wales and also to the Migration Agents Registration Authority so they may look into the activities of the person known as Teacher Zhang.
The question of the migration agent Mrs Chen of the Jian-De Building in Chinatown referred to in the Applicant's affidavit of 20th June 2006, also appears to be a matter of some concern. It is my view that the Migration Agents Registration Authority should investigate the activities of that person.
The matter that I have to consider is the threshold question of whether or not the Court has jurisdiction. If the Applicant was indeed notified in March 2004 as the solicitors for the Minister contend then the application to the Court is not competent because it is out of time and so far out of time that an extension under s.477 of the Migration Act is not possible. If the Applicant was not notified of the Tribunal decision until he says he was when Teacher Zhang made his inquiries in April 2006 then the application is within time and the Court has jurisdiction to hear it.
In my view, I am satisfied that there is evidence that the Applicant was notified of the Tribunal decision in March 2004. The documents annexed to the affidavit of Mr Muthalib show that the Tribunal forwarded a copy of the decision to the Applicant's mailing address by registered mail on 4th March 2004. The letter to Senator Vanstone of 19th March 2004 bearing the Applicant's signature clearly indicates that on 4th March 2004 the Tribunal decided he was not entitled to a protection visa. I am satisfied that the signature is the Applicant's signature and I am satisfied that the Applicant was notified by 19th March 2004.
The other reason why I am satisfied that the Applicant's account should not be accepted is that I did not believe his evidence. I had the opportunity of observing the Applicant in the witness box and whilst his answers came through a Mandarin interpreter I am satisfied that the interpreter met her obligation to the Court to translate the Applicant's answers into English to the best of her skill and ability. I found the Applicant's account eminently unbelievable and I do not believe that he was telling the truth to the Court. It is for these reasons that I am satisfied that the Applicant was noted by 19th March 2004 and that therefore the application is out of time.
The Applicant has been wholly unsuccessful in his claim and the Court has found that it has no jurisdiction. I note that this is an application which has had a considerable litigation history although it has been brought to an end today, at least in this Court. In my view the amount of $5,800.00 is an appropriate figure.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 8 December 2006
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