SZIVU v Minister for Immigration - [2006] FMCA 1728

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIVU v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1728

MIGRATION – Application in 2006 to review decision of the Refugee Review Tribunal – application out of time – inordinate and unexplained delay in any event – application refused.

Migration Act 1958, ss.425, 425(1), 426A , 477

SZIVA v Minister for Immigration & Anor [2006] FMCA 1494

Applicant:

SZIVU

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1415 of 2006

Judgment of:

Burchardt FM

Hearing date:

25 October 2006

Date of last submission:

25 October 2006

Delivered at:

Melbourne (via video link to Sydney)

Delivered on:

7 December 2006

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Ms Rayment

Solicitors for the Respondent:

Sparke Helmore Lawyers

ORDERS

The application filed 16 May 2006 be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $3,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1415 of 2006

SZIVU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By an application filed with this Court on 16 May 2006, the Applicant seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 September 1998 in which the Tribunal affirmed a decision of the Minister’s delegate refusing the Applicant a protection (Class XA) visa.
The application on its face asserts grounds which must be said to be somewhat general in terms. Essentially what the Applicant seeks is orders in the nature of certiorari to quash the Tribunal’s decision and ancillary orders remitting the matter to the Tribunal for reconsideration.
The application suggests in paragraph 2 and 3 that there was a failure by the Tribunal expressly to refer in its decision to its discretion pursuant to s.426A of the Migration Act 1958 (“the Act”) whether to proceed to a decision given the non-attendance at the hearing by the Applicant. A further ground is that the Respondent failed to comply with s.425(1) and s.426A of the Act and thereby committed a “jurisdictional error of law”. These matters are in effect virtually quotes from the application and it will be readily apparent that there is no particularity given to the complaints made therein.
The Applicant initially filed an affidavit sworn on 16 May 2006 in which he relevantly deposed that he had lodged an application for a protection visa on 1 August 1997 and that the Tribunal affirmed the delegate’s decision by the Tribunal’s decision given on 30 September 1988.
The Applicant filed also an affidavit sworn on 12 July this year in which he relevantly asserted that he had not received a copy of the decision of the Tribunal until 7 May 2006. The Applicant asserted in that affidavit:
“That’s why I delay lodged the application the Federal Magistrates Court of Australia under the Migration Act 1958. The decision to refuse to grant the protection visa is known as “privative clause” decision. However, the High Court has held that such a decision can be review, Refugee Review Tribunal.”
The Court formed a preliminary view that the Applicant was seeking, at least implicitly, an extension of time and gave the Applicant the opportunity to give evidence both as to why he did not attend the original hearing in 1998 and as to when he received notice of the Tribunal’s decision given in 1998.
The Applicant’s evidence-in-chief, given of course through an interpreter, as he plainly does not speak English, was to the effect that he did not receive notices of hearing because he had changed his address and it was possible that his migration agent had not informed the relevant authorities of that change of address. He went on to say that he had, after a long period of not hearing anything from the Tribunal, contacted his agent who told him that his refugee application had been rejected. He asked the agent if he could go to the Federal Court but was told that he needed substantial sums of money to do so. It should be noted that the sums to which the Applicant referred were qualified in cross-examination from $5,000.00 to a total of $30,000.00 for an entire trial.
The Applicant asserted that as a new arrival who was not working he did not have the financial means to go to the Federal Court.

He asserted that he thought that the agent would handle matters for him. He went on to say, however, that he had been illegal for so many years he decided he would go to the Court. I understood the Applicant to indicate by the use of the word “illegal” that he understood that his visa had expired and that he was in Australia unlawfully thereafter.

He said that he did not know the original hearing in 1998 was as important as it has now turned out to be. He said that friends had told him he could reapply if he did not attend the hearing and that he might be given another chance.
Under cross-examination the Applicant admitted that the application to the Refugee Review Tribunal, contained at page 40 and following of the Court book had his signature on it even though he did not write the application out. He noted that the address given on that application at page 41 of the Court book was his then address and he conceded that the address given for service was probably that of his migration agent.
He subsequently confirmed that the response to hearing offer contained at page 55 of the Court book was signed by him. He said, however, he did not attend the hearing in September 1998 because his agent had spoken to him but not told him what the hearing meant or the document, the response to hearing offer. He did, however, confirm under further cross-examination that his agent told him that his application for a refugee status visa had been refused and that this was many years ago. He confirmed that this in fact would have taken place in 1998. He confirmed under cross-examination further that he had known he was illegal for many years because he knew of the decision of the Refugee Review Tribunal as explained to him by his migration agent.
In submissions, the Applicant simply said that it was his hope that the Court would give him a chance to reapply for refugee status.

He asserted that in the past he did not know it was so important to attend the hearing but he now did and hoped that the Court would give him another chance.
Counsel for the First Respondent submitted that it was clear that the Applicant accepted that he was advised in 1998 of the decision of the Tribunal by his migration agent and was told of his appeal rights to the Federal Court. She submitted that while he may have been given inaccurate advice in relation to that appeal, he did accept it and did not appeal to the Federal Court.
I accept those submissions. It is clear that s.477 of the Act in its current form was enacted to take effect from 1 December 2005 and that pursuant to the legislation as it now stands, any application must be made within 28 days of the notification of decision and the Court’s discretion to extend time in these circumstances at best does not extend beyond 24 February 2006.
Counsel for the First Respondent further submitted that if it was established that actual notification of the Tribunal’s decision took place prior to 1 December 2005, any application after 24 February 2006 was incompetent. She referred to the judgment of Federal Magistrate Smith in SZIVA v Minister for Immigration & Anor [2006] FMCA 1494 at paragraphs [46] to [47] in this regard. In that decision Federal Magistrate Smith found that actual physical possession of the reasons for decision of the Tribunal and its decision and an understanding of the same were not necessary to ground a finding that the Applicant had notification of the decision.
In this case it is clear on his own evidence that the Applicant had an understanding, and indeed a clear one at that, both of the fact of the Tribunal’s decision in 1998 and its effect. So much is clear from his evidence that he knew he had been illegal for many years and indeed knew of the Tribunal’s decision in 1998. In my opinion counsel for the First Respondent is correct and the application is incompetent because it was not lodged within time.
Even if this finding were to be wrong, it is not correct that s.425 of the Act was not complied with. Section 425 in its then form in 1998 required that where a review on the papers was not available, the Tribunal must give the Applicant an opportunity to appear before it to give evidence. There are other matters in s.425 as it then was which are not now relevant.
The Tribunal clearly did give the Applicant an opportunity to be heard. So much is clear from the letter from the Tribunal to the Applicant dated 12 August 1998 at Court book 53 to 54 and indeed from the response to hearing offer completed by the Applicant or in any event signed by him at Court book 55. Thus even if the question of the competence of the application was to be found favourably to the Applicant, the substantive ground raised in relation to s.425 is plainly misconceived. Likewise, the criticism advanced by the Applicant in respect of s.426A is erroneous. Section 426A did not exist in 1998.
Furthermore, even if I was to be wrong as to that finding, the Applicant has not in any way sought to or still less been able to explain the delay between his awareness of the Tribunal’s decision in 1998 and the filing of the application on 16 May 2006.
Given the Applicant’s sworn evidence before me, I cannot accept his assertion in his 12 July affidavit that he first became aware of the decision of the Tribunal on 12 July 2006. He has clearly deposed in his oral evidence before me that he knew of that decision in 1998. Thus, were it a matter of discretion, I would not be disposed to grant relief to the Applicant because the delay in his application has been inordinate and not satisfactorily explained.
It therefore follows that the application should be dismissed and will also order that the Applicant pay the First Respondent’s costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Burchardt FM.

Associate: Brooke Evans

Date: 7 December 2006