SZIWW v Minister for Immigration
[2006] FMCA 1635
•31 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIWW v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1635 |
| MIGRATION – Jurisdiction – application for review of decision of Refugee Review Tribunal where Court appears to have no jurisdiction – effect of s.477 of the Migration Act 1958 (Cth) – extension of time – where application for review filed more than 28 days after decision handed down – where decision made on 19 May 1999 – application under Migration Act not filed until 29 May 2006 – where applicant claims he was not notified of the Tribunal decision until 28 April 2006 – whether proof of notification prior to 28 April 2006. PRACTICE & PROCEDURE – Competence – jurisdiction – interlocutory orders – whether extension of time should be given – whether court is satisfied that it is in the interests of the administration of justice to extend the 28 day period. |
Migration Act 1958 (Cth), s.477
Migration Litigation Reform Act 2005 (Cth), cl. 42, Sch.1
Lindon v Commonwealth (No.2) (1996) 136 ALR 251 referred to.
| Applicant: | SZIWW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 1524 of 2006 |
| Delivered on: | 31 October 2006 |
| Delivered at: | Sydney |
| Hearing date: | 31 October 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Mr Cramer |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The time for making an application for a remedy under s.476 of the Migration Act 1958 is extended to 29 May 2006 pursuant to s.477(2) of the said Act.
The Application is listed for Final Hearing at 10:00am on Wednesday 15 November 2006 in Court 7B, Level 7, John Maddison Tower,
88 Goulburn Street, Sydney.The First Respondent must serve on the Applicant a sealed copy of the affidavit of Hayley Anne Blackman affirmed 30 October 2006 by Monday 6 November 2006.
I dispense with the requirement to prepare a Court Book.
The Applicant is to file and serve on the solicitors for the First Respondent a written outline of submissions by Friday 10 November 2006.
The First Respondent is to file and serve on the Applicant a written outline of submissions by Monday 13 November 2006.
The Applicant is to pay the setting-down fee of $364.00 to the Collector of Public Moneys, Federal Magistrates Court, Level 16, Commonwealth Courts, Queens Square, Sydney or obtain a waiver of that fee by Friday 10 November 2006.
An Interpreter in the Mandarin language is required for the hearing on 15 November 2006.
Costs of today are costs in the proceedings.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1524 of 2006
| SZIWW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an interlocutory application concerning the competence of 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 19th May 1999 after the Applicant did not attend a Tribunal hearing.
The application appears to be out of time. Although the decision was made on 19th May 1999 the application for judicial review was not filed until 29th May 2006, more than 7 years after the decision was made. It appears not to have been filed within the 28 days required by s.477 of the Migration Act.
The Applicant, who is in Immigration detention at Villawood, filed an affidavit on 29th May 2006. Attached to the affidavit is a copy of the Tribunal’s decision dated 19th May 1999. In the affidavit the Applicant deposes:
(i) My adviser did not tell me I should make an application with the Federal Court of Australia within 28 days of notification of decision of the RRT.
(ii) I filed[1] the appeal to the Federal Court of Australia within the time. I even don’t know about my appeal out of time. I am in detention and hard for me to get legal advice at the moment.
[1] The word used is “failed” but I take it to mean “filed”.
The application came before the Court for the first time on 26th June 2006. On that date, as there was some uncertainty about the date of actual notification of the Tribunal’s decision, I ordered the Applicant to file and serve an affidavit stating the actual date of notification of the Tribunal decision, and adjourned the application to 24th July for further directions.
When the matter came back to court on 24th July, Mr Prince, solicitor appeared on a pro bono basis for the Applicant. By this time, the Applicant had filed an affidavit of 3rd July 2006, in which he deposed:
(1) On 18 August 1998 I engaged a migration agent that I knew as adviser to act on my behalf in preparing an application for a protection visa.
(2) On 18 November 1998 I again engaged the migration agent to act on my behalf in preparing an application for review of the respondent’s decision by the RRT of Australia.
(3) I haven’t received the RRT decision until 28 April 2006.
By this time, the Applicant was no longer in Immigration Detention.
I listed the matter for Hearing on Competency at 2:00pm on
31st October 2006 and directed the Applicant to file and serve an affidavit setting out the circumstances in respect of his claim that he was not notified until 28th April 2006.
The Applicant filed a handwritten affidavit in barely legible form on 16th August 2006. In this affidavit he deposed:
(1) On 18 August 1998 the Migration Agent lodged the application for a protection visa to act on my behalf in preparing the application to the department.
(2) Migration agent made fake[2] story not allow me to attend the hearing day for my protection visa. That’s why I don’t have opportunity tell the member refugee review tribunal about my story.
[2] The word may also be “false” but the document is so badly written it is difficult to make out. The Applicant was not able to assist.
On 30th October 2006 the solicitors for the First Respondent filed two documents:
a)An outline of submissions; and
b)An affidavit of Hayley Anne Blackman.
Annexed to Ms Blackman’s affidavit is a bundle of documents containing a copy of the delegate’s decision made on 15th October 1998, the Tribunal’s decision made on 19th May 1999, items of correspondence in relation to the application for review taken from the Department’s file, and an email from Mr Bal Ram, a legal officer of the Department. The affidavit contains the material that would normally be found in a Court Book for the Final Hearing of an application for review of a decision of the Refugee Review Tribunal.
The Applicant’s oral evidence
The solicitor for the First Respondent Minister, Mr Cramer, wished to cross-examine the Applicant on the contents of his affidavits. After an explanation form the Bench about the advantages and disadvantages of cross-examination, the Applicant expressed a willingness to give oral evidence and entered the witness box. He gave evidence with the assistance of an interpreter. He was not legally represented.
The Applicant told the Court that he had not received a copy of the Tribunal decision until 28th April 2006, by which time he was in Immigration Detention. It was his evidence that he had engaged a migration agent, whose name he had difficulty remembering, to act for him on the preparation of an application for a protection visa.
The application was lodged about August 1998, he said, and he received the reply that it had been refused about 2 or 3 months later. In about November 1998 he instructed the agent to lodge an application for review by the Refugee Review Tribunal.
The Applicant did not recognise the copy of the application for review that was annexed to Ms Blackman’s affidavit and denied that the signature on it was his. He said that he did not receive any word about the outcome of his application for review and he was never invited to attend a hearing. He kept asking the agent what was happening but was constantly told that the matter was in hand. Eventually he lost contact with the agent. He did not make any inquiries with either the Department or the Tribunal because he was scared he would be deported.
Eventually, in February 2006 he was apprehended by Immigration officers and detained. It was then that he found out that he did not have a visa.
Issues
The issues in this matter are whether the Applicant was notified of the Tribunal decision in 1999 or, as he claims, was not notified until he received the copy of the decision from the Tribunal on 28th April 2006.
The timing is crucial, because if the Applicant was notified in 1999, the Court lacks jurisdiction to hear the application because it is out of time, and irrevocably so. Section 477 of the Migration Act provides that applications to this Court in relation to migration decisions must be made within 28 days of the actual notification of the decision. Under s.477(2) (a) and (b), the time limit may be extended for up to 56 days if it is in the opinion of the Court that it is in the interests of the administration of justice to do so. The Court may not extend the time further than 84 days after the actual notification of the Tribunal’s decision (s.477 (3)).
The application was not filed until 29th May 2006, more than six years after the Tribunal handed down its decision. If the Applicant was notified in 1999, or at any time prior to 1st December 2005, the transitional provisions in the Migration Litigation Reform Act 2005, Part 2 of Schedule 1 apply. Clause 42 provides that where proceedings are commenced on or after the commencement day (which is
1st December 2005) in relation to a migration decision made before the commencement day, and actual notification of the decision is given before the commencement day, s.477 of the Migration Act applies as if the actual notification of the decision took place on the commencement day. Thus, the Court would only be able to extend the time if the application were filed within 84 days of 1st December 2005. Quite clearly, 29th May 2006 is more than 84 days after 1st December 2005. Accordingly, the Court would have no jurisdiction.
However, if the Applicant’s contention that he was not notified until 28th April 2006 is accepted, an application filed on 29th May would still be out of time, but the position would not be irretrievable. The Court would still be able to extend the time for filing the application, because it is only 3 days out of time, or 31 days after actual notification.
The Court would have to be satisfied that it is in the interests of the administration of justice to extend the 28 day period.
Submissions
The Applicant maintains that he was not actually notified until he obtained a copy of the decision on 28th April 2006. He explained that he was still in detention and was hampered in preparing his application, not least by the fact that for a time the inmates of Villawood Immigration Detention Centre were temporarily relocated to premises at Holsworthy.
The solicitor for the Minister, Mr Cramer, has prepared a detailed submission in support of his contention that the Applicant had been notified prior to 1st December 2005. He pointed out that letters sent by the Tribunal to the Applicant between 19th November 1998 and
20th May 1999 were not returned undelivered. In particular, the Tribunal wrote to the Applicant by registered post on 20th May 1999 enclosing a copy of the Tribunal’s written reasons for decision. (Amended)
Mr Cramer went on to submit that even if the Court were not satisfied that the Applicant had not been notified prior to 28th April 2006, the Court should not exercise its discretion under s.477(2) to extend the time limit, notwithstanding that the application was only filed 3 days out of time. He submitted that the Court could not be satisfied that it is in the interests of the administration of justice to extend the time because the grounds of the application do not disclose an arguable jurisdictional error. The Applicant filed an amended application on
3rd July 2006. Mr Cramer submitted that the grounds in that amended application do not contain a jurisdictional error. The Applicant did not attend the hearing of the Tribunal and the Tribunal decision shows that the Tribunal affirmed the delegate’s decision because of the inadequacy of the information provided by the Applicant.
The Applicant has, therefore, no arguable case for relief.
Conclusions
I have a degree of scepticism about the Applicant’s evidence that he was unaware of the Tribunal’s decision until April this year. However, I am not satisfied that it has been proved that he was actually notified prior to 1st December 2005 or 28th April 2006. The Tribunal forwarded correspondence to the address given in the application for review, but the Applicant denies that the addresses given were his. He says that they were the postal addresses of his mysterious migration agent, with whom he managed to lose touch.
The failure by the Applicant to make any inquiries from either the Department or the Tribunal for fear of being deported suggests a ‘wilful blindness’ on his part. Taking a strict interpretation of the requirement of actual notification however, I am unable to be satisfied that the Applicant was notified prior to 28th April, which he claims.
That being so, it is still necessary to consider whether it is in the interests of the administration of justice to extend the time.
The Minister’s solicitor argues that it is not because the Applicant does not have an arguable case for relief. It is clear that his case for relief is not a strong one, especially as he did not attend the Tribunal hearing.
As Kirby J said in Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251, it is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld.
An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court.[3]
[3] 136 ALR 251 at 256
It is perhaps fortunate for the Applicant that there will be time available this month for his case to be heard on a final basis. I take that matter into account, and I consider that it is in the interests of the administration of justice to hear the Applicant’s case on a final basis.
I propose to extend the time for the application until 29th May 2006, the day it was filed. I will list the application for final hearing at 10:00am on Wednesday 15th November 2006, and I will make directions for the filing of written submissions. It appears unlikely that the matter will take more than a couple of hours to hear. I propose to dispense with the requirement for the preparation of a Court Book, because the affidavit of Ms Blackman has the relevant documents annexed to it. If a sealed copy has not already been served on the Applicant, it should be served by Monday 6th November.
The Applicant should be aware that it is up to him to establish that the Tribunal fell into jurisdictional error, and he must attend Court on the 15th November 2006.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 3 November 2006
2
1
0