SZJCU v Minister for Immigration
[2006] FMCA 1533
•16 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJCU v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1533 |
| MIGRATION – Review of the Refugee Review Tribunal – refusal of a protection visa – summary dismissal of show cause application as incompetent – application filed more than 84 days after notification of the Tribunal decision. |
| Federal Magistrates Court Rules 2001 (Cth) |
| SZEKC v Minister for Immigration [2006] FCA 1065 |
| Applicant: | SZJCU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2084 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 16 October 2006 |
| Delivered on: | 16 October 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr A Markus Australian Government Solicitor |
INTERLOCUTORY ORDERS
The Court directs that the name of the applicant is not to appear on the transcript.
The application is dismissed as incompetent.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application including any reserved costs, fixed in the sum of $2,500, pursuant to rule 44.15(1) and item 1(b) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2084 of 2006
| SZJCU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
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 Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was handed down on 1 June 2004. The applicant is from China and had made claims of persecution in relation to his practice of Falun Gong.
The applicant’s show cause application was filed on 28 July 2006. When the matter first came before me on 11 August 2006 it was immediately apparent that there was a problem. That is because the applicant had provided no answer to the question on the application form which asked when he was notified of the decision of the Tribunal. I explored this with the applicant on 11 August 2006. He ultimately asserted that he found out about the Tribunal decision in July 2006 after he had been taken into immigration detention at Villawood.
The Minister objects to the competence of the application. That is made clear in her response filed on 6 September 2006. I ordered that there be a preliminary hearing of the application today for the purpose of resolving the competence of the application.
The application is supported by two affidavits, purportedly by the applicant, both filed on 28 July 2006. The first affidavit made by the applicant on 17 July 2006 simply annexes the decision of the Tribunal and makes submissions. I received that affidavit today as submissions. The second affidavit made by the applicant on 28 July 2006 supports his contention that he was unaware of the Tribunal decision until recently.
Essentially, the applicant claims that he was dependent upon his migration agent to tell him about the Tribunal decision. He asserted in his affidavit that on 25 February 2004 he changed his address and informed his migration agent of that. This is apparently put forward to explain the assertion that the agent failed to contact the applicant to inform him of the Tribunal decision.
The applicant was cross-examined on his affidavit. His evidence was hopelessly inconsistent, contradictory and not credible. I have little confidence in any of the applicant’s oral or written evidence. He is not a witness of truth. Except as expressly stated in these reasons I reject his evidence. He denied the assertion in paragraph 1 of his affidavit that he changed his address on 25 February 2004 or, indeed, at all in 2004. He acknowledged that his residential address as disclosed in his protection visa application in the court book, which I also received as evidence, was correct. I accept that evidence. He acknowledged that the signatures purporting to be his on pages 9, 11, 21 and 30 of the court book were his. I accept that evidence. However, he denied that an identical signature on his review application on page 44 of the court book was his. He strenuously denied any knowledge of that review application or, indeed, of the decision on his protection visa application. Later, he said he became aware of the review application from his agent. Ultimately, he appeared to accept that he did make the review application. He acknowledged that the signature on the Response to Hearing Invitation Form on page 49 of the court book was his[1] but then denied ever having seen that document before.
[1] I accept that evidence.
The applicant asserted that apart from seeing his migration agent once when he provided instructions prior to lodging the protection visa application he had no face to face contact with the agent. He asserted that despite repeated attempts he was unable to speak to his agent by telephone and did not know where the agent’s office was.
Nevertheless, the applicant was able to and did make a review application to the Tribunal very promptly after his protection visa application was refused. He also promptly declined the hearing invitation that was sent to him and his agent. I note that the hearing invitation addressed to the applicant at his home address was returned to sender (court book, page 52). It follows, and I find, that the copy signed by the applicant was the copy sent to the agent. Notwithstanding the applicant’s denials, I find that he was in contact with his migration agent for the purpose of making his review application to the Tribunal and declining the hearing invitation.
There is no reliable evidence of when in fact the applicant was notified of the decision of the Tribunal. However, it is improbable that the agent who dealt promptly with the decision of the delegate and the resulting review application and with the hearing invitation would have done nothing with the notification of the Tribunal decision. I infer that the applicant was notified by his agent of the Tribunal decision some time in 2004.
I find that the applicant was notified of the RRT decision prior to 1 December 2005. He is therefore deemed to have been notified in fact of the Tribunal decision on 1 December 2005. His application was not filed within 84 days of that date. The application is therefore out of time and the Court has no power to extend the time for filing it beyond 84 days[2]. It follows and I find that the application is incompetent.
[2] SZEKC v Minister for Immigration [2006] FCA 1065
I will therefore dismiss the application as incompetent.
The application having been dismissed, costs should follow the event. The Minister seeks scale costs. The applicant did not wish to be heard on that question. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs in the sum of $2,500, in accordance with rule 44.15(1) and item (1)(b) of Part 2 of Schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 24 October 2006
0
1
1