SZJIZ v Minister for Immigration
[2006] FMCA 1523
•12 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJIZ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1523 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – objection to the competency of show cause application – application incompetent as filed out of time. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.477 |
| SZEKC v Minister for Immigration [2006] FCA 1065 |
| Applicant: | SZJIZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2605 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 12 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 12 October 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms H Dejean Australian Government Solicitor |
INTERLOCUTORY ORDERS
The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
The application is dismissed as incompetent.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2605 of 2006
| SZJIZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed on 15 September 2006. The application is supported by an affidavit filed on the same day, to which is attached a copy of the relevant decision of the Refugee Review Tribunal (“the Tribunal”). That decision was handed down on 21 February 2006. The show cause application asserts that the applicant was notified of the Tribunal decision on the date of handing down, 21 February 2006. In the light of that assertion, the Minister's response, filed on 22 September 2006, is that the Court lacks jurisdiction to hear the application.
In addition, the Minister filed a notice of objection to the competency of the application on the same day. That notice asserts that the show cause application was not filed within the time prescribed by s.477(1) of the Migration Act 1958 (Cth) (“the Migration Act”) and neither was it filed within the time prescribed by s.477(2)(a) of that Act for the purpose of seeking an extension of time. When the matter was called this morning on the first return date on the application I raised the Minister's objection with the parties. Despite some uncertainty the applicant agreed to me dealing with the notice today.
It was apparent from her statements from the bar table that evidence would be required in order for me to deal with the Minister’s notice. The applicant took up the opportunity to give oral evidence.
She proved to be a highly unreliable witness. Her evidence was internally inconsistent, vague and at times evasive. She contradicted herself on several key points during the course of giving her evidence. In particular, her initial evidence was not credible in relation to how the application to the Court came to be made. She acknowledged that the signature in Chinese characters on the show cause application and the supporting affidavit were hers but she denied any knowledge or understanding of the contents of either document. Nevertheless, some of the applicant’s evidence was plausible and, where indicated in these reasons, I accept it. I otherwise reject the applicant’s evidence.
The applicant was initially unable to explain who had made the application. The applicant gave evidence, which I accept, that the date appearing below her signature on the show cause application had been written by her but said that someone had subsequently changed it.
I note that while the day appears to have been changed the month and the year have not. On that basis I find that the applicant signed the application on some day in September 2006.
The applicant gave evidence that in about September 2005 she was referred to a person known to her as “Solicitor Xue”[1]. She was uncertain about the full name of this person, who is apparently a female. She was also uncertain as to the premises from which the person operated although she said they were in Chinatown near the Bank of China. The applicant said that the person agreed to help her in making a protection visa application and also in obtaining a Medicare card and tax file number. The applicant paid the person $630 for that assistance. I accept that evidence.
[1] There is no evidence as to the legal qualifications, if any, of this person
Ms Dejean, who appeared for the Minister, cross-examined the applicant and, in the course of that cross‑examination, tendered five documents. Those documents confirm to my satisfaction that the applicant made a review application to the Tribunal with the assistance of someone. That application instructed the Tribunal to correspond with her at an address of 238/460 Pitt Street in Sydney. The applicant denied any knowledge of that address but it is tolerably clear that it was an address chosen and used by whoever was then assisting the applicant. I so find.
On 13 December 2005 the Tribunal wrote to the applicant at her nominated address for service and invited her to a hearing[2].
The applicant denied any knowledge of that letter. However, she conceded that her signature appears on a response to that hearing invitation[3]. I find from that that the applicant was aware of the hearing that had been arranged by the Tribunal. She did not attend that hearing. The Tribunal decision, which is annexed to the applicant's affidavit supporting her show cause application, discloses that in consequence, because of insufficient information, the Tribunal was unable to make a decision in her favour.
[2] see exhibit R5
[3] exhibit R3
The applicant gave evidence that in late February 2006 she had a conversation on the telephone with the person known to her as Solicitor Xue who had, up to that point, been assisting her. The applicant said that Solicitor Xue asked for an additional $800 to take further action.
I accept that evidence. It is highly likely that that conversation followed receipt by the person known to the applicant as Solicitor Xue of a letter from the Tribunal dated 21 February 2006 advising of the Tribunal decision and providing a copy. I find, on the balance of probabilities, that it was in this conversation that the applicant was informed about the Tribunal decision.
The applicant gave evidence that she declined to pay any more money to the person known as Solicitor Xue and in fact that person provided no further assistance. She said that she had not spoken to Solicitor Xue since that conversation at the end of February. I accept that evidence. I then sought to explore with the applicant how the show cause application came to be made. Despite her initial protestations of complete ignorance on that subject the applicant then gave evidence that she had signed the form of application and affidavit in Solicitor Xue’s office in September or October 2005. As I understood her evidence, the proposition she invited me to accept was that she signed these documents in blank and they were filled in later. There are a number of difficulties with that evidence. The first is that if the evidence was truthful the application could not be competent.
The applicant could not have made a valid application to the Court in respect of a decision which had not yet been made. Secondly, the applicant had placed a date next to her signature on the application in the month of September 2006. Thirdly, if the applicant had completed the documents in Solicitor Xue’s office and presumably left them there, it does not explain how the application to the Court came to be transmitted to the Court because Solicitor Xue declined to provide any further assistance when the applicant declined to pay any more money. Finally, the form of application used for the application was only introduced by the Court on 1 December 2005.
The applicant eventually gave further evidence which is likely to be closer to the truth. She was taken into detention on 20 August 2006. She gave evidence that she decided to make an application to the Court in order to get out of the detention centre. I think it highly likely, and I find, that as a result of being taken into detention the applicant decided that it would now be a good idea to seek to challenge the RRT decision. Ultimately, the applicant gave evidence, which I accept, that the show cause application and supporting affidavit were prepared with the assistance of someone in the Villawood Detention Centre.
She ultimately agreed that the application and affidavit were prepared with her knowledge and on her instructions and that both had been read back to her. The handwriting on both documents, apart from the applicant's signature, is the handwriting of the person at Villawood who had been assisting her. It was that person who transmitted the application and supporting affidavit to the Court by facsimile. The applicant did not disclose the identity of that person. I find on the basis of that evidence that the applicant understood what she was doing when she completed her application or arranged to have it completed for her.
The statement in the application that the applicant was notified of the Tribunal decision on 21 February 2006 I accept as true. It is a necessary consequence of that finding that the show cause application was not filed within time either for the filing of the application or for seeking an extension of time. The Court has no power to grant an extension of time following 84 days from the notification of the decision subject to review. After that period expires the Court lacks jurisdiction to deal with a purported application and such a purported application is incompetent: SZEKC v Minister for Immigration [2006] FCA 1065.
It follows, and I find, that the show cause application filed on 15 September 2006 is incompetent and must be dismissed.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $1,200. Scale costs pursuant to the Federal Magistrates Court Rules 2001 (Cth) in this instance would be $1,000. However, in order to deal with the objection to the competency of the application a half day hearing has been required.
I accept that costs of $1,200 have been properly and reasonably incurred on behalf of the Minister when assessed on a party/party basis. The applicant is concerned about her ability to pay any costs order but did not otherwise wish to be heard.
I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $1,200.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 23 October 2006
0
1
2