SZJLB v Minister for Immigration
[2006] FMCA 1722
•22 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJLB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1722 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – application for a show cause hearing under rule 44.12 of Federal Magistrates Court Rules 2001 (Cth) – whether explanation for delay – eight year delay in applying for judicial review – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth), rr.10.01(2), 44.12(1)(a) Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 417, 476 Migration Litigation Reform Act 2005 (Cth) |
| Applicant: | SZJLB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2735 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 22 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 November 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitor for the Respondents: | Ms A Nanson of Australian Government Solicitor |
ORDERS
The application filed on 27 September 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2735 of 2006
| SZJLB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 27 September 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 29 September 1998, affirming a decision of the delegate of the first respondent made on 24 June 1997, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZJLB”.
The application seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Act. The applicant sets out the following grounds of review:
1.The Refugee Review Tribunal had failed to apply the correct test in your analysis justice correlation in relation to Asylum Protection as well had failed to constructively exercise it is jurisdiction. The tribunal had made an error of law and had made a scale of decision that was manifestly unjust in relation to significant harassment, fear or persecution had existed.
2.The Tribunal did not consider whether the visa applicant had “Well-founded” relate to fear or persecution if the visa applicant would be returned back to his country People’s Republic of China of nationality of the Communist China National Party so that the applicant must be a democratic political opinions or defender human rights related with politics activists or religion in relation to Christian activists or member of a particular social group which it is reasonable to conclude that fear is risky likely to face becoming a prisoner to probable disappear if the applicant backs to there.
3.The tribunal unreasonably had rejected the visa applicant’s claim based on a disproportional fear. The Tribunal had erred in finding that the applicant is not a person to whom Australia has protection obligations it could be so the applicant could have not been prepared his case proper in that time but the applicant can soon satisfied evidence to the tribunal. It would be fine.
The respondents’ response to the application was:
a)The application has not raised an arguable case for the relief claimed [r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth)]
On 12 October 2006, the respondents’ solicitors filed a Notice of Objection to Competency:
The first respondent objects to the jurisdiction of this Court to try this application on the basis that
(a) the application is in relation to a decision of the second respondent dated 29 September 1998 (“the decision”) notification of which was received by the applicant on 29 September 1998.
(b) the transitional provision in item 42 of Pt 2 of Sch. 1 to the Migration Legislation Reform Act 2005 (Cth) (“the MLR Act) provides that where proceedings are commenced on or after the commencement day 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 1958 ( (‘the Act’) applies as if the actual notification of the decision took place on the commencement day;
(c) according to s.2(1) of the MLR Act, the commencement day of Sch.1 was 1 December 2005;
(d) the application for review was filed on 27 September 2006;
(e) contrary to s.477(1) of the Act, the application to the Federal Magistrates Court was not made within 28 days of the actual notification of the decision;
(f) an application for an order that the Federal Magistrates Court extend the 28 day period by up to 56 days as provided by s.477(2)(a) of the Act was not made within 84 days of the actual notification of the decision;
(g) by virtue of s.477(3) of the Act, except as provided by s.477(2) of the Act, the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in s.477(1) of the Act outside that 28 day period.
On 6 November 2006, an affidavit of Angela Margaret Nanson was filed. The affidavit was formally read into evidence. Annexed to the affidavit are copies of the following documents:
3. a) on 24 June 1997, a delegate of the first respondent made a decision refusing to grant of a protection visa to the applicant. On 30 June 1997, an application for review of that decision was lodged with the Refugee Review Tribunal (“the Tribunal”). The applicant gave his home address on that application as: 3/200 Railway Parade, Cabramatta”. The form also indicated that Priscilla Vu of Priscilla International Co. Pty Ltd was assisting the applicant and that copies of documents were to be sent to that adviser;
b) on 30 June 1997, the Tribunal wrote to the applicant at the address provided acknowledging receipt of the application, a copy of that letter was also sent to Priscilla International;
c) on 4 July 1997, a Further Statement from the applicant was received by the Tribunal;
d) on 29 June 1998, the applicant was invited to attend a hearing before the Tribunal and on 20 July 1998, a response was received accepting that invitation and a hearing was held by on 28 August 1998;
e) on 30 September 1998, the Tribunal handed down its decision which was sent to the applicant under cover of its letter addressed to him at the abovementioned address, with a copy to Priscilla International - the letter addressed to the applicant was later returned to the Tribunal marked “Left Address”;
f) on 22 October 1998, an application “for a Special Visa under s 417” of the Act was made in the name of the applicant and addressed to Mr Philip Ruddock MP the then Minister for Immigration and Multicultural Affairs;
g) on 30 June 1999, the applicant was informed that the Minister had decided not to consider exercising his power in this matter.
Submissions and Reasons
The applicant in these proceedings filed an application in this Court for judicial review of the decision of the Tribunal on 27 September 2006. The applicant first appeared before me for first court directions on
11 October 2006 when the issue of delay was raised by Ms Nanson for the respondents. The applicant had been placed in immigration detention in August 2006 which presumably prompted the filing of the application in this Court. The applicant appeared as a self-represented litigant, assisted by a Mandarin interpreter. I acknowledge that the applicant has been in Australia since February 1996, which is a long time, and a refusal of relief to him on discretion grounds would involve considerable hardship to him. Under r.10.01(2) of the Rules, this Court has power to hear and determine all or part of the proceedings on a final basis at the first Court date. However, I was not satisfied that the applicant was prepared or in a position to present his argument in respect of his delay in making his application to this Court at the first Court date. Consequently, the matter was adjourned to 22 November 2006 to enable the applicant to receive legal advice from a member of the Court-sponsored panel advice scheme. I believe the allocated panel member did visit the applicant in immigration detention. The applicant was also provided with written orders requiring him to file affidavit material to explain the delay.
The applicant appeared in Court today, again self-represented and with the assistance of a Mandarin interpreter. He indicated that he had an affidavit which had been prepared for him but it was unsigned and unfiled. I granted a brief adjournment to enable copies to be made for the respondents and the Court, and to allow the interpreter to read the affidavit back to the applicant to ensure that the document reflected his instructions.
After a brief adjournment, the applicant indicated to the Court that he wished to file the affidavit in Court on the understanding that he would subject himself to cross-examination by Ms Nanson. I permitted this cause of action, acknowledging that there were significant deficiencies in the form of the affidavit, however, this was the only document in the applicant’s possession which could put forward his case and explain the delay.
The applicant confirmed that he arrived in Australia on 2 February 1996 and applied for a protection visa on 14 February 1996. He also confirmed that a delegate of the Minister refused to grant him a protection visa on 24 June 1997 and that he applied for review of that decision on 30 June 1997. The applicant attended the Tribunal hearing on 28 August 1998 and a decision was handed down on 29 September 1998. Throughout this process, he was represented by Priscilla Yu of Priscilla International Co Pty Ltd, a migration agent. This is confirmed from the relevant documents annexed to the affidavit of Ms Nanson.
The applicant was then cross-examined about the circumstances in relation to the filing of a “special visa application” under s.417 of the Act, which is an application to the Minister to substitute a Tribunal decision with a decision favourable to the applicant. This was prepared by Priscilla Yu and signed by the applicant on 22 October 1998 at
Ms Yu’s office.(Annexure H, affidavit of Ms Nanson) The applicant confirmed these details under cross-examination. The contents of the s.417 application are substantially similar to the material submitted to the Tribunal on behalf of the applicant in support of his review application. Significantly, the s.417 application commences with the statement:
My application for a protection visa has been refused by the Refugee Review Tribunal (RRT) [RRT ref:V98/08705; DIMA ref: N96/000150]
I however understand that it is possible for Your Honor the Minister to grant the protection visa. I also understand that Your Honor the Minister will only exercise this discretion if there are strong humanitarian reasons why the visa should be granted to the applicant.(Annexure H, affidavit of Ms Nanson)
The applicant confirmed that it was his signature on each page of that document but was evasive when questioned about his knowledge of the protection visa refusal. When I questioned the applicant about when he became aware of the Tribunal decision, he made a number of conflicting statements including that he became aware of it when he was placed in immigration detention. He was unable to say who had brought this to his attention and finally conceded that the documents were not provided to him until after 6 November 2006, when
Ms Nanson’s affidavit was filed in these proceedings.
The significant problem facing the applicant is that of the time limit as altered by the Migration Litigation Reform Act 2005 (Cth). This places the application within the operations of the amended s.476 of the Act. This means that the time limit provided under s.477(1) applies such that an application “must be made to the Court within 28 days of the actual (as opposed to the deemed) notification of the decision”.
The Court has power under s.477(2) “to extend that 28 day period up to 56 days” if the application for an extension of time is made within 84 days of the actual notification of the decision, and the Court is “satisfied that it is within the interest of the administration of justice to do so.”
I believe that the applicant has been given every opportunity to prepare and provide the Court with an explanation which would justify his delay in commencing these proceedings. I am satisfied that the applicant was aware of the outcome of the Tribunal decision at some time in late September or October 1997. The applicant admitted to the Court that his migration agent pointed out to him that the protection visa may have to be obtained “by some other way”. I believe this confirms that the applicant was advised by his agent that he had been unsuccessful before the Tribunal, and that a direct application to the Minister was the most appropriate action.
Conclusion
Consequently, the application filed on 27 September 2006 must be dismissed on the ground that it is incompetent under the provisions of Migration Litigation Reform Act.
I am satisfied that an order for costs should be made in this matter.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application, fixed in the sum of $2,500.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 5 December 2006
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