SZJMA v Minister for Immigration
[2007] FMCA 410
•12 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJMA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 410 |
| MIGRATION – Refugee – actual notification – technical notification – migration agent – forged signature – application not out of time. |
| Migration Act 1958, ss.417, 424, 476, 477 Migration Litigation Reform Act, Cl.42, Pt.II, Sch. 1 |
| S354 of 2003 v Minister for Immigration and Anor (No.2) [2006] FMCA 1929 SZIVA v Minister for Immigration & Anor [2006] FMCA 1494 WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 210 ALR 190 SZICV v MIMIA [2006] FMCA 1063 SZBVC v Minister [2006] FMCA 834 SZEKC v MIMA [2006] FCA 1065 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 |
| Applicant: | SZJMA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2860 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 16 February 2007 |
| Date of Last Submission: | 23 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 April 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr. P. Reynolds |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The applicant’s application filed on 5 October 2006 be set down for final hearing.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2860 of 2006
| SZJMA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
I have before me an application filed in this Court on 5 October 2006 seeking review of the decision of the Refugee Review Tribunal ("the Tribunal"), said to have been made on 5 April 2002 which affirmed a decision of a delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.
The application to the Court puts forward the following as the sole ground of the application:
“I am a citicen of China. If I return to China, I will be the risk of suffering persecution by chinese Government (sic).”
Background
The matter was set down for hearing before me on 16 February 2007. Mr. Reynolds appeared for the respondent. The applicant appeared in person and was assisted by an interpreter in the Mandarin language.
At the commencement of the hearing I had before me:
1)The application filed on 5 October 2006.
2)The applicant's affidavit of 5 October 2006 which annexes a copy of the Tribunal's decision record.
3)A letter from the applicant dated 29 January 2007, sent to the Court (which I subsequently took to be in the nature of submissions) which asserts that the applicant had retained a migration agency to act for her in the process of application for the protection visa and before the Tribunal, and that the applicant had no personal knowledge of what occurred relevantly before the Tribunal. The complaint is summarised as “the agency did not apply for me properly”.
4)A Court Book (“CB”) filed on 3 November 2006.
5)The Minister's response filed on 13 October 2006, which opposes the application on the basis that the Court does not have jurisdiction to hear this matter, and relies on the provisions of s.477 and Clause 42, Part 2 of Schedule 1 of the Migration Litigation Reform Act (Commonwealth) 2005 for this purpose.
6)An outline of submissions filed on 22 November 2006 in support of the response.
Jurisdiction
At the hearing, I gave the parties the opportunity to make further written submissions. The Minister subsequently filed supplementary written submissions.
At the hearing, Mr. Reynolds pressed the issue of jurisdiction. The applicant responded by stating that, (not withstanding what was asserted in the application to the Court, that is, that notification of the Tribunal's decision was received in “2002”), she had not become aware of the Tribunal’s decision until after she had been detained by the Minister's Department in 2006. The applicant made a number of assertions reflecting what she had put in her written submissions. Essentially this was that due to her lack of English, and general lack of understanding of the process, once she had engaged the migration agency, that she was unaware of the progress of her matter before the Minister’s Department, and then subsequently before the Tribunal. She asserted further that she had been asked to sign a number of blank forms by the migration agent. Further, that other documents in the Court Book which she had only recently had an opportunity to peruse, showed that some of the signatures which purported to be hers were not hers. The applicant gave evidence from the witness box and was cross examined by Mr. Reynolds.
The application to this Court was made on 5 October 2006. Legislation relevant to the issue of jurisdiction is:
1)s.476 of the Migration Act (“the Act”):
“Jurisdiction of the Federal Magistrates Court
(1)Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2)The Federal Magistrate's Court has no jurisdiction in relation to the following decisions:
(a) a primary decision
…
(4) In this section:
"primary decision" means a privative clause decision or purported privative clause decision:
(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or
(b) that would have been so reviewable if an application for such review had been made within a specified period.”
2) s.477:
“ Time limits on applications to the Federal Magistrates Court
(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.
(2) The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
(a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
(b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3) Except as provided by subsection (2), 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 subsection (1) outside that 28 day period.
(4) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.”
Actual notice
The Tribunal decision was made on 5 April 2002. The application to this Court was made on 5 October 2006. The relevant legislative provisions require consideration of when the applicant was “actually” notified of the Tribunal’s decision. If this occurred before 1 December 2005, then the applicant had (by virtue of s.477(1)), 28 days from that date to make her application to the Court, or else the Court would lack jurisdiction to hear her matter. Clearly she did not do so.
Nor does the application to the Court by way of the appropriate part of the application form, seek an extension of the time for making the application (pursuant to s. 477(2)). In fact the applicant expressly indicated that no extension is sought.
In any event, even if such an extension had been sought, and the applicant had been actually notified of the Tribunal’s decision prior to 1 December 2005, any exercise of the Court’s discretion could only extend the relevant time by up to a further 56 days. In all therefore, the applicant would have had until 23 February 2006 to have made her application.
If the applicant was actually notified by 1 December 2005, then the relevant 28 day period would run from when she was actually notified. The issue in this case therefore turns on when the applicant was actually notified of the Tribunal decision.
Respondent’s position
In all, the respondent submits that the applicant was “actually notified” of the Tribunal’s decision either:
a) On, or by, 18 May 2002, being the date of a letter to the then Minister for Immigration seeking intervention pursuant to s.417 of the Act (see CB 75 to CB 76);
b) In the alternative, that as the application form submitted to the Court noted “2002” as the date of notification of the Tribunal’s decision, then the applicant did have notice some time in “2002”; or
c) Further in the alternative, that the applicant had actual notice on 11 August 2006 (being the date that the Minister asserts the applicant was also informed that the Tribunal had made a decision to refuse her application for review).
The respondent’s position is that in relation to (a) or (b) above, the date deemed to be the date of actual notification is 1 December 2005. Further, given that the applicant made the application to this Court on 5 October 2006 which is well after the 28 day period, and indeed outside the further 56 day period, within which the Court could consider granting an extension (which has not been applied for), that the applicant was out of time, and the Court has no jurisdiction to proceed. In relation to (c) above, the respondent’s submission is that the date of 11 August 2006, would still make an application on 5 October 2006 outside the 28 day period. As the applicant has not sought an extension of time falling within the subsequent 56 day period (s.477(2)) immediately following the initial 28 day period, it is not open to the Court to grant any such extension in any event.
In support of each of the three alternative dates, put forward by the Minister as to when actual notification occurred, the Minister generally relies (not exclusively) on the applicant’s evidence to the Court. This is described as being “contradictory and vague”, that the applicant “failed to give direct answers”, “changed her answers” and “was unconvincing in her explanations”. In all, I took the Minister’s position to be that after hearing, observing, and assessing the applicant’s evidence and her demeanour during the hearing before the Court, that the Court should form the view that the applicant’s evidence in critical aspects lacked credibility.
Applicant’s credibility
As a general observation I agree with the respondent’s submission, that the applicant’s evidence was, at least in part, confused and did contain some answers where the applicant responded by saying she did not “know”, or could “not remember”. In some particulars, her evidence did contain some seeming contradiction.
But I do not agree with the specific submission that the applicant’s demeanour in the witness box provides a basis for impugning the applicant’s credibility. Nor do I accept what is implicit, at least in the respondent’s submission, that the confused, vague, and even contradictory nature of the evidence should lead the Court only to a position of doubting the applicant’s credibility.
Having had the benefit of hearing, observing and assessing the applicant’s evidence and her demeanour, and when viewed in light of all the relevant circumstances, what clearly came through all of this, in spite of the adverse aspects raised by the respondent now, is that having come to Australia, she left matters (the application to the Minister’s Department, and the Tribunal) in the hands of her migration agent, and that she was reactive to her migration agent in the course of the progress of her matter through the Minister’s Department and the Tribunal. I found this aspect of her evidence (at least), had the “ring of truth” about it. When the applicant put to the Court, at the conclusion of her evidence that it should “trust” her, I understood this to be an assertion with relevance to her claim, that she was subject to the actions of her agent and in that sense did not play an active part in the prosecution of her application before, relevantly, the Tribunal.
I am further persuaded to this view by the following circumstances. The events put forward by the applicant in her evidence can be viewed in the context of a person who is from a non English-speaking background, whose ability in, and grasp of, the English language is at best poor, and indeed appeared negligible, and who applied to Australian bureaucratic and judicial processes an understanding which was consistent with and seen through the prism of, her experience in her homeland, that is the People's Republic of China. The applicant's evidence in this regard was that:
“I lodged my application as soon as I arrived in Australia. At that time I know (sic) nothing about the process of refugee application so I authorise my agent to deal with the application on my behalf”
It was quite plain (I believed her evidence in this regard) that the applicant saw the relevant processes in Australia as being a mirror of what occurs in China. For example, when she was asked as to why she signed “blank” forms, (the evidence was that the migration agent had given her a number of “blank” forms – essentially the applications to the Minister’s Department and the Tribunal – and she signed them in that state), that it never occurred to her that a document “to a government” should be completed before she signed it, the applicant’s very clear answers were that she saw “all those functions” as being authorised by the Australian government, just as in China. In her evidence, applications to relevant government authorities, of which she saw the Tribunal as plainly being one, and to the Courts, required government “authorisation”. In part, the applicant explained:
“I believed in China immigration agent is (sic) part of the function of the Court and I thought they were government bodies"
Further:
“I used the same concept as I had in China"
In my view much of what is characterised now in submissions by the respondent as implausible, inexplicable or confused, is explained when the applicant’s background and circumstances are properly taken into account. In assessing the applicant’s evidence, I take the view that some of the contradictions and deficiencies in the applicant’s evidence can be explained, and in my view are explained, by reference to the circumstances of an applicant from a non English-speaking background, with little command or understanding of English, and even less understanding of bureaucratic and judicial processes in Australia. Indeed her view of such processes was coloured by the only relevant experience that she could draw on, that is her experience in China, which in my view satisfactorily explains much of what the Minister now seeks to rely on as being adverse in her evidence.
I will pursue these issues further as relevant when considering each of the Minister's arguments in support of the lack of competency of this Court to hear this application.
Actual notification: On or before 18 May 2002
The Minister’s first assertion in support of the contention that this Court lacks jurisdiction to consider the application, is that the applicant was notified of the Tribunal’s decision on or before 18 May 2002. The respondent asserts that on that date, the applicant wrote to the first respondent requesting the exercise of discretion pursuant to s.417 of the Act. As a consequence the applicant necessarily must have been aware of the Tribunal’s decision in order to have made this request. The Minister asserts by way of submission that a “section 417” request cannot be made until after the Tribunal has made an unfavourable decision. A copy of this letter to the then Minister is reproduced at CB 75 to CB 76. The Minister’s response is at CB 77.
In evidence before this Court, the applicant stated that her migration agent “forged” her signature on this document, and that she was unaware of it. Consequently, she cannot be said to have had notice personally of the Tribunal’s decision. The Minister's contention was that the applicant was not a truthful witness, that she changed her evidence, was unconvincing in her explanations, and that her evidence should be rejected.
I have already set out above my difficulty in generally accepting the Minister’s submission in this regard. In looking at the Minister’s specific examples relevant to “18 May 2002” as being the date of actual notice, (noting that the Minister’s submission is that this is not an exhaustive list):
a) The Minister asserts that it is implausible that a migration agent would procure signed “blank” forms from the applicant on several occasions (as was her evidence), and then “fraudulently forge the applicant's signature” on other documents.
(i)I understood the implication to be that if the agent had already embarked on a course of procuring signed “blank” forms, that it is implausible that such an agent would then fraudulently need to forge the applicant’s signature. Presumably, because he could, in the alternative, have procured further “blank” forms.
(ii)I do not accept the Minister’s submission in this regard. It is equally plausible that such an agent who would act in the way of obtaining the signature of an applicant on a “blank” form, to equally act in the way that the applicant now asserts. That is to forge her signature.
(iii)Further the nature of the two sets of documents is demonstrably, and plainly, different. A form already created with a space for a signature, is quite different to a letter drafted by the adviser. For the implausibility that the Minister suggests to be consistent between the two sets of documents, would require that the agent would have asked the applicant to sign a blank piece of paper which then would have been “typed around” to create the letter.
(iv)In any event in spite of the confused aspects of her evidence, I believe the applicant’s explanation that she left matters in the hands of her migration agent, whom she plainly believed to be better placed than her to proceed with her applications given her lack of knowledge and understanding.
b) For same reason, I do not agree with the Minister’s characterisation of the applicant’s evidence that she attended the agent’s office on numerous occasions and signed blank forms without questioning what they were, that is, that this “defies belief”. In context this appears to me to be quite consistent with an applicant who has left her fate entirely in the hands of a migration agent
c) The Minister also relies on the applicant’s evidence that the signatures appearing on the documents reproduced at CB 30 (the applicant’s passport), but in particular, CB 31(the authorisation of the migration agent to act for the applicant), CB 49(the applicant’s declaration in the application to the Tribunal) and CB 55(the response to the Tribunal hearing invitation form), are her signatures, and that the signatures at CB 49 and CB 55, were her signatures, and that this contradicts her claim that she did not know that the Tribunal proceedings were on foot. Further, the Minister contends that there is no apparent difference between these signatures which the applicant has agreed are her signatures and other signatures on documents in the Court Book. The Minister relies on Larg v Beardsmore [1968] NSWR 673 at page 691 per Walsh J, that it is permissible for a trier of fact in a civil case to compare for itself writings to see if they are similar or not and submits that all the signatures reproduced as relevant documents in the Court Book are in fact those of the applicant.
(i)The signatures purporting to be the applicant’s signatures, appearing in the material in the Court Book, with what the applicant said in evidence as to the signature at each document, is as follows:
1)CB 9, CB 11, CB 22 (application for a protection visa to the respondent’s Department):
not put to the applicant in cross-examination2)CB 26 (a statement attached to the application):
the applicant said was not her signature.3)CB 30 (the applicant’s passport):
the applicant said was her signature.4)CB 31 (authorisation given to the migration agent to act on her behalf):
the applicant said was her signature.5)CB 49 (application to the Tribunal):
the applicant ultimately, said was her signature.6)CB 55 (the response to hearing invitation form):
the applicant said was her signature.7)CB 75 to CB 76 (the “s.417 letter” to the Minister): the applicant said was not her signature.
(ii)The above emerged during cross examination, not in any sequential fashion, but is drawn from various parts of her evidence.
(iii)What emerges from the above is that the applicant gave consistent evidence in relation to each individual signature. Those signatures appearing on documents which were forms, were her signatures, and those signatures appearing on either a statement or a letter (not a form), were not her signatures. This is entirely consistent with the applicant’s other very clear evidence that she left matters to her agent, responded to direction to sign “blank” forms, and knew nothing about other documents which were not in a “form” format. That the applicant agreed that the signatures on the “Application to the Tribunal” and “Response to the Hearing Request” were her signatures, must be heard in context with the other evidence given by the applicant in explanation. In this context the fact that these forms have her signature does not tend to the conclusion that she actually knew about the nature and impact of these documents. It is consistent with the applicant’s clear account that she had no knowledge or comprehension of what was going on, other than that she had applied for a protection visa, and had responded to direction from the agent (often through the agent’s receptionist or secretary) to sign “blank” forms.
(iv)The Minister further invites the Court to find that all the signatures in the Court Book are the “same”, and are in fact the applicant’s signature. The Court is not an expert in document examination, or in handwriting recognition. The Court has no knowledge of Chinese characters, other than perhaps to generally identify such characters as possibly being Chinese characters. If the Minister was going to seek to rely on arguments asserting some inconsistency between signatures which the applicant has agreed are her signatures, and signatures which she has stated are not her signatures, then it was always open to the Minister to have brought before the Court some expert evidence. I note that in some cases involving the Tribunal, and decisions of the Minister’s delegate before this Court, the Minister and the Tribunal have utilised the resources of his document examination laboratory.
(v)Nor has the Minister produced to the Court the original documents from which the photocopies reproduced in the Court Book were obtained on, which even a layperson’s observations can be properly made. The quality in particular of the reproduction at CB 49 is not good. It is not surprising that the applicant at first said she was unsure as to whether this was her signature or not. Further, even to the Court’s inexpert eye, in comparing the two signatures at CB 49 and CB 50, the third in line of the characters appears to be different in the two documents. I believe and accept the applicant’s evidence that the signatures in those documents which are on “forms” are her signatures, and the signatures appearing in those documents which are statements or letters are not.
d) The Minister also asserts that the applicant’s evidence to the Court was that she did not sign the letter to the Court dated 29 January 2007 (which I took to be in the nature of submissions), and that that letter contains, for the first time, the applicant’s statement that the migration agent forged her signature, and procured her signatures on “blank forms”. The Minister’s position is that the applicant “deliberately” did not sign this document because she did not want to provide a “sample signature” with which to compare the signatures she now alleges were forged.
(i)I am not persuaded by the Minister’s argument in this regard. I cannot see that what the Minister seeks to make of the assertion that this was the first occasion on which the applicant stated that the migration agent had forged her signature and procured her signature on “blank” forms can be directly, and necessarily, linked to this letter not containing her signature. What must be remembered, in addition to the fact that the applicant is unrepresented before the Court, again, is that she comes from a non English speaking background, is unfamiliar with Australian administrative and legal processes, is that in addition at the time of the drafting of this letter, the applicant was detained by the Minister at the Villawood Immigration Detention Centre (“VIDC”) from which she sent her letter to the Court.
(ii)In this context, having made her application to the Court, which, on the applicant’s unchallenged evidence, was done with the assistance of others while she was in detention, after having been told at the first Court date that the hearing of her application was set down for 16 February 2007, she sent further detail of her complaint in writing to the Court on 29 January 2007. I cannot see in these circumstances that anything adverse for the applicant can be made from the fact that she made her claim by way of this letter, and did not include it with her original application. Nor that this “submission” did not contain her signature.
(iii)When this was put to the applicant in cross examination, the applicant’s response was to assert that she was not aware that this document needed to be signed. Nor, in the circumstances, do I accept the implication in the Minister’s submission, that the coincidence “between the first time that she stated that her signature had been forged coincided with the first time that she submitted a document without a signature on it”.
(iv)In all, I believe the applicant’s account that she was not aware that this document required any signature, which again was consistent with the other evidence that when she signed a document in the past (albeit a blank form) that she did so under direction.
e) The Minister further asserts, by way of submission, that the applicant was “deliberately evasive” in cross examination when asked about the circumstances involving her interaction with her agent, and further, the preparation of her present application. The assertion is that she repeatedly failed to answer “the question asked”, and did not respond to “a number of pertinent and straightforward questions”. The Minister's submissions do not particularise this assertion.
(i)Again, (for the reasons set out above), I have some difficulty with the Minister’s characterisation of the applicant's evidence in relation to the interaction with her agent and of the preparation of the present application to the Court.
(ii)It is certainly clear that the applicant’s evidence was that she was introduced to the agent by someone else, and only attended rarely at the agent's office, and could not remember the exact address.
(iii)It is not in dispute that the applicant arrived in Australia on 3 December 2001 (CB 13) and the application to the Minister's Department for a protection visa was made on 11 December 2001. The migration agent/adviser who was involved in the making of the protection visa application (CB 31) appears to be the same adviser who was the adviser at the time of the making of the application to the Tribunal (CB 47). Her matter was before the Tribunal in April 2002.
(iv)Nothing in the applicant’s demeanour before this Court, the manner of making her responses, nor in the answers she gave to these relevant questions, could in my view be characterised as “deliberately evasive”. The applicant was being asked, nearly five years after the matter was before the Tribunal, to remember an office address in English which she would have seen for the first time about a week after her arrival in Australia. I did not see her answers as being evasive when she said she could not remember the exact address of the agent’s office, and did not know the full address. The applicant’s description of features of the office and surrounding streets that she did remember, in my view, were consistent with how a newcomer to this country, with no capacity in English (see CB 12.1) would remember a particular office at least five or so years later. That is, with references to a street with a “golden tree stump”, and a building with dual entries. By contrast, the applicant had no difficulty in responding that she lived in Campsie at the time of the making of her applications to the Minister’s Department.
(v)Nor, similarly, do I accept that her answers to questions relating to the preparation of the application to the Court, show deliberate evasion. The applicant’s evidence was that she did not know of the Tribunal's decision until after she had been detained by the Minister's Department in the VIDC sometime in 2006.
(vi)At one point in cross-examination the applicant did give the subsequently confusing evidence that she did not learn of the Tribunal’s decision until after she was given a copy of the Court Book. Not unnaturally the Minister’s representative sought to make the point that the applicant would have needed to have made the application to the Court (and therefore have known of the Tribunal’s decision) before the Court Book could have, and would have, been prepared. At the time of putting these questions to the applicant, the Minister's representatives were in possession of certain documents that were not before the Court in the bundle of documents contained in the Court Book. The Minister subsequently filed, on 23 February 2007, after the hearing, a Supplementary Court Book (“SCB”) that contained copies of communications (dated 28 September and 4 October 2006) from the applicant to the Tribunal requesting the Tribunal’s decision record. I should just note that I agree with Mr. Reynolds that the relevance of the applicant’s request (and of other documents now in the Supplementary Court Book) came about because of the applicant’s submission of 29 January 2007, so no criticism can be made of the Minister for not including these documents in the Court Book.
(vii)But on the other hand, the applicant’s apparent confusion in her evidence on the specific issue of when she knew of the Tribunal decision in order to be able to make an application to the Court (which she had first impossibly asserted was after obtaining the Court Book in these proceedings) was subsequently, in my view satisfactorily explained by the applicant that when she became aware of a negative Tribunal decision against her, after she was taken into detention, that she took steps to obtain a copy of the decision. (I will return to this issue below as it is also relevant to another head of the Minister’s submission, that is, the Minister’s reliance on the applicant having notice of the Tribunal decision on 11 August 2006).
The issue before the Court now, for the purposes of s.477, was whether the applicant had actual notice of the Tribunal’s decision (as opposed to deemed notice) on or before 18 May 2002, being the date on which the Minister asserts the applicant wrote to the then Minister requesting an exercise of discretion pursuant to s.417 of the Act.
In S354 of 2003 v Minister for Immigration and Anor (No.2) FMCA 1929 (“S354”), a matter dealing similarly with the issue of jurisdiction and s.477, I agreed with FM Smith’s approach in SZIVA v Minister for Immigration & Anor [2006] FMCA 1494 at [16] to [30] (“SZIVA”) and adopted that approach in S354 (see [20] of that Judgement). In particular, I note what FM Smith said at [30] in SZIVA:
“I must now consider the content of the added requirement that a date must be identified when a technically sufficient notification has also achieved "actual notification.”
I turn to consider whether the applicant was actually notified of the decision on or before 18 May 2004, both in terms of the Tribunal having met its statutory obligations in regard to the giving of notice of its decision in the “technical” sense, and in the sense of the applicant having been actually notified.
The material before the Court shows that the applicant nominated “Wayne Han” of “Chinese Legal Affairs Consultant Pty Ltd.” as her “authorised recipient” of correspondence for the purposes of the application before the Tribunal (CB 47). The application to the Tribunal was made on 22 January 2002, and was made after the introduction of s.441G to the Act, which became operational on 10 August 2001. That section provides that if a person who applies for a review notifies the Tribunal that another person is authorised by the applicant to do things on behalf of the applicant, including the receiving of documents, then the Tribunal must give the authorised recipient, instead of the applicant, any documents that it would otherwise have given to the applicant.
The material before the Court reveals that by letter dated 11 April 2002, and sent by registered post, the Tribunal sent notification of its decision to the applicant’s authorised recipient. There is nothing before the Court to show that the Tribunal failed to comply, in addition to s.441G, with the relevant requirements of Division 5 of Part 7 or the relevant parts of Division 7A of Part 7 of the Act. The Court can be satisfied therefore that “technical” notification of the decision did occur some time prior to 18 May 2002 (that is sometime in April 2002). But as set out above consideration must also be given to when a “technically sufficient notification” has also achieved “actual notification”.
What the Court is not satisfied about is that the applicant was actually notified of the Tribunal decision on or about 18 May 2002, to the extent that this assertion relies on the letter to the then Minister seeking intervention pursuant to s.417 of the Act. For all the reasons as set out above, I accept the applicant’s evidence that her knowledge of the progress of the application both through the Minister's Department and then subsequently through the Tribunal, was limited, and at the control of her migration agent. I believe the applicant’s evidence that that the migration agent did not tell her of the adverse Tribunal decision at the time of the letter being sent to the Minister (18 May 2002).
In S354 (at [38]) I took the view with reference to WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190 (“WACB”), that it is for the Minister to shoulder the burden to show why, that an application such as the one before me now, should be dismissed as incompetent. In the case before me, the burden is on the Minister to show (on the balance of probabilities), that the applicant had actual notification of the Tribunal decision prior to 1 December 2005. On what is before me, I am not satisfied that this burden has been discharged by the respondent asserting the applicant was actually notified on or before 18 May 2002, simply, by relying on the letter requesting Ministerial intervention. In my view the applicant’s evidence that she relied on her agent, and had no knowledge of this request, and that the signature on it was not her own, remained on balance, and when viewed in context as set out above, as believable. On what was put before me the Minister’s submission in reliance on this letter to show actual notification does not succeed.
Actual notification: “In 2002: ‘on an unspecified date’ ”
The Minister’s alternative submission was that the applicant was notified some time in 2002 “on an unspecified date”. The Minister relies on the present application to the Court which states that the date when notification of the decision was received by the applicant was “2002”. The Minister’s submission is that this is an express admission by the applicant that she was actually notified of the Tribunal’s decision sometime in 2002, and plainly, this is well before 1 December 2005, which for the purposes of s.477, is the relevant date from which the 28 day period commences for the making of the application to the Court. The Minister rejects the applicant’s evidence that the application form to the Court was “filled out” by someone else, and that she was unaware of the content of that application, and that she thought specifically that this date was a reference to the date of the decision.
The Minister again relies generally on the submission that the applicant was not a witness of truth and that her evidence in this regard should be rejected for this reason. In particular (and again submitting not exhaustively), the Minister seeks to rely on the following:
a) The applicant in cross examination confirmed that the application to the Court (relevantly with the reference to “2002” as the “date” of notification) was reliable. The Minister submitted that it was only after the date of notification stated in the application was pointed out to her that she stated she did not understand the content
(i)The applicant’s evidence was that the application was prepared with the assistance of others in the VIDC. Relevantly, the answer to the question as to when notification was received was put down as “2002” (and it must be noted that “2006” had been the original answer and this was crossed out), because she thought that what was being asked was relevant to the date of the decision.
(ii)The Minister’s assertion now is that the applicant “initially confirmed to the Court that the present application was a reliable document and that she stood by its contents and that it was only after it was drawn to her attention that the application stated that the date of notification was “2002” that she stated that she did not understand its content”. This is factually correct.
(iii)However, in context, I am not persuaded by the Minister’s submissions on this issue (as with other issues) that the applicant’s evidence was unreliable.
(iv)In a number of Tribunal decisions that have come before this Court, it is clear when reading a transcript of a hearing before the Tribunal, that Tribunal members sometimes employ the approach of asking an applicant to generally confirm the contents of an application for a protection visa, or some other relevant document, then during the hearing to point to some particular aspect in detail, and then when the applicant seeks to resile from this detail, the Tribunal then relies on what is often described as an inconsistency of the applicant’s evidence to form an adverse view of credibility. In many cases this may be an effective means by which a Tribunal may be able to determine the veracity of an applicant’s claims, indeed prior inconsistent statements often figure in matters before the Courts generally. But I am not satisfied that such an approach, which was employed in the cross examination before me, was helpful in the circumstances of this case.
(v)Other and separate questioning on this issue elicited the applicant’s answer that she became aware of the Tribunal’s decision after receipt of the Court Book. The applicant then separately confirmed that she had been detained by the Minister on 11 August 2006, and that it was only after that time, that she was told that her application to the Tribunal had been unsuccessful. The applicant was then asked how she became aware of the Tribunal’s decision after being detained and she answered that she received a copy of the decision from the Tribunal after requesting it from the Tribunal (“I got a fax from them”). It was at this point that the documents (which now comprise the Supplementary Court Book (“SCB”)) were put to the applicant. This includes requests sent by the applicant from the VIDC to the Tribunal by facsimile transmission for a copy of the decision record (See SCB 1 and SCB 5).
(vi)If the Minister now seeks to rely on what is said to be the applicant’s confused and inconsistent answers to assert an attack on the applicant’s credibility, then such an assertion would have been in a much stronger position had these documents (which were plainly relevant to the issue of actual notice as it went to the Court’s jurisdiction) been put either in the Court Book, or particularly and at least, to the applicant prior to the time of the relevant questions being put to her.
b) In sub-paragraphs (b), (c) and (d) of paragraph 10 of supplementary written submissions, the Minister asserts that the applicant was evasive about the circumstances in which the application to the Court was prepared, that she was unable to explain why the year “2006” was crossed out in the application and replaced with “2002”, and was unable to explain why there was no reference in the application to the Court to her migration agent’s failure to inform her of the Tribunal’s decision. The Minister asserts that this is “a recent invention” to avoid the time limit in s.477.
(i)The Minister’s questioning sought to elicit an explanation from the applicant to explain why, when she was seeking relief by way of the application to the Court, she “blamed her lack of knowledge of English” (see the application at page 4) and did not put in the application any complaint that her lack of knowledge of the Tribunal’s decision was because of the action, or inaction, of the migration agent.
(ii)The applicant’s explanation was that she had to ask someone to write the application for her, and that while what was in the document was “roughly explained” to her, and that it was an application on her behalf, she did not know the exact detail of what was in the application. When pressed, the applicant said that the application was “filled by refugee applicants in there” who “roughly” explained what was contained in the application.
(iii)Subsequent questioning about whether the document was reliable did not detract from the applicant’s consistent and clear evidence which stressed her inadequacy with the English language, and that once she had received the Tribunal’s decision record while in immigration detention, she obtained assistance from others in the VIDC, who filled out the form for her. While she generally knew of what was in it, she did not know the detail. That the applicant asserted, at one earlier point in answer to a general question that what was in the application was “reliable” and then in answer to other specific questions on detail, that it was not, is in my view, not sufficient to override the other clear evidence of the applicant which I accept.
(iv)Further, the applicant did explain why “2006” was crossed out and “2002” substituted. From what the applicant said, there was some confusion at the date of the drafting of the application as to what exactly was meant by the relevant question as to notification. The Minister’s contention simply was that the crossing out of “2006” and replacement with “2002” suggests that the applicant was alerted to the question of notification and therefore “2002” was deliberately substituted for that purpose, on its own, is insufficient to overcome the applicant’s explanation. If the applicant had been so alerted, then consistent with the Minister’s position that the applicant had a level of understanding of the relevant processes and acted with deliberation to mislead, would have seen the applicant fill out a “clean” application form, rather than the clumsy presentation with which she persisted and which would invoke precisely the response now seen from the Minister.
(v)That there was confusion amongst those assisting the applicant and the applicant herself is further supported by those other parts of the application which contain similar crossing out and substitutions. Clearly another name as to the relevant decision maker is crossed out, and the name of the presiding Tribunal member is inserted. As to the date of decision the date “08/09/2006” is crossed out and a date of “05/04/2002” is inserted. In line with this it is perfectly consistent in my view when on the very next line, in answer to the question of when notification of decision was received by the applicant, “2006” is crossed out. This correlates with the crossing out of “08/09/2006” above it, and “2002”, which is consistent with “05/04/2002” above it, is then put in its place.
(vi)In my view, this presentation is consistent with the applicant’s evidence that the application was drafted by other refugee applicants in the in the detention centre and that there was some confusion as to what was being asked for, and what should be provided. I accept her submission that the reference to “2002” was a reference (made in error) to the year of the making of the Tribunal’s decision.
In all, I did not see the applicant, or perceive her either by demeanour or by what she said, as being evasive as to the circumstances in which the document was prepared. Her evidence was very plain. A group of other refugee claimants in VIDC assisted with the drafting of the form, the form was actually filled in by someone else, and that while she generally knew of what was in it, she was not aware of the specific detail. Nor given what I have said above, do I accept that the applicant was unable to explain why “2006” was crossed out and replaced with “2002”.
Nor do I accept that the applicant’s failure in the application to refer to the migration agent’s failure is an issue that goes to support the Minister’s contention of a lack of credibility on her part. In my view, the applicant’s reference in the application (remembering that it was drafted by someone else, evidence that was not challenged by the Minister) the fact that she had negligible knowledge of English, is consistent with her subsequent, and as I have already set out above timely, further detail by way of submission to the Court, that in a context of not knowing English, she relied on her agent and was not aware of his handling of the her case.
On balance, I believe the applicant’s account as to the drafting of the application to the Court and accept her explanation that the year “2002” was substituted for “2006” because of some misunderstanding as to what was required. In all the circumstances, it must be remembered, that the applicant before the Court is a person from a non-English speaking background who is not familiar with legal processes in Australia, and who, on her evidence which I accept, saw the bureaucratic and legal processes involving an application for a protection visa through the prism of her understanding and experience of such processes in her home country. That this led to misunderstandings and confusion on her part, as to what was happening both in context of the application before the Minister’s Department, the application for review, and relevantly in relation to this particular submission, the application to the Court, is in my view understandable. In all therefore, I do not accept that the Minister has satisfied, on the balance of probabilities that the applicant was notified of the Tribunal decision on an unspecified date sometime in 2002.
Actual notification: 11 August 2006
The Minister’s further alternative submission was that the applicant was notified of the Tribunal’s decision on 11 August 2006. The Minister submits that the applicant’s evidence before the Court was that she became aware of an adverse Tribunal decision when she was detained on 11 August 2006, and that she was therefore actually notified on 11 August 2006 of that decision. The Minister’s position is that s.477 requires notification of the Tribunal’s decision only, and does not require a copy of the reasons to be provided to the applicant for the relevant time period to commence. The Minister invites the Court to give effect to the “express words of the legislation”. The Minister’s argument was that if the applicant was actually notified on 11 August 2006 then the filing of the application to the Court on 5 October 2006 falls outside the 28 day period provided for in s. 477(1).
The Minister also argues that while it falls within the further 56 day period provided for in s.477(2), that in relying on SZICV v MIMIA [2006] FMCA 1063 at [65] to [66] (see also the Full Federal Court in SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39), and that given that the applicant has not sought the required extension of time prior to the expiry of the further 56 day period (84 days in total) provided for in s.477(2), then it is not open to this Court to permit the applicant to amend the present application. The Minister further relies on SZBVC v Minister [2006] FMCA 834 and SZEKC v MIMA [2006] FCA 1065 which Cowdroy J. upheld a similar decision by Driver FM.
The issue therefore is, whether the applicant was actually notified of the Tribunal’s decision on 11 August 2006 for the purposes of s. 477.
The applicant’s evidence was that the when she was taken into immigration detention on 11 August 2006, she found out about the adverse Tribunal decision by being told by some unidentified person or persons at the detention centre that she had been unsuccessful.
The applicant then appears to have been involved in some matter before the Migration Review Tribunal (“MRT”). There is no other evidence before the Court of any other application to the MRT. The applicant’s evidence was somewhat confused in this regard. In context, given that the applicant was in immigration detention and given what the applicant said, it appears that the applicant was told (in context of what she said, by either immigration officials or agents of the Minister at the VIDC), that this involved some application presumably for a bridging visa E to have enabled her to be released from detention. The applicant’s evidence was that she was told that she may be able to lodge another application to the Tribunal and was then asked for “a deposit” of $35,000. She didn’t have this money, went (presumably) to the MRT to ask them to reduce the amount, but “the decision remains the same”. I took from the applicant’s evidence, that on what she had been told, there was in her mind some connection between the (Refugee) Tribunal and the “deposit” for her to be able to be released from detention, and that it was linked with being able to make another application to the Tribunal.
When it became clear to the applicant that she would not be released from detention, the applicant then sent a request to the Tribunal, seeking that the Tribunal send her the Tribunal’s decision record “as soon as possible”. From the facsimile note at the top of that page, it appears this request was made on 28 September 2006 (SCB 1). It appears that the applicant may have given some incorrect details to the Tribunal which led to some small delay in responding. In any event the applicant again sought the Tribunal decision record by facsimile sent on 4 October 2006 (SCB 5). From her evidence, she appears to have received this and was able to then make the application to this Court on 5 October 2006. This was done in circumstances, which from her own evidence were as follows: that she asked someone to fill out the form for her and that a person “roughly explained” what he was writing in the form and that this occurred after he had asked her to a obtain a copy from the Tribunal. The application was then filed in this Court on 5 October 2006.
I should just note I saw the applicant’s confusion in relation to the above – at [40] – as consistent with the applicant’s claim that she had, and has, little or no understanding of relevant administrative and bureaucratic processes in Australia.
From the evidence before the Court therefore:
1) The applicant became aware of the adverse Tribunal decision on 11 August 2006 or soon thereafter.
2) The applicant pursued an application for release from the VIDC which ultimately went before the MRT in circumstances where the applicant appears to have been confused as to the relationship of such action to her capacity to seek further review by the Tribunal.
3) In any event, on 28 September 2006 she sought from the Tribunal the decision record for the express purpose of:
“I want to apply the Federal Court” (SCB 1)
and followed this with another request on 4 October 2006:
“I am writing to you about I want a copy of my documents RRT. Because my case was completed the review by RRT and I was refused, I need copy of my documents back and I want apply the Federal Court. Can you fax to me the RRT decision record.” (SCB 5)
The question therefore is, whether the applicant becoming generally aware of an adverse Tribunal decision on or about 11 August 2006, constitutes actual notification of the Tribunal decision for the purposes of s.477(1). The Minister asserts that the express words of s.477 require notification of the Tribunal’s decision only, and do not require a copy of the reasons to be provided to the applicant to commence the relevant 28 day period.
I do not agree with the Minister’s submission in this regard. As I have already set out above the concept of actual (as opposed to deemed) notification of the decision, in my view, and (and consistent with what I set out in S354 and the relevant analysis I adopt from SZIVA – see [25] above) requires two elements. The first being the “technical” aspects of the notification. In this case, on the evidence, as I have already referred to above, the Tribunal complied with these.
But what is also required is actual notification of the decision to the applicant. In my view, there is a difference between an applicant becoming aware of an adverse Tribunal decision, and having actual notification of that decision. I am guided in this view by what the High Court also said in WACB. In WACB, the High Court was concerned with the meaning of the phrase:
“within 28 days of the applicant being notified of the decision”
albeit it as it appeared in an earlier version of s.478 of the Act, and as it was concerned at that time, on the time limit on the jurisdiction to review migration matters in the Federal Court. As FM Smith said in SZIVA v Minister for Immigration and Anor (2006) FMCA 1494 at [26]:
“…The majority judgment traced the history of this provision, and accepted that notification could not occur unless there was compliance with a requirement of the Migration Act that a statement of reasons should accompany the giving of reasons. The majority judgment also construed the concept of "being notified" as requiring physical delivery to the appellant, while noting that the 2001 deeming provisions were inapplicable to the matter before them (see [40] of their judgment). They said:
[36] If this submission were correct it would leave open the issue of that which constitutes notification in s 478(1)(b), presumably to be filled by reference to its ordinary meaning, and it would ignore the structure and historical development of the Act. However, the construction of s 478(1)(b) is apparent from the text and structure of the Act itself. Hence, such a submission, which at first blush may appear to have merit due to the equivalent language in ss 478(1)(b) and 430(1)(a), should be rejected. Notification of the decision under s 478(1)(b) requires that the code in Pt 7, Div 5 (the RRT) or in Pt 5, Div 6 (the MRT) be observed. In all cases, other than where the tribunal decision is given orally, notification of the decision for the purposes of s 478 occurs when the written statement is given to the applicant for review by the Federal Court.
[37] At the relevant time, the word "give" used in s 430D(2), the applicable provision in this case, was not defined. Accordingly, it is the ordinary meaning of the word, understood in its context, that must be considered. The context is that the RRT must give the applicant a copy of the written statement. In that setting, to give a document ordinarily requires its physical delivery, not some act of constructive delivery of possession which, at general law, may suffice to transfer property in a chattel. It will not be enough to communicate to the applicant orally that the document has arrived, or to communicate the gist of the document, or even to read the document to the applicant. What is required is that the written statement be physically given to the applicant. Only once this has occurred can it be said that s 478(1)(b) is enlivened and time begins to run. The appellant’s evidence that the written statement was not "given" until requested by him from Ms Alamar "some" weeks after he was told of the adverse decision by the RRT has not been controverted by the Minister who had the burden of establishing the objection to competency. (citation omitted)”
In my view, and consistent with the approach in WACB, which I see as having application to the circumstances before me, (even though it dealt with a previous statutory regime applicable to the Federal Court), the time limit in s.477(1) is intended to read to run from the receipt of actual notification, not from when the applicant received general advice about the Tribunal’s decision. That is, at that point when the applicant received the written statement, with reasons, from the Tribunal. There is in my view a clear distinction between the Tribunal discharging its obligations under those parts of the Act concerned with notification (Division 5 of Part 7, and Division 7A) of a Tribunal’s decision to an applicant (which of course includes deemed notice to an applicant) and with s.477, which is obviously concerned with a very separate issue, namely, the jurisdiction of this Court.
In my view, even beyond what the High Court said in WACB, it would hold that for s.477 to properly operate, an applicant must receive actual notice of the decision such as to be in a position to be able to pursue judicial review. If the legislature seeks to impose strict time limits within which an applicant can make an application to this Court, and emphasises the distinction between actual notification of the decision as opposed to deemed notification, then it could only mean that this is done in a context that once an applicant has possession of the decision record, such as to be able to make, or to obtain advice on how to make, an informed decision about whether to seek judicial review, the time limit, in my view, must start to run from that point.
There is a distinction between actually knowing in a complete sense as to the Tribunal’s decision, and its reasons, and being generally aware of an adverse Tribunal decision. In the circumstances of this case the applicant became generally aware from what she was told by probably either employees of the Minister or their agents, but certainly not by the Tribunal. I do not see general knowledge of an adverse Tribunal decision, as opposed to the applicant actually receiving notification of the decision, in a context where the applicant would then be able to proceed to make an application for judicial review as amounting to actual knowledge. To accept the Minister’s construction of s.477 would be to encourage, or compel, applicants to make applications for judicial review in circumstances where they had not had the opportunity to consider the Tribunal’s reasons for their adverse decision, and to form a considered view, or receive advice, as to whether the decision was infected by jurisdictional error. There is nothing to show that the legislature intended this outcome.
In my view therefore, the applicant was notified of the Tribunal decision after she had sought, and been given, a copy of the Tribunal’s decision record. On the evidence before me, this would have occurred sometime between 28 September 2006 and 4 October 2006, and most probably either 3 or 4 October 2006. It could not have occurred prior to 28 September 2006. So even taking this as the date of notification, the application made on 5 October 2006 was well within the 28 day time limit.
In all therefore, I find that the application to this Court was made within the time limit provided in s.477(1) for the making of such applications, and therefore reject the Minister’s application for dismissal of the applicant’s application for judicial review. I find the Court does have jurisdiction in this matter. I will now set the matter down for a final hearing of the applicant’s complaint about the Tribunal decision made on 5 April 2002.
The question of jurisdictional error: An observation
I should just note that both the applicant, by way of affidavit made on
5 October 2006 and the respondent by way of the Court Book, have put the Tribunal’s decision record before the Court (CB 61 to CB 73). By way of preliminary observation and to assist the parties in the conduct of the final hearing, I cannot help but note in the Tribunal’s decision record, and in particular, in its “Findings and the Reasons” (at CB 70 to CB 71) that while the Tribunal had based its decision, in part, on the “vague and inconsistent” evidence that the applicant provided to it, and while it specifically stated that it “considered” “the present applicant’s case individually” (CB 71.6), that a question arises as to whether it may be said that a part of the Tribunal's decision was reliant on the Tribunal’s observation:“It is nonetheless relevant to a degree that the applicant’s claims are a virtual “carbon copy” of those nine other applicants.” (CB 71.5)
This was with reference to nine other applications also before the Tribunal.
What this Court will ultimately need to consider is whether the Tribunal’s statement:
“…this reveals how little individual thought she has put into her own application. This in turn goes to the Tribunal's conclusions as to the cavalier character of this application, for Applicant’s approach or lack of attention does not sit with the notion of a firm believer standing up for her beliefs”
was made with reliance on information not put before the Tribunal by the applicant for the purposes of the review, and which may fall within the provisions of s.424A(1). Further, as to whether such information was put to the applicant in the way required by s.424A(2) (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27, SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2). In light of this I will give both parties the opportunity to make further written submissions prior to the final hearing, and set this matter down for a final hearing.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Dawnie Lam
Date: 12 April 2007
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