SZJOZ v Minister for Immigration - [2007] FMCA 335

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJOZ v MINISTER FOR IMMIGRATION

[2007] FMCA 335

MIGRATION – Review of decision by delegate to refuse to consider a protection visa application pursuant to s.48 of the Migration Act 1958 (Cth) – whether an earlier application for a protection visa was a valid application.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.45(1); 45(2); 45(2)(a); 46(1); 46(1)(b); 47(3); 48A; 48B; 54; 55; 69; 415; 417; 476; 477; 477(1); 477(2); 477(2)(b)
Migration Regulations 1994 (Cth), reg.2.07(3); 2.10(1); 2.10(1)(b)

Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495
SZECD v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 53
Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486
Phanouvong v Minister for Immigration and Multicultural Affairs (1999) 60 ALD 438
Thayananthan v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 297
SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162

Applicant:

SZJOZ

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File number:

SYG3146 of 2006

Judgment of:

Emmett FM

Hearing dates:

9 March 2007 and 26 March 2007

Date of last submission:

26 March 2007

Delivered at:

Sydney

Delivered on:

26 March 2007

REPRESENTATION

Counsel for the Applicant:

Ms Mitchelmore

Counsel for the Respondent:

Ms Stern

Solicitors for the Respondent:

Ms Buchanan, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3146 of 2006

SZJOZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application that this Court extend time, pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) to the Applicant for the filing of an application for a remedy to be granted in exercise of the Court’s original jurisdiction under s.476 in relation to a migration decision made by a delegate of the First Respondent, dated 10 August 2006.
The applicant was born on 5 September 1963 and claims to be from China and of Catholic faith (“the Applicant”).
The Applicant arrived in Australia on 2 October 1996.
On 2 December 1996, the Applicant lodged an application for a protection visa (“the Purported Protection Visa Application”) with the Department of Immigration and Ethnic Affairs (“the Department”).
In the Purported Protection Visa Application, the Applicant stated “My personal statement will be providing later”. The Applicant did not, at the relevant time, provided to the Department the personal statement to which he had referred.
On 7 March 1997, a delegate of the First Respondent refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 10 April 1997, the Applicant lodged an application with the Refugee Review Tribunal (“the Tribunal”) seeking review of the decision of the delegate dated 7 March 1997. The Applicant provided a statement of his claims in support of his application to the Tribunal.
On 14 April 1998, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 1 May 1998, the Applicant wrote to the then Minister for Immigration and Ethnic Affairs requesting that the Minister exercise his powers under s.417 of the Act.
On 21 June 2006, the Applicant lodged a second application for a protection visa (Class XA) with the Department (“the Application”). The Application contained details of his claims of being a refugee.
On 10 August 2006, the Delegate wrote to the Applicant’s migration agent that, as the Purported Protection Visa Application was considered to be a valid application, the Applicant is prevented from making another protection visa application while in the migration zone.
On 27 October 2006, the Applicant filed an application in this Court seeking judicial review of the Delegate’s decision.

The proceeding before this Court

The Applicant was represented by counsel, Ms Mitchelmore, at the hearing before this Court.
The matter proceeded on the basis of a statement of agreed facts in the following terms:
“The parties agree to the following facts:
1. The applicant arrived in Australia on 2 October 1996 on a false Hong Kong travel document issued in the name of FOO Cheun Yuk.
2. The Applicant lodged Parts B and C of an “Application for a Protection Visa 866” form dated 10 November 1996 (the Application Form), which was received by, what was then, the Department of Immigration and Ethnic Affairs (the Department) on 2 December 1996.
3. In response to question 15 Part B of the Application Form, which asked “Please list all the documents you are not providing with this application, but will be providing later”, the applicant stated:
“My personal statement will be providing (sic) later”.
4. In response to question 35 of Part C of the Application Form, which states, “I am seeking protection in Australia so that I do not have to go back to:” the applicant stated:
“ P R China”
5. Questions 36 to 40 of Part C of the Application Form concern the reasons for the applicant claiming to be a refugee, and relevantly ask”
36. “Why did you leave that country”
37. “What do you fear may happen to you if you go back to that country”
38. “Who do you think may harm/mistreat you if you go back?”
39. “Why do you think they will harm/mistreat you if you go back?”
40. “Do you think the authorities of that country can and will protect you if you go back? If not, why not?”
6. In response to each of the questions, the applicant stated:
“My personal statement will be providing (sic) later”.
7. On 7 March 1997, a delegate of the Minister for Immigration and Ethnic Affairs (the Minister) determined that the applicant did not meet the criterion for a protection visa and refused to grant the applicant a protection visa.
8. At no relevant time, either prior to or after the making of the 7 March 1997 decision, did the applicant provide to the Department the personal statement referred to in the Application Form, or any other document that disclosed particulars of his claim to be a refugee.
9. On 10 April 1997, the applicant sought review of the Minister’s decision by the Refugee Review Tribunal (the Tribunal). The applicant provided detailed claims and submissions in support of his protection visa application to the Tribunal both in writing and orally at a hearing held on 7 April 1998. On 14 April 1998 the Tribunal affirmed the decision of the Minister not to grant the applicant a protection visa.
10. On 1 May 1998, the applicant wrote to the then Minister, requesting that he exercise the personal powers provided for under s.417 of the Migration Act 1958 (Cth) (the Act) to substitute the decision of the Tribunal with a decision more favourable to him. By letter dated 30 October 1998, the applicant was advised that, on 30 September 1998, the Minister decided not to consider exercising the power available to him under s.417 of the Act in his case.
11. The applicant made no further contact with the Department in relation to formalising his immigration status in Australia until 2006.
12. On 21 June 2006 the applicant lodged with the Department an application for a Class XA (Protection) visa (the application). The application contained details of his claim to be a refugee.
13. By way of a letter dated 10 August 2006, an officer of the Department informed the applicant through his migration agent that:
“The Protection visa application lodged by [the applicant] on 27 November 1996 is considered to be a valid application. This application was refused by the delegate on 7 March 1997 and the decision was affirmed by the RRT on 14 April 1998. [The applicant] is therefore prevented under section 48A of the Migration Act from making another Protection visa application while in the migration zone.”
14. Reference to the 27 November 1996 application is a reference to the Application Form.
15. The 10 August 2006 letter stated that the applicant’s:
“claims will be considered against the guidelines for purported further applications for a Protection visa subject to s 48A and request for Ministerial intervention under s 48B to determine whether his case will be referred to the Minister for consideration under s 48B.””
At the heart of the Applicant’s contentions is the submission that, on

10 August 2006, the delegate erred in refusing to consider the Applicant’s second application for a protection visa, lodged on 21 June 2006, on the basis that s.48A of the Act prevented the Applicant from making a further protection visa application, in circumstances, where the Purported Protection Visa Application had already been refused.
Counsel for the Applicant contended that the Purported Protection Visa Application made by the applicant on 10 November 1996 was not a valid application.
Counsel for the First Respondent contended that the Purported Protection Visa Application was a valid application because the Applicant made claims before the Tribunal which were considered and determined by it in the conduct of its review of the delegate’s decision refusing the Purported Protection Visa Application. The First Respondent submitted that the provision by the Applicant of his claims to the Tribunal cured any defect in the Purported Protection Visa Application because the Tribunal considered and determined those claims. In support of that proposition, the First Respondent referred the Court to Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 (“Yilmaz”) and SZECD v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 53 (“SZECD”).
The First Respondent submitted that the authorities are relevantly summarised by Bennett J in SZECD and that this Court is bound by the decision in SZECD that consideration by the Tribunal of the Applicant’s claims made to the Tribunal cured any invalidity of the Purported Protection Visa Application.
As at 2 December 1996, when the Applicant’s Purported Protection Visa Application was received by the Department, the relevant legislative scheme was as follows:
· Sections 45(1) and (2)(a) of the Migration Act 1958 (Cth) provided:
45(1) Subject to this Act and he regulations, a non-citizen who wants a visa must apply for a visa of a particular class.
(2) Without limiting subsection (1), the regulations may prescribe the way for making:
(a) An application in specified circumstances
· Section 46(1)(b) of the Act provided:
46(1) Subject to subsection (2), an application for a visa is valid if , and only if:
…
(b) It is made in the way required by subsection 45(2)…
· Section 47(3) of that Act provided:
To avoid doubt, the Minister is not to consider as application that is not a valid application.
· Section 69 of that Act provided:
Non-compliance by the Minister with Subdivision AA … in relation to a visa application does not mean that a decision to grant or refuse to grant a visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.
· Regulations 2.07(3) and 2.10(1)(b) of the Migration Regulations 1994 (Cth) provided respectively:
2.07(3) An applicant must complete an approved form in accordance with any directions on it.
…
2.10(1) An application for a visa must be made:
…
(b) In the case of an application to be made in Australia … at any office of Immigration Australia.
The term “Immigration Australia” was defined by reg 1.03 to mean “the Department of Immigration and Multicultural Affairs”.
It is relevant to note that the legislation was changed in 2000 with the effect that s.45(2) was deleted and s.46 amended.
Section 46(1)(b) of the Act provided that an application for a visa was valid if, and only if, it was made in the way required by s.45(2) of the Act. At the time of the Purported Protection Visa Application, it is clear that the legislative scheme provided that regulations may prescribe the way for making an application for a protection visa (s.45(2)(a)).
Section 47(3) of the Act provided that the Minister was not to consider an application that was not a valid application. The regulations prescribed for the completion of an approved form and, relevantly, reg.2.10(1)(b) stated that an application must be made at any office of Immigration Australia.
The Purported Protection Visa Application was not completed in accordance with the relevant regulations. In particular, reg.2.10(1)(b) required the Applicant to make his application at an office of Immigration Australia.
Failure to comply with the regulations, in particular reg.2.10(1)(b) is fatal to the validity of an application (Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486 at 502-4, per the Full Court of the Federal Court of Australia (“Li”)).
The Full Court in Li distinguished Yilmaz on the basis that it had not considered whether the tribunal had jurisdiction to review on the merits where no valid application had ever been lodged. In Yilmaz, the Court considered a different question, namely whether s.415 of the Act would operate to cure defects that may have rendered the original decision invalid. The Court in Yilmaz did not consider the effect of failing to comply with the mandatory requirements of reg.2.10(1)(b). The Full Court in Li held that the effect of a failure to comply with that regulation resulted in no valid application having been lodged.
It was s.45(2) of the Act in 1996 that made compliance with reg.2.10(1)(b) mandatory because s.46(1) of the Act, as in force in 1996 provided that an application for visa was valid if and only if it was made in the way prescribed by regulations for the making of an application.
In SZCED, a different legislative scheme was in place, in that s.45(2) of the Act had been deleted. The authorities referred to by the Court in SZECD of Phanouvong v Minister for Immigration and Multicultural Affairs (1999) 60 ALD 438 and Thayananthan v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 297 both involved circumstances where information was supplied to the Department.
The Court in SZCED stated at [25] that Li had determined that the application does not become valid if the additional material is submitted to the tribunal and not to the Department. In asserting that proposition, the Court in SZCED stated that the Full Court in Li did not refer to the reasoning of Gyles J, in Yilmaz, who had drawn no distinction between the situation where information was provided to the Department or the tribunal.
However, Counsel for the Applicant submits, and I accept, that in Yilmaz the information also went to the Department prior to the Tribunal decision, so the Court did not have to consider the position of information only being furnished to a tribunal. The Full Court in Li distinguished Yilmaz on the basis that in Yilmaz information was provided to the Department prior to the Tribunal hearing. The Full Court in Li noted that the Full Court in Yilmaz did not consider the circumstance of where no valid application had ever been lodged with the Department (Li at [81]).
Accordingly, I accept the submission of Counsel for the Applicant that the comments made by the Court in SZCED, as referred to above, are therefore obiter.
I do not accept that SZCED is authority for the proposition that non compliance with reg.2.10(1)(b), where the legislative scheme contemplates mandatory compliance, is cured by a subsequent hearing on the merits by a tribunal.
For those reasons, SZECD is not pertinent to the issues in the proceeding before this Court.
In the circumstances, neither Yilmaz nor SZECD is directly relevant to the proceeding before this Court.
Counsel for the First Respondent also referred the Court to ss.54 and 55 of the Act. Again, they do not appear to me to be relevant to the issue of whether or not compliance with reg.2.10(1)(b) is mandatory under the relevant legislative scheme before a valid application is lodged.
The relevant legislation, having been interpreted and applied in Li, makes clear that, in circumstances where there has been a failure by an applicant to comply with the regulations in the making of his application, the result is that no valid application has been made. The failure to comply with the prescribed regulation requiring an application to be lodged at the office of Immigration in accordance with reg.2.10(1)(b), is not, according to the Full Court in Li, a failure capable of being cured by the subsequent Tribunal decision. This Court is bound by that decision.
Accordingly, the Purported Protection Visa Application is not a valid application and s.48A does not apply. The refusal by the delegate on 10 August 2006, to consider the Applicant’s protection visa application, lodged on 21 June 2006, on the basis that s.48A of the Act prevented the delegate from doing so because there had been another decision, is wrong.

Extension of time under s.477 of the Act

It is common ground that the relief sought by the Applicant is within the Court’s jurisdiction under s.476 of the Act.
Pursuant to s.477(1) of the Act an application for a remedy of the nature sought by the Applicant must be made to this Court within

28 days of the actual (as opposed to deemed) notification of the decision. The date of notification of the Department’s decision to refuse to consider the Applicant’s protection visa application is, by agreement, 10 August 2006.
Pursuant to s.477(2) of the Act this Court may extend that 28 day period by up to 56 days if an application for extension is made within 84 days of the actual (as opposed to deemed) notification of the decision and this Court is satisfied that it is in the interests of the administration of justice to do so.
In his application, filed in this Court on 27 October 2006, the Applicant sought an order that the time for making an application be extended. That application is made within 84 days of notification to the Applicant of the tribunal’s decision.
The Applicant read the affidavit of Steven Daniel Glass affirmed

25 October 2006. Mr Glass deposed that the reason that application to this Court was not filed within 28 days of notification of the Tribunal’s decision was because the letter from the Department, dated 10 August 2006, stated that the Applicant’s protection visa application would be referred to the Minister for consideration under s.48B of the Act. Section 48B of the Act allows the Minister to determine that s.48A of the Act does not apply. Mr Glass deposed that enquiries made of the First respondent disclosed that the First Respondent is yet to determine whether to exercise power under s.48B of the Act.
The relief sought is discretionary. The First Respondent submits that, even if this Court concluded that the relief sought could be made, it should exercise its discretion to refuse to extend time on the basis that it is not in the interest of the administration of justice to do so (s.477(2)(b)).
The Applicant also read an affidavit of the Applicant sworn 25 January 2007 and a further affidavit of Mr Glass affirmed 30 January 2007. Neither deponent was cross examined by the First Respondent.
In his affidavit, the Applicant stated that, shortly after his arrival in Australia, he met with a friend he had known in China who introduced him to a migration agent. The Applicant stated that, with the assistance of a migration agent, he signed the Purported Protection Visa Application in a false name and provided an incorrect address. The Applicant deposed that he did not want to provide his own residential address because he feared he would be deported to China. The Applicant deposed that, shortly before the Tribunal’s decision, he asked the migration agent to inform the Tribunal that he had changed addresses. The new address provided was another incorrect address. Again, the Applicant stated he feared being deported to China. The Applicant did state that the incorrect addresses provided by him were addresses of his friend who had told him he could use his address as a mailing address and he would pass on any mail to the Applicant.

On 14 April 1998, the Applicant’s friend gave him a copy of the Tribunal’s decision. The Applicant deposed that, shortly thereafter, his friend moved addresses again and told the Applicant he could use the first incorrect address and that the friend would check for mail at that address. The Applicant deposed that, in early May 1998, he informed his migration agent of his new address and signed a letter, prepared by his agent in the nature of a s.417 application. That letter was also in the Applicant’s false name and the first incorrect address.
The Applicant deposed that he did not know that his bridging visa expired after the Tribunal’s decision and whether or not he was still legally in Australia. The Applicant deposed that the migration agent did not inform him that he needed to approach the Department for an extension of his bridging visa.
The Applicant deposed that, later in 1998, he attempted to contact the migration agent but was unable to reach him by telephone and his office was no longer at the location known to the Applicant. The Applicant deposed that he has had no further contact with the migration agent.
The Applicant deposed that he had never seen the First Respondent’s response, dated 30 October 1998, to his s.417 letter, in which the First Respondent refused to exercise his discretion. The Applicant acknowledged that the letter was addressed to the Applicant’s false name at an incorrect address.
The Applicant confirmed that he made no further contact with the Department or First Respondent in relation to formalising his status in Australia until 2006 because he was scared he would be deported to China.
The Applicant deposed that, in late 2005, he discussed his immigration status, for the first time, with another person, being a priest from his church, who advised him to go to the legal aid office.
The First Respondent submitted that, having regard to the facts that the Applicant relied on the Purported Protection Visa Application in his review application before the Tribunal on 10 April 1997; sought review of that decision on the merits; never sought to challenge the Tribunal’s decision directly; made no contact with the Department for a period of 8 years; and provided an incorrect address to the Tribunal with the consequence that the Department would have been unable to contact him, the Court should not extend time to the Applicant to file his application.
In considering whether to grant an extension of time to the Applicant to seek discretionary relief, it is relevant to have regard to all the conduct of the parties in their dealings with each other. As McHugh J said in SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at 183 stated:
“The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands.”
It is of great concern that the Applicant provided a false name and twice provided incorrect addresses. For 8 years the Applicant took no steps to inform himself as to his status or to approach the Department or the First Respondent, either to make similar inquiries, or to provide them with correct contact details. The Applicant’s explanation of a fear of deportation is hardly credible in circumstances where he took no meaningful steps for more that 8 years to obtain his own advice as to his status or rights, even if he feared approaching the Department or the First Respondent. The Applicant has exercised no responsibility in seeking to inform himself about his status or rights or in correcting knowingly false information, in circumstances, where he must have been aware that he had placed himself beyond the contact of the Department or the First Respondent. Moreover, he continued in this fashion for more than 8 years. That is conduct beyond mere inertia.
Moreover, it is conceded by the Applicant that his claims for a protection visa made in his application lodged in 2006 are no different from the claims made by him to the Tribunal in 1998. There has been no challenge made by the Applicant at any stage to the correctness of that Tribunal decision or any of its findings arising from its consideration of the Applicant’s claims. In those circumstances, the Applicant has had a full merits review of his claims. There may have been further steps available to him that are now closed to him because of the strict time limits for the seeking of judicial review of a tribunal’s decision now imposed by s.477 of the Act. It is solely the conduct of the Applicant that has placed him in that situation.
In balancing the interests of justice between the parties, I have regard to the serious consequence of a refusal by this Court to grant discretionary relief, namely, that the Applicant has not had a valid application for a protection visa considered by the Department, pursuant to s.47 of the Act. However, I cannot ignore the serious nature of the Applicant’s conduct, as referred to above in these Reasons.
In particular, the conduct of the Applicant during the 8 year period, between his inability to locate his migration agent and his approach to his priest for assistance, is one shrouded by perpetuated dishonesty and a complete absence of any attempt to seek to inform himself about his rights or status in Australia. The Applicant plainly knew his status in Australia was under question. He deposed that he had not discussed his immigration status with anybody, “except one or two close Church friends” whom he trusted, before raising it with a sister from his Church. The terms in which he answered the sister make it clear that he was unsure of his status. Moreover, he has had a merits hearing by the Tribunal of the same claims he now makes.
Accordingly, even though relief is available, in balancing the interests of justice, in the exercise of the Court’s discretion, the relief sought should be refused. In all the circumstances, I am not satisfied that it is in the interests of justice that an extension of time be granted.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 26 March 2007