SZKKC v Minister for Immigration
[2008] FMCA 1133
•22 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKKC v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1133 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – jurisdictional error conceded by the Minister – consideration of the exercise of the Court’s discretion to withhold relief – unwarranted delay. |
| Migration Act 1958 (Cth), ss.36, 52, 91R, 411, 412, 420, 422B, 426, 477 |
| Minister for Immigration v SZIQB [2008] FCAFC 20 SAAP v Minister for Immigration (2005) 228 CLR 294 SZBYR v Minister for Immigration (2007) 235 ALR 609 SZIZO v Minister for Immigration [2008] FCAFC 122 |
| Applicant: | SZKKC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 979 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 8 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms L Clegg |
| Solicitors for the Applicant: | Gilbert + Tobin |
| Counsel for the Respondents: | Mr S Lloyd |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 979 of 2007
| SZKKC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The only issue to be decided in this case is whether the Court should exercise its discretion in order to withhold relief in circumstances where jurisdictional error is conceded by the Minister. In an interlocutory judgment[1] I found that the application to this Court was not barred by s.477 of the Migration Act 1958 (Cth) (“the Migration Act”). That decision was affirmed by the Full Federal Court[2]. An appeal to the High Court of Australia by the Minister was withdrawn.
[1] SZKKC v Minister for Immigration & Anor [2007] FMCA 532
[2] SZKKC v Minister for Immigration [2007] FCAFC 105
The Minister concedes ground 1 in the amended application filed on 29 May 2007 which was in these terms:
1. The Tribunal failed to exercise its jurisdiction because it failed to give her a proper notice in relation to the hearing it had scheduled for her to attend.
Particulars
The Tribunal wrote to the applicant on 3 December 1998. The letter appears at CB51. It is headed “NOTICE UNDER SECTION 426 OF THE MIGRATION ACT 1958”. At that time, the Act required such a notice to include a notice as to the effect of subsection (2) of section 426, which provided that:
The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
The Minister submits that I should withhold relief on the basis of unwarranted delay. The Minister relies upon the decision of the High Court in SZBYR v Minister for Immigration (2007) 235 ALR 609 at [27]-[29]; SZGGG v Minister for Immigration [2006] FMCA 528[3] and several earlier decisions of this Court and the Federal Court. The Minister’s submissions filed on 1 August 2008 note that the decision of the Tribunal was handed down on 7 July 1999. The applicant was a member of the Muin and Lie class action between 17 August 2000 to 20 June 2003[4]. The Minister asserts that the applicant took no steps between the conclusion of the Muin and Lie class action and 22 March 2007 when she commenced the present proceedings.
[3] affirmed on appeal in SZGGG v Minister for Immigration [2007] FCA 1090 at [43]-[49]
[4] The end date was a fact agreed between the parties and confirmed by letter dated 15 August 2008
Counsel for the applicant submits that the delay was not unwarranted given an explanation for delay provided by the applicant.
The evidence
I have before me as evidence the court book filed on 18 April 2007. An additional page was tendered, which I marked as page 28A, that being a photocopy of the original Chinese version of the applicant’s identity card, the translation of which appears on page 29 of the court book. I also received an affidavit by Nicola Johnson made on 11 April 2007 and an affidavit by the applicant made on 27 June 2008, including the exhibits to that affidavit. In that affidavit the applicant deposes as to her arrival in Australia in June 1996 and her movements and activities until July 1997. She deposes meeting her migration agent, Mr Qiao[5], and engaging him to assist her with her protection visa claim. She deposes as to errors in the statement prepared by Mr Qiao based upon an oral interview. She concedes signing the protection visa application but says that the statement was not read to her. The applicant deposes as to her limited dealings with Mr Qiao between July 1997 and July 1999. The applicant deposes as to her actions between 1999 and 2004. She was informed of the decisions of the delegate and the Tribunal which were adverse to her but not the reasons for those decisions. She was advised by Mr Qiao in early June 2000 to participate in the Muin and Lie class action. She agreed.
[5] According to correspondence from the Migration Agents Registration Authority to Gilbert + Tobin Solicitors dated 12 August 2008 Mr Qiao was first registered as a migration agent on 29 September 1993. His name was removed from the register on 14 February 2002. The reason for that removal is not known to the Court.
The applicant was briefly detained in September 2000 and contacted Mr Qiao to check on her situation after her release. She deposes as to two more conversations with Mr Qiao in which he advised there was no outcome in the class action and that she needed to wait. The applicant lost contact with Mr Qiao from January 2003 when the applicant discovered that he had closed his office. The applicant deposes that from 2004 until 2007 she expected to hear from Mr Qiao about the class action but did not hear anything. She became worried in early 2007 when a friend suggested she might speak to a different migration agent. She was taken into detention in March 2007 and found that she had become an illegal immigrant.
The applicant was cross-examined on her affidavit at length by counsel for the Minister. Her evidence was in some respects unsatisfactory. The applicant asserted that she had told Mr Qiao that she was a Catholic but her protection visa application gives her religion as Buddhist (Guan Yi). She asserted that she signed the protection visa application on the day she had an initial two hour interview with Mr Qiao but she could not explain why he did not include in her claims her claim to be a Catholic. She asserted that the residential address given in the protection visa application[6] was false but could not explain why Mr Qiao (a registered migration agent at that time)[7] would have unprompted inserted a false residential address for her. The same allegedly false address was provided to the Refugee Review Tribunal (“the Tribunal”) in the review application signed by the applicant[8]. The applicant asserted that a new address provided by her agent to the Tribunal on 11 February 1998[9] was also false but could not explain why the agent would unprompted substitute one false address for another. The applicant acknowledged that she was willing to sign both her protection visa application and her review application to the Tribunal without checking their contents. She also acknowledged that, on her own evidence, she had not provided an address to Mr Qiao so that he could write to her. She gave evidence that she changed her address several times between 1998 and 2000. She provided a landline telephone number initially but when she moved residence Mr Qiao would have had no way of contacting her until June 2000 when, according to the applicant, she provided Mr Qiao with her mobile telephone number. The applicant asserted that conversation came about by Mr Qiao telephoning her but she could not explain how Mr Qiao telephoned her without knowing her telephone number.
[6] court book, page 13
[7] court book, page 7
[8] court book, page 40
[9] court book, page 44
The applicant also acknowledged factual inconsistencies between her affidavit and oral evidence she gave on 12 April 2007 at the interlocutory hearing in relation to the application of the time limit. She invited the Court to prefer her affidavit evidence. I prefer her oral evidence at the earlier time which had the ring of truth about it. The applicant asserted that she relied on Mr Qiao to attend to all matters on her behalf and that she trusted him. She paid him to attend to her affairs and expected him to inform her when something of significance occurred. She was adamant that she had no reason to suspect between 2003 and 2007 that the Muin and Lie class action had concluded in the absence of any communication from Mr Qiao, even in the knowledge at the beginning of 2003 that he had closed his office.
Reasoning
I accept the Minister’s submission that unwarranted delay is a basis for the Court to exercise its discretion to withhold relief in the form of constitutional writs where jurisdictional error is established[10]. However, consideration of the exercise of discretion generally requires more than simply considering the length of the delay. The Full Federal Court observed in Minister for Immigration v SZIQB [2008] FCAFC 20 at [19]:
In our view, it is unnecessary to determine whether, in a case involving a claim of refugee status, delay alone could be a sufficient basis for the withholding of discretionary relief. It is virtually impossible to imagine a case in which the only factor relevant to the grant or withholding of relief is delay; an additional relevant factor will either be the failure to explain the delay or, alternatively, the explanation given for the delay. Perhaps more importantly, this is not a case of delay alone.
[10] SZBYR at [27]-[29]
The Full Court noted in that case that the applicant left his home address given on his application for review without advising either the Tribunal or his agent of his new address and between March 1998 and sometime in 2006 he learnt nothing of the fate of his application to the Tribunal. He made no approach to the Tribunal to enquire as to the fate of his application for review until 2006. The Full Court further stated at [23]-[25]:
A person who seeks the protection of Australia by applying for the visa for which s 36 of the Act provides, and thereafter avails himself or herself of the right of administrative review by the Refugee Review Tribunal for which s 411 of the Act provides, is not entitled to disregard the obligations imposed on him or her by other provisions of that Act and the Migration Regulations 1994 (Cth). One such obligation is to tell the Minister of any proposal to change his or her address (s 52(3B) of the Act). Another obligation is to give the Tribunal a notice in writing of an address, including a new address, at which documents relating to a review may be sent (reg 4.39 of the Migration Regulations). Any failure to comply with relevant obligations imposed by the Act and the Migration Regulations is a factor to be weighed in the balance where a claim is advanced for discretionary relief. What weight should be accorded such failure will depend on all the circumstances of the case.
The authorities similarly reveal that the apparent strength, or alternatively weakness, of a claim for relief is also a factor that may be weighed in the balance where a claim is advanced for discretionary relief (Jess v Scott (1986) 12 FCR 187; Howard v Australian Electoral Commission [2000] FCA 1767 at [7]). In the circumstances of this case, consideration of this factor would not necessarily have involved his Honour in impermissible consideration of the merits of the first respondent’s claims. It would rather have required his Honour to consider questions such as whether the first respondent’s claims, if substantiated, would or could bring him within the ambit of the Refugees Convention and whether the persecution allegedly feared by him is serious harm within the meaning of s 91R of the Act.
More importantly in the circumstances of this case, there are compassionate reasons, as well as public policy reasons, why any challenge to the refusal of an application for a protection visa should be instituted promptly. In many cases personal anguish will follow the rejection of an application for a protection visa. Anguish of this kind is likely to be exacerbated if the decision comes after the applicant has spent some years in Australia. Moreover, it is not in the public interest that the immigration status of members of the Australian community should be unresolved or otherwise uncertain. It is, it may be assumed, for these reasons - and possibly others - that the Act discloses (and disclosed in 1998) a legislative intent that the process of determining claims for protection visas should proceed expeditiously (see, for example, s 412 and s 420 of the Act as in force in March 1998).
Conversely, in SZIZO v Minister for Immigration [2008] FCAFC 122 at [97] the Full Court said:
It should be only in exceptional circumstances that a Court should refuse to issue the constitutional writs once the Court has determined that the Tribunal had failed to comply with its imperative statutory obligations to an applicant seeking the review of a decision of the delegate refusing the applicant a protection visa. If it were otherwise, and the Court were required to inquire into the extent to which the failure by the Tribunal to comply with its statutory obligations to accord an applicant a fair hearing prejudiced the applicant, the imperative obligation imposed on the Tribunal might well be blunted.
SZIZO was not a case of delay. The Full Court in that case emphasised the consequences of a breach of the code of procedure in the Migration Act. The Court referred to the decision of the High Court in SAAP v Minister for Immigration (2005) 228 CLR 294 at [83]-[84]. Accordingly, the statement of the Full Court in relation to the need for “exceptional circumstances” needs to be put in its context. This is a case involving a breach of a superseded form of s.426 of the Migration Act, enacted well before s.422B of that Act. Section 426 in the form applicable at the time is no longer part of the code of procedure in the Migration Act and I do not see that the same public policy considerations apply in this case as applied in SZIZO. Moreover, the breach of s.426 did not deprive the applicant of a hearing. Her migration agent was notified of the hearing invitation issued by the Tribunal and a response was sent accepting the invitation. The applicant failed to attend because, on her account, her agent did not inform her of the hearing invitation. The invitation was issued on 3 December 1998 and accepted on 18 December 2008. The applicant’s name is written in roman characters where her signature should be, suggesting that she did not sign the acceptance[11]. The applicant gave evidence that she did not know of the hearing offer, so she could not have been aware of the response. On her evidence, her migration agent did not know her address because she had not told him. She had given him a telephone number which he had used a year earlier. It appears that the applicant’s failure to attend the Tribunal hearing was a result of a lack of communication between her and her agent.
[11] CB 60
The applicant’s explanation for the delay of well over three years between the conclusion of the Muin and Lie class action on 20 June 2003 and the institution of these present proceedings on 22 March 2007 is unsatisfactory. The applicant did nothing to check the status of the class action after she lost contact with Mr Qiao. It is implausible that she assumed that he was still attending to her affairs and would contact her with advice when she knew his office had closed. On her own evidence the applicant had had no contact with Mr Qiao since mid 2001. The applicant had been taken into detention in 2000 and in her oral evidence at the interlocutory hearing she stated that she was warned by a Departmental officer when she was released that she would have to leave Australia as soon as the class action was finished[12]. The applicant acknowledged that she was afraid of being taken into detention again and, indeed, that is what occurred in 2007. While that fear is understandable, it is not an adequate explanation for delay in bringing the present proceedings.
[12] transcript, page 11, lines 8-11
Counsel for the applicant asserts that another relevant factor to weigh is the denial of a hearing to the applicant on the basis of at least irregular conduct by her migration agent, Mr Qiao. That irregular conduct is said to be the provision of two false addresses to the Minister’s Department and the Tribunal. It is also said to be the inclusion of incorrect claims and the omission of a claim of significance concerning the applicant’s religion. Those assertions are based on the applicant’s evidence but I find that evidence to be implausible and I do not accept it. It is implausible that in a two hour interview at a time when the protection visa application was completed and the statement of claims prepared, the agent would leave out entirely an obvious claim based upon religion. The applicant asserted that she did not provide any residential address to her agent and the residential addresses he provided to the Minister’s Department and the Tribunal were false ones. I reject that evidence. Mr Qiao was a registered migration agent when he assisted the applicant to make her protection visa and review applications and would have been alert to the obligation on applicants to provide an address. He surely would have wanted an address at which he could have communicated with the applicant. It is implausible that he would have, unprompted and knowingly, provided not one but two false addresses at different times. The more likely explanation is that the original address provided to the Department and the Tribunal was the address given by the applicant to her agent (whether false or otherwise) and the change of address provided later to the Tribunal was also an address (whether false or otherwise) provided by the applicant to her agent.
There is nothing to indicate that the Department’s letter to the applicant sent to the initial address on 2 July 2007 was returned to sender[13]. It was sent by registered post. The Tribunal’s letter to the applicant dated 3 December 1998 was returned to sender[14] but the stamp on the envelope suggests that someone advised the post office that the applicant had left that address. The applicant’s attempt to deal with that issue in cross-examination was pure speculation about what might have happened. The address was an address at Lidcombe and the applicant acknowledged living in Lidcombe at the time. She denied living at the address given but could not remember the address she did live at. I think it likely that the applicant did indeed use the Lidcombe address given to the Tribunal for a time but then left it without providing a new address. I also note that a response to the Tribunal’s hearing offer was given by or on behalf of the applicant on 18 December 1998 advising that the applicant wished to attend the hearing. The applicant now claims she knows nothing of that hearing offer. It is possible that the agent responded on the applicant’s behalf without being able to contact her. If that occurred it was irregular but not necessarily improper conduct on the part of the agent. It would have been understandable for the agent to seek to protect his client’s interests without instructions, while he attempted to contact the applicant. The applicant did not attend the hearing before the Tribunal to which she was invited but I find, on the balance of probabilities, that that was the fault of the applicant for not providing her agent with current contact details, rather than the fault of the agent.
[13] court book, page 33
[14] court book, page 53
I have considered the strength of the applicant’s claims before the Tribunal. Her written claims were based upon the Chinese one child policy. She was forced to have two abortions. She had not resiled from that claim, but it is hard to see what would support her claim of a fear of future harm. She now claims to fear harm as a Catholic. That claim, if accepted, might support the granting of a protection visa, but I am unable to express any view on the strength of it. Further, I do not accept the applicant’s evidence that she told her migration agent of that claim at her first interview with him but that he left it out of her statement, and falsely claimed her religion to be Buddhist. It is more likely that the claim was omitted from the protection visa and review applications because the applicant did not tell her agent of it. It is a claim that could be considered by the Minister if he was minded to do so. In my view the existence of a claim for protection that has not been previously considered does not outweigh the considerations of the length of the applicant’s delay in bringing these proceedings, and my rejection of the applicant’s explanation for that delay.
I find that the delay by the applicant in commencing the present proceedings following the conclusion of the Muin and Lie class action was unwarranted. I reject her explanation for the delay. The surrounding circumstances support the withholding of relief in the exercise of discretion. I will, therefore, order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 August 2008
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