SZLKF v Minister for Immigration - [2008] FMCA 46

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLKF v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 46

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – reviewable error – failure to comply with s.441G of the Migration Act 1958 (Cth) – issue of excessive delay – exercise of discretion – constitutional relief refused – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZLKF.

Migration Act 1958 (Cth), ss.91X, 425, 425A, 441C, 441G

Gararth v Minister for Immigration & Multicultural Affairs [2006] FCA 316
NADK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
SZFOH v Minister for Immigration & Citizenship [2007] FCAFC 63
SZGZW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 457
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407

Applicant:

SZLKF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3018 of 2007

Judgment of:

Lloyd-Jones FM

Hearing date:

21 December 2007

Delivered at:

Sydney

Delivered on:

22 January 2008

REPRESENTATION

Advocate for the Applicant:

The applicant appeared in person with the assistance of a Mandarin interpreter

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application filed on 28 September 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3018 of 2007

SZLKF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

The applicant is a 31 year old male from Tianjin, the People’s Republic of China. The applicant claims to have been a Falun Gong practitioner since December 1997 and to have established a practice centre in January 1999, which was dispersed soon after the government banned Falun Gong in July 1999. Furthermore, the applicant alleges that he was detained for six months in August 1999 and that upon his release in February 2000, his freedom was “severely restricted by the authorities” with respect to his Falun Gong practice.
The applicant claims that his involvement in industrial and political activities between 1992 and 1994 led to a suspension of his employment. He claims that in November 1994, he was denounced for anti-government activities and was tortured in detainment for three months following an arrest by the Public Security Bureau.
The applicant arrived in Australia on 11 February 2001 and applied for a Protection (Class XA) visa on 5 March 2001. A delegate of the first respondent refused to grant the visa on 24 April 2001 and the applicant sought review of the delegate’s decision by the Refugee Review Tribunal (“Tribunal”). The Tribunal affirmed the delegate’s decision on 25 March 2002 (reference number NO1/38856), which is the decision the subject of these proceedings.
The application filed an application in the Federal Magistrates Court on 28 September 2007 as follows:
My immigration agent, Pricilla International Co, Pty Ltd, Suite 101 Dixon House, 413-416 Sussex Street, Haymarket NSW, Tel: 61-2-9212 2086, told me that he acted on my behalf for my application case. He prepared all the documents and received all the letters and informed me the letter’s contents. I didn’t get any letters from the RRT. I lost the chance to attend the RRT’s hearing to preset my reasons and evidence so the RRT made a decision of refusing my application. The agent only told me my application was refused and didn’t give me the RRT’s decision and told me that I had no prospects to win at the Court. If I wanted to appeal to the Court, I should waste much money so I didn’t appeal to the Court within the limited time.
When I was arrested at the Centre, I was told I can appeal to your Court. I implore that you could accept my appeal because I think it was the agent’s mistake that made me not attending the RRT’s hearing.
Particularly the RRT also didn’t let me know it’s inviting me to attend its hearing.

Consideration

At the first Court date, the applicant indicated that he wished to participate in the Court sponsored independent legal advice scheme. The applicant was allocated a panel adviser who attended Villawood Immigration Detention Centre to provide him with advice.
The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 10 December 2007. The applicant failed to avail himself of this opportunity.
At the commencement of the hearing Mr Reilly, for the first respondent, stated that he wished to cross-examine the applicant. The applicant gave evidence under oath with the assistance of a competent and qualified interpreter. The details of that evidence will be referred to below.

Ground of review

In the application under the heading “Grounds of Application” the applicant set out a statement which is reproduced at [4] above. This does not raise any ground of review or particularise a claim in any way. This places an obligation on the Court to independently consider whether the Tribunal decision and the contents of the Court Book on their face disclose any jurisdictional error. A separate issue is the period of delay between the issuing of the Tribunal decision and the filing of the application for review in this Court.
The applicant confirmed that he had not prepared written submissions or a list of authorities in support of his application. He made only limited oral submissions when invited, which repeated some of the evidence given under oath. This material will be addressed in detail below.
The Court Book prepared by the first respondent indicates that the application for review in the Tribunal was filed on 29 May 2001. The applicant listed his home address as a unit in Marrickville and his address for service as a post office box in Banksia. He indicated that he was represented by a migration agent firm, Pricilla International Co. Pty. Ltd.
Attached to the application is a typed statement setting out the details of his claim (CB 47-50). On 20 February 2002, the Tribunal invited the applicant to a hearing on 18 March 2002. The registered post tags attached to that letter confirm that it was sent to the applicant’s post office box, his residential address and his authorised recipient, Pricilla International Co. Pty. Ltd (CB 51-52). On 25 February 2002, the Tribunal sent another letter requesting the applicant to bring his passport and a record of any banking transactions since entering Australia. This letter was sent to both his post office box and the authorised recipient (CB 53).
The Tribunal’s “No reply to hearing invitation letter” checklist sets out steps taken by Tribunal staff to check that an applicant is notified of a hearing (CB 54). The Tribunal case notes indicate that Tribunal staff had rung the migration agent on 11 March 2002 to find out why the hearing invitation had not been responded to. The staff member recorded that the agent advised that he was having trouble contacting the applicant but would try to respond to the hearing invitation in the next day (CB 54). A copy of the invitation letter forwarded to the applicant’s residential address was returned to sender and date stamped by the Tribunal as received on 26 March 2002 (CB 56-58).
On 27 March 2002, the Tribunal notified the applicant and his migration agent of its intention to hand down its decision on 18 April 2002 (CB 59-60). I note that the handing down of the decision was prior to the introduction of s.422B of the Act, which came into effect on 4 July 2002, so the previous common law requirements for procedural fairness apply to this hearing and decision.
Although the Tribunal complied with s.425, s.425A and s.441C of the Act, the Court Book indicates a failure to comply with s.441G. This issue was considered in SZFOH v Minister for Immigration & Citizenship [2007] FCAFC 63 per Moore, Besanko and Buchanan JJ. In that decision, Besanko J considered the requirements the Tribunal must comply with when inviting an applicant to appear in accordance with the Act.
Section 441G of the Act states:
Authorised recipient
(1) If:
(a) a person (the applicant ) applies for review of an RRT‑reviewable decision; and
(b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient ) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.
The invitation letter was addressed to the applicant at the post office box in Banksia and not to Pricilla International Co. Pty. Ltd, the authorised recipient. The letter indicates that copies were also sent to both Pricilla International Co. Pty. Ltd and the applicant’s residential address. However, this does not strictly comply with the requirements of the Act.
I note the written submissions of Mr Reilly for the first respondent, stating that the Tribunal wrote to the applicant, who was deemed to have received the invitation to the hearing pursuant to s.441C(4) of the Act. Mr Reilly submits that it does not matter whether he actually received the invitation or not: NADK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 at [14]-[16]; VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [15]. However, I believe this would be so only if the invitation letter was correctly addressed and in accordance with s.441G as discussed above.
Given the existence of jurisdictional error in the Tribunal decision, this raises the issue of whether relief should be refused because of the applicant’s delay in bringing this application. The applicant’s evidence was that he had no intention of pursuing judicial review of the Tribunal decision until his apprehension and detention at Villawood Immigration Detention Centre in September 2007. While in detention, he found out that he could seek review of the Tribunal decision in this Court and he subsequently filed his application on 28 September 2007. This is more than five and a half years after the Tribunal decision was handed down.
In Gararth v Minister for Immigration & Multicultural Affairs [2006] FCA 316 at [62], Wilcox J made the following observation in respect of delay:
62. Nonetheless, constitutional relief is a discretionary remedy. There is ample authority for the proposition that excessive, unexplained delay will justify a court in refusing constitutional relief, even to an applicant who has otherwise made out a good case. In determining, for this purpose, what amount of delay should be considered excessive, it will always be necessary for the court to examine all of the circumstances of the case. The longer the delay, the more difficult it will be for an applicant to resist a respondent’s invocation of the court’s discretion. Although there is not, and should not be, a rigid rule, a delay of five years would ordinarily be extremely difficult to excuse. So the result in S58 is not surprising. Similarly, in relation to Marks. Although the delay in that case was less (17 months), that delay had to be examined in the context that it was a delay in litigation concerning termination of employment, an area in which expedition has always been thought particularly important, and the delay was being measured against the particular times specified by the High Court Rules.
In SZBYR v Minister for Immigration & Citizenship [2007] HCA 26, Gleeson CJ, Gummow, Callinan and Crennan JJ stated at [28]:
This Court has previously emphasised that the grant of the constitutional writs is a matter of discretion, and the same principles apply to the grant of relief by the Federal Magistrates Court and the Federal Court pursuant to s 39B of the Judiciary Act 1903 (Cth). In Aala, Gaudron and Gummow JJ noted that[18]:
"Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. Their Honours said[19]:
'For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.'"
The ultimate determination of whether relief should be refused because of an applicant’s delay in bringing the application is a matter of evidence, see SZGZW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 457 at [40] where Jacobson J states:
…as a general rule, the judicial power of the Commonwealth cannot be exercised to deny relief for admitted jurisdictional error, consisting as it does in this case, of a denial of statutory procedural fairness, without evidence tested in the ordinary way.
Under cross-examination, the applicant gave the following evidence about his migration agent:
i)He retained a migration agent to apply to the Tribunal after his protection visa application failed.
ii)He claims that he did not receive an invitation to the Tribunal hearing.
iii)He confirmed that he lived in Marrickville when the Tribunal application was filed but had moved by February 2002 when the invitation letter was sent.
iv)He did not inform the Tribunal of his change in address as he did not know how to.
v)He initially claimed that he had requested his migration agent to deal with his change of address on his behalf but then said that he did not inform the agent of the change.
vi)He confirmed that he did not receive the Tribunal’s letter nor did his agent inform him of it.
vii)He stated all communication with the agent was by telephone. The agent had his mobile number and he had their business card. He had been expecting a telephone call from the agent but did not receive one.
I note the following in relation to the applicant’s evidence about his knowledge of the Tribunal decision:
i)He was evasive in answering the question on when he became aware of the decision.
ii)He conceded that the approximate time he knew of the decision was 2003, which was also the time when his son was born and his Medicare benefits ceased.
iii)He subsequently admitted that this was just speculation.
In response to why he did not confirm the outcome of the Tribunal hearing, the applicant gave the following evidence:
i)He had telephoned his agent but nobody answered the call.
ii)When he visited the agent’s office nobody was present.
iii)He did not attempt to contact the Department of Immigration to check the outcome of the Tribunal hearing or notify the Department of his change of address.
When Mr Reilly put to the applicant that he had been aware that his application to the Tribunal was unsuccessful and that he chose to do nothing in the hope that his illegal residence in Australia would not be detected, the applicant conceded that this was correct. When asked if the only reason for him commencing these proceedings in 2007 was because he had been detected and detained in Villawood, the applicant agreed that the proceedings were commenced after his detention. He said that he only became aware that he could appeal the Tribunal decision from other detainees. He stated that other detainees told him what procedures to follow. Also that before his detention, he had discussed the issue with others who told him that he would have to provide evidence to support his appeal but he chose not to seek advice from a solicitor or a migration agent.
At the end of his evidence but while the applicant was still under oath, I asked him to confirm that the migration agent he referred to in his evidence was Ms Pricilla Yu of Pricilla International Pty. Ltd. I also asked whether the office he had attended was Suite 101, Dixon House, 413-415 Sussex Street, Haymarket. The applicant confirmed that this was correct.
I am satisfied that the interpreter in this matter carried out her task very competently and that communication between the applicant, Mr Reilly and myself was effective and should not be a source of any complaint. Although the applicant responded to the questions in a confident manner, I am not satisfied that the answers were truthful at all times. He also made a number of concessions in the cross examination. For example, he admitted that the proceedings filed in this Court were only initiated after he was detained. If this had not occurred, he would have continued to remain in the community as an illegal resident attempting to avoid detection.
I am unwilling to accept that the applicant’s attempts to contact his agent by phone or by visiting the office are genuine. This migration agent deals with many applicants that appear before this Court and the suggestion that its office is not open for business is difficult to believe.

Conclusion

In the circumstances, I intend to exercise my discretion and dismiss the application despite the existence of jurisdictional error. I am satisfied that the applicant initially made no attempt to appeal the decision of the Tribunal nor that he had any intention to do so. The application to this Court was only precipitated by his detention. If this had not occurred, the inactivity would have continued and no application would have been made. I am satisfied that the application should be dismissed with costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 22 January 2008