SZLQJ v Minister for Immigration
[2008] FMCA 362
•26 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLQJ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 362 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal’s 29 January 1999 decision affected by jurisdictional error – mandatory notification procedures now found in div.7A of Migration Act 1958 not in existence at relevant time – notification determined by when notification effected – notification effected in April 2007 but proceedings not commenced until November 2007 – proceedings brought out of time – Court has no jurisdiction. |
| Migration Act 1958, s.477 Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 Migration Legislation Amendment Act (No.1) 1998 |
| Xie v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 543 Minister for Immigration v SZKKC [2007] FCAFC 105 WACB v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 79 ALJR 94 SZIIU v Minister for Immigration [2008] FMCA 69 |
| Applicant: | SZLQJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3548 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 28 February 2008 |
| Date of Last Submission: | 13 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 26 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr. B. Adam |
| Counsel for the Respondents: | Mr. T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3548 of 2007
| SZLQJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he denounced corruption. He alleges that while in China he spoke out against corruption and that this subsequently led to him being unfairly dismissed and unable to find work. The applicant arrived in Australia in 1998.
The applicant claims to fear persecution in China because of his political beliefs.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 23 September 1998. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal in a decision dated 29 January 1999. He has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
Background facts
In a statement apparently signed by the applicant which accompanied his protection visa application form, also apparently signed by him, the applicant alleged that:
a)he was punished in 1996 for denouncing corruption;
b)as a consequence, he was unfairly dismissed and was not able to “find any job based on my experience”;
c)he was employed in a travel agency but could not agree with his boss with regard to political policies; and
d)friends assisted him in applying for a passport and an Australian business visa.
With his application for review lodged with the Tribunal on 28 October 1998 the applicant submitted a statement in which he referred to having read the delegate’s decision and in which he addressed some of the matters canvassed in it. The thrust of the claims made by the applicant in his protection visa application were repeated in this statement which appeared to have been signed by him.
The Tribunal’s decision and reasons
On 17 December 1998 the Tribunal wrote to the applicant to advise that it had considered all the papers relating to his application but was unable to make a favourable decision on that information alone (CB 47). The applicant was advised that he was entitled to attend a Tribunal hearing to give oral evidence in support of his claims. He was asked to inform the Tribunal within 21 days whether or not he wished to do so. The applicant was further advised that if he did not contact the Tribunal within 21 days, it would be assumed that he did not wish to come to a hearing and the Tribunal might make a decision on his application without further notice. This letter was sent to the applicant at his nominated postal address and a copy was also sent to his adviser. No response was received from the applicant so the Tribunal contacted the adviser who confirmed the applicant’s address. The Tribunal sent a further invitation to the applicant at his residential address on 8 January 1999. No response was received and the second letter was returned to the Tribunal marked “unclaimed”. In the circumstances, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not accept that the fact the applicant obtained a passport with the assistance of his friends demonstrated that he was of concern to the authorities, noting that that, of itself, did not indicate that the applicant would not have been able to obtain a passport through normal means;
b)the Tribunal was not satisfied on the material before it that the applicant’s claims, even if they were factual, amounted to persecution under the Convention, noting that the applicant did not provide any further information to support his claims despite ample opportunity to do so; and
c)the Tribunal was not given the opportunity to explore aspects of the applicant’s claim with him and a number of relevant questions were left unanswered.
Proceedings in this Court
Applicant alleges jurisdictional error
The amended application alleged:
a)the Minister’s decision was affected and induced by fraud; and
b)the Refugee Review Tribunal’s decision was affected and induced by fraud.
The fraud alleged is said to be that of the applicant’s migration agent.
The applicant’s evidence was that, contrary to what was contained in his protection visa application, his real story was that he had been an active Christian in China, leading prayers and Bible readings. He alleged that he was charged with running an illegal underground church which resulted in his detention and mistreatment. After a period, he was able to escape to Australia.
Following arrival in Australia he was introduced to a migration agent to whom he told his story. The migration agent submitted a protection visa application which did not reflect his claim but, instead, the facts set out above at [5]. The agent did not ask him to sign the protection visa application form but, rather, a blank sheet of white paper. He never heard from his agent about the outcome of his protection visa application nor was he told about the application to the Tribunal and the outcome of that review.
He said that around the end of January 1999 he visited the agent’s office and was told by her that the decision on his application was not yet made and he would be contacted by her when it was. By January 2000 he had not heard anything and went to his agent’s office but was not able to speak to his agent at that time. He spoke to a man who appeared to be a colleague of the applicant’s agent and a migration agent himself. The applicant left. He made a third attempt to contact his agent by visiting her office in 2002 but the agent was not there and the applicant was greeted by the same man who had been there in 2000. The applicant could see that his agent was not in the office and he became anxious and scared about his situation.
The applicant sought the assistance of an alternative agent who said that he would have to pay $30,000 if his application was successful. He said that he did not receive the Tribunal’s decision until April 2007 by which time he was in detention at Villawood Immigration Detention Centre.
In his statutory declaration made on 27 February 2008 the applicant said that after his discussion with the second migration agent he did not go back to his original agent:
… because I was now afraid that I was unlawful and that she or the gentleman might expose me in order to get rid of me. I didn’t know what else to do and, because I was afraid I might be sent back to China and I knew that it would too dangerous for me there, I just stayed quiet and didn’t talk about my migration status with anyone.
In cross-examination the applicant was shown signatures which purported to be his own and which were reproduced in the Court Book at pages 10, 26, 31, 41 and 44. He denied that he had written any of those signatures. The applicant said that he asked his agent to do all necessary things for him and she did so. The thrust of his evidence was that she must have signed the documents reproduced in the Court Book. The applicant did acknowledge the signature on the application commencing these proceedings as being his own.
The applicant denied having received the Tribunal’s invitation to a hearing and, further, said that his agent had not told him about it. In fact, he did not know that his visa application had been refused until he received the Court Book.
He conceded that he had done nothing between 2002 and his detention in 2007 to find out what had happened about his visa application. He said he did not know what he could do, not daring to contact the Minister’s department or the Tribunal, fearing that he could have been arrested.
In summary, the applicant submits that his migration agent forged his signature and concocted the facts contained in his visa application and review application to the Tribunal and fraudulently misled him about his opportunity to give oral evidence before the Tribunal.
Minister concedes jurisdictional error
Regardless whether the applicant’s allegations can be made out, the Minister nevertheless concedes that the Tribunal’s decision is affected by jurisdictional error. The chronology of the applicant’s protection visa application is relevant to this issue and is as follows:
a)on 1 August 1998 the applicant arrived in Australia;
b)on 1 September 1998 he lodged his protection visa application;
c)on 23 September 1998 the delegate refused the visa application;
d)on 28 October 1998 the applicant applied to the Tribunal for review of the Tribunal’s decision;
e)on 17 December 1998 and 8 January 1999 the Tribunal wrote to the applicant at his home address and his nominated address for service, copied to his migration agent, asking him to indicate whether he wished to attend a hearing. No response was received from the applicant and, as recorded above, the Tribunal proceeded to a decision without giving the applicant an opportunity to appear before it; and
f)the Tribunal’s decision was made on 29 January 1999.
The Minister concedes that the Tribunal’s decision was affected by jurisdictional error because the Tribunal did not fix a time and place for the hearing of the review and give to the applicant notice that he was entitled to appear on that occasion, free of a condition that he elect within a certain time whether he wished to attend such a hearing: Xie v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 543.
Because the Tribunal’s decision is affected by jurisdictional error, subject to other considerations, it ought to be set aside.
Jurisdictional issue
As a threshold matter, whether the Tribunal’s decision should be set aside depends on whether the Court has jurisdiction to entertain this application. The Minister submitted that the Court had no such jurisdiction because the proceedings were out of time by reason of the time limit found in s.477 of the Act. The Minister also submitted that, in any event, the Court ought to exercise its discretion to refuse relief by reason of unwarrantable delay on the part of the applicant in bringing the proceedings.
Section 477 provides:
(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. …
In order to determine when the 28 day time limit commences to run, it is necessary to determine when actual notification of the Tribunal’s 1999 decision was effected.
In 1999 the Act did not contain the provisions prescribing the methods of notification and the deeming of notification of the Tribunal’s decision which were considered in Minister for Immigration v SZKKC [2007] FCAFC 105 and which, with one irrelevant exception, were inserted into the Act in 2001 by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001. Relevantly, in 1999, the Act provided:
430 Refugee Review Tribunal to record its decision etc. and to notify parties
(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a)sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
(2) The Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection (1) within 14 days after the decision concerned is made.
At the time, reg.5.03 of the Migration Regulations 1994 (“Regulations”) provided that a document would be taken to be received by the addressee in certain circumstances but such a deeming provision can have no effect in light of s.477(1).
Because, at the relevant time, there was no mandatory process by which documents were to be given to applicants, as is now found in div.7A of pt.7 of the Act, and because s.477(1) renders ineffective those provisions in the Regulations which had the effect of deeming notification, in order to determine when time runs under s.477, in this case it is simply a matter of determining when the applicant actually received notification of the Tribunal decision. In this connection, the decision of the High Court in WACB v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 79 ALJR 94 gives guidance as to the meaning of “give” as found in s.430(2), as it was in January 1999. Referring to the “code” for the delivery or notification of Tribunal decisions introduced on 1 June 1999 by the Migration Legislation Amendment Act (No. 1) 1998, Gleeson CJ, McHugh, Gummow and Heydon JJ said at 101 [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. (footnotes omitted)
In his affidavit sworn 14 November 2007 the applicant deposes to having received a copy of the Tribunal’s decision in April 2007. These proceedings were commenced on 14 November 2007. Clearly, these proceedings were not commenced within 28 days of actual notification to the applicant of the Tribunal’s decision and although the application contains a request for an extension of time under s.477 of the Act, as that request was made as part of the application filed on 14 November 2007, it was made outside the 84 day window during which an extension of time might be sought. There has been no suggestion that such an application was made any earlier.
In SZIIU v Minister for Immigration [2008] FMCA 69, Raphael FM held in circumstances where an applicant sought review in 2006 of a Tribunal decision dated approximately three months before the decision the subject of these proceedings:
It is also argued that the applicant’s filing of her application in February 2006 was within any time limit because there was no evidence that the Tribunal decision was actually notified to her in the sense of being personally served as is required by s.477 of the Act: Minister for Immigration v SZKKC [2007] FCAFC 105.
The SZKKC argument cannot avail this particular applicant because the Act as it applied on 22 October 1998 did not establish a code for notification and there was no equivalent to the current ss.430B(6) and 441C, which the court in SZKKC regarded as crucial to its decision that all the methods mentioned in the current s.441A with the exception of s.441A(2)) involved receipt and so could not constitute “actual (as opposed to deemed) notification” within s.477(1). (at [4] – [5])
So it is here. The law on 29 January 1999 in relation to matters such as this was no different to the law on 22 October 1998 which was considered in SZIIU’s case. This means that the applicant’s application to this Court had to be filed within 28 days of the April 2007 notification to him of the Tribunal’s decision. As it was not, it is out of time.
Conclusion
I find that the Court has no jurisdiction to entertain the application because it has been brought out of time. Consequently, the application must be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 26 March 2008
0
4
3