SZMBN v Minister for Immigration

[2008] FMCA 503

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMBN & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 503

MIGRATION – Review of Refugee Review Tribunal decisions – refusal of protection visas – applicants claiming particular social group persecution in Bangladesh – applicants failing to attend Tribunal hearing – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.477

Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105
Minister for Immigration v SZLIX [2008] FCAFC 17

Applicant: SZMBN

Applicant: SZMBP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Numbers:

SYG 665 of 2008

SYG 667 of 2008

Judgment of: Driver FM

Hearing date: 17 April 2008

Delivered at: Sydney

Delivered on: 17 April 2008

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents: Ms B Anniwell
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. There be an immediate show cause hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth).

2. The Court directs that the transcript of today’s proceedings be obtained and provided by the Court to the Legal Services Commission, together with a copy of these reasons for decision, for whatever action the Commission deems appropriate.

3. A copy of the transcript of proceedings is to be placed on each court file and be made available to parties for inspection.

4. The applications are dismissed, pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth).

5. The applicants be jointly and severally liable to pay the first respondent’s costs and disbursements of and incidental to the applications, heard concurrently, in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 665 of 2008; SYG 667 of 2008

SZMBN

Applicant

SZMBP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me two show cause applications, filed on 19 March 2008. The applications, which were made separately, seek review of decisions of the Refugee Review Tribunal (“the Tribunal”), both handed down on 8 January 2008. The Tribunal affirmed decisions of the Minister's delegate not to grant the applicants protection visas. Because the applicants live together, made the same protection visa claims, obtained decisions in materially the same terms and filed show cause applications on the same day in the same terms I decided to hear the applications concurrently.

2. The applicants are from Bangladesh and had made the same claims of persecution in Bangladesh on the basis of their homosexuality. They both arrived in Australia on 30 March 2007 and applied for protection visas on 14 May 2007. The delegate refused their applications on 3 August 2007. On 10 September 2007 they both made application to the Tribunal for review of the delegate's decision. The Tribunal wrote to the applicants' authorised recipient, who is the same in both cases, on 19 October 2007, inviting the applicants to appear at a hearing on 20 November 2007. Both applicants failed to attend the hearing scheduled on that day. The Tribunal proceeded to make decisions on each review in the applicants' absence. Essentially, in both cases the Tribunal decided that it was unable to make a favourable decision because of insufficient information. The Tribunal wrote to the applicants on 10 and 11 December 2007 respectively, inviting them to the handing down of the Tribunal's decisions. Neither applicant attended the handing down.

3. Both show cause applications asserted notification of the Tribunal decision on 8 January 2008, that is the date of the handing down. Both applicants requested an extension of time for the filing of their applications, presumably on the basis that the period of 28 days prescribed by s.477 of the Migration Act 1958 (Cth) (“the Migration Act”) had expired, but the applications were filed within the period of 84 days specified in that section as the relevant period within which the Court could consider granting an extension of time.

4. Both matters came before me on 10 April 2008. I listed both matters for a preliminary hearing today, on the issue of the request for an extension of time. For the purposes of today's hearing, in addition to the applications and the supporting affidavits which I received as submissions, I received as evidence the affidavit of Brin Ellen May Anniwell, made on 14 April 2008. Affidavits were filed in both matters but the relevant facts are virtually identical. The Minister filed an amended response in both matters, asserting that the Court lacked jurisdiction to hear the applications, or alternatively seeking the refusal of an extension of time on account of delay. Further, or in the alternative, the Minister seeks summary dismissal of the applications on the basis that no arguable case for relief has been raised.

5. The Minister's solicitor tendered correspondence, which became exhibit R1, which establishes that both applicants were put on notice that the Minister might seek a show cause hearing in relation to the applications today. In the event, I ordered that there be an immediate show cause hearing. This was on the basis that, whether or not the applicants required an extension of time, a relevant issue was whether there was any arguable case for the relief sought by them.

6. It was obvious from the affidavit of Ms Anniwell that the asserted date of notification of the Tribunal decision could not be correct. Neither applicant attended the handing down of the Tribunal decision and could not have received the decision on the day that it was handed down. I questioned the applicants at the bar table about the circumstances in which they received a copy of the Tribunal decision. Both applicants told me that they only received one copy of the Tribunal decision, and that was received by post. It appears that the Tribunal's correspondence enclosing the Tribunal decisions had been received by the applicants some time after 8 January 2008 but they had not paid attention to it. It was only when they became aware of a problem in relation to their right to work that they checked their mail and discovered the Tribunal correspondence. That was on or about 22 January 2008.

7. The applicants told me that they then went to see their migration agent, Mr Raymond Faisal Solaiman, of Raymond Solaiman & Associates. Mr Solaiman had been representing the applicants before the Tribunal. The applicants told me that they saw Mr Solaiman on 24 January 2008 and instructed him to lodge an application in the Court for judicial review of the Tribunal decision. They told me that they each paid Mr Solaiman $700 for that service. However, it later came to their attention that no applications had been lodged. They saw Mr Solaiman again on 17 March 2008. Mr Solaiman required additional money. They each paid him an additional $350[1]. Following that payment, the judicial review applications were filed on 19 March 2008.

   [1] It is possible this was for the court filing fee

8. The statements made by the applicants from the bar table have the ring of truth about them. The solicitor for the Minister did not require formal evidence of these matters. The applicants tendered Mr Solaiman's business card, which became exhibit A1. That shows that he is a registered migration agent, number 0637372. However, there is no indication on the card that he is an admitted legal practitioner. The question therefore arises whether Mr Solaiman has been providing professional legal services for a fee that he is not entitled to provide. I will direct that these reasons and a copy of the transcript of the Court hearing conducted today be provided by the Court to the Legal Services Commission, for whatever action it considers appropriate.

9. In my view, the applicants have provided a plausible explanation for their delay in the filing of their applications. However, on the basis of the decision of the Full Federal Court in Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105, they do not require an extension of time, because they have never received actual physical delivery of a copy of the Tribunal decision. On the basis of that decision, delivery of a copy of the Tribunal decision by post is insufficient for the purposes of s.477 of the Migration Act. The Minister submits that the decision in SZKKC is wrong. I note that the High Court will shortly hear an appeal against that decision. In the meantime, this Court is bound by it.

10. If the applicants did require an extension of time, although I would be satisfied that they have provided a sufficient explanation for their delay in coming to Court, and that the delay was not excessive, I would have refused the extension of time, on the basis that there is no arguable case of jurisdictional error. The applications make bald assertions of legal error, with no particulars. In the absence of particulars, the assertions are meaningless. The applicants failed before the Tribunal because the Tribunal had insufficient information to make a favourable decision. Both applicants were warned of that situation by letters from the Tribunal dated 19 October 2007. They were invited to attend the hearing, at which they could have provided additional information to the Tribunal. Neither applicant attended the Tribunal hearing. Unsurprisingly, the Tribunal, in both cases, was left in the position that it could not make a favourable decision on the information before it. I accept from the affidavit of Ms Anniwell that the Tribunal met its legal obligations in inviting both applicants to a hearing.

11. The applicants told me from the bar table that they had placed their affairs in the hands of Mr Solaiman and expected him to attend to their interests. They believed that he would contact them if something significant happened. They told me, however, that Mr Solaiman did not contact them to tell them of the hearing invitation, although he had the means to do so. The applicants acknowledged that they had both received a copy of the hearing invitation in the mail at their home address, but that, because they were working away from home at the time, it did not come to their attention until after the hearing opportunity had passed. The applicants blame Mr Solaiman for the loss of the hearing opportunity. If what they say is true, they would have a genuine grievance. That is a matter which the Migration Agents Registration Authority (“MARA”) could properly inquire into. The applicants have the opportunity to complain to MARA, should they wish to. However, even if what the applicants say is true, it could not support an allegation of jurisdictional error on the part of the Tribunal. Mere incompetence, or inefficiency, on the part of a migration agent cannot invalidate a Tribunal decision[2]. There is no evidence of fraud by Mr Solaiman. The applicants conceded from the bar table that Mr Solaiman had not actually prevented them from attending the Tribunal hearing. Neither is there any evidence that Mr Solaiman actively misled the Tribunal in relation to anything relevant to the hearing. It is simply a case of a lack of communication between an agent and his clients. In my view, there is no arguable case of jurisdictional error by the Tribunal in either of these cases.

    [2] Minister for Immigration  v SZLIX [2008] FCAFC 17 at [33]

12. In the circumstances and, on the basis that, as the law presently stands, neither applicant requires an extension of time, I will dismiss the applications, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”), and I so order.

13. The applications having been dismissed, costs should follow the event. The Minister seeks costs in each matter, fixed in the amount of $2,000. That would permit the Minister to recover $4,000. In my view, significant savings have been achieved through the concurrent hearing of these applications. The applicants consented to that procedure and are entitled to the benefit of it. Scale costs at a show cause hearing are $2,500. The Minister should not be able to recover more than that. I will order that the applicants be jointly and severally liable to pay the first respondent’s costs and disbursements of and incidental to the applications, heard concurrently, in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  22 April 2008