SZMME v MIAC

[2009] FMCA 323

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMME v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 323

MIGRATION – Visa – Protection visa – application for review of Refugee Review Tribunal decision made on 27 January 1999 – citizen of China claiming the application was not made on his instructions – where applicant did not attend the Tribunal hearing – whether the application for a protection visa was a valid application – whether the applicant made a valid application to the Refugee Review Tribunal – whether Tribunal decision compromised by fraud.

DELAY – Discretion – whether unexplained and unwarrantable delay – whether relief should be refused in the Court’s discretion – where Refugee Review Tribunal had no jurisdiction – where certiorari will lie but mandamus will not lie.

Migration Act 1958 (Cth), ss.412, 414, 425, 426, 474, 476
Migration Regulations 1994 (Cth) reg5.03

Sook v Minister for Immigration and Multicultural Affairs (1999) 86 FCR 584
Xie v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 543
SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487
SZGJO v Minister for Immigration & Anor [2005] FMCA 1349 followed
SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393
Minister for Immigration and Citizenship v SZIQB [2008] FCAFC 20 followed

Applicant: SZMME

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1701 of 2008

Judgment of: Scarlett FM

Hearing date: 17 December 2008

Date of Last Submission: 17 December 2008

Delivered at: Sydney

Delivered on: 27 April 2009

REPRESENTATION

The Applicant: Appeared in person

Counsel for the Respondents: Mr Kennett

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant is to pay the First Respondent’s costs fixed in the sum of $9900.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1701 of 2008

SZMME

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. The applicant, a citizen of the People’s Republic of China, applies for review of a decision of the Refugee Review Tribunal made on

   
   27^th January 1999

   , affirming a decision not to grant him a Protection visa. He seeks the following:

   (1)A declaration that he has not previously made an application to the first respondent, the Minister for Immigration and Citizenship, for a protection visa;

   (2)An order or declaration that the decision of the second respondent, the Refugee Review Tribunal, was made in excess of jurisdiction and is null and void; and

   (3)A writ of certiorari.

2. The applicant relies on the following grounds:

   (1)The second respondent had no authority under the (Migration) Act to consider any application purportedly made for review of a decision of the first respondent to refuse the applicant a protection visa because the applicant had never made an application for a protection visa.

   (2)Further and in the alternative the second respondent acted pursuant to a process compromised by the fraudulent conduct of a person representing himself as a migration agent. As a result of the fraudulent conduct the jurisdiction of the second respondent was not properly exercised.

3. The particulars of the first ground are that the application purportedly made by the applicant to the first respondent for a protection visa was not a valid application because it was not authorised by the applicant and was fraudulently made by a person who claimed to be a migration agent acting on behalf of the applicant.

4. The first respondent, the Minister for Immigration and Citizenship, has filed a Response claiming that the application should be dismissed in the exercise of the Court’s discretion because of the applicant’s unexplained and unwarrantable delay in brining the application.

Background

1. The applicant arrived in Australia on 11^th July 1998. On 10^th August 1998 the Department of Immigration and Multicultural Affairs as it then was received an application for a protection visa apparently signed by the applicant, although the applicant has since claimed that it was not lodged with his authority. A delegate of the Minister refused the application on 8^th September 1998.

Application to the Refugee Review Tribunal

1. On 7^th October 1998 the Refugee Review Tribunal received an application for review of that decision, apparently signed by the applicant, although he has since claimed that it was not lodged on his instructions. The application for review bore the name and address of one George Ao, of Aus-China Service Centre, 323/401 Sussex Street, Haymarket, New South Wales.

2. The Tribunal wrote to the applicant on 2^nd December 1998 at his home address in the suburb of Cabramatta with a copy to Aus-China Service Centre. The letter was headed “Notice Under Section 426 of the Migration Act 1958”[1] and advised the applicant:

   [1] Court Book at page 46

   The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now entitled to come to a hearing of the Tribunal to give oral evidence in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person.

   You now need to tell the Tribunal

   ·    Whether or not you want to come to the Tribunal to give oral evidence; and

   ·    Whether or not you want to ask the Tribunal to obtain evidence from other people.

   Please complete the enclosed “Response to Hearing Offer” form and return it to the Tribunal by 23 December 1998.

3. The letter to the applicant’s home address was returned Tribunal unclaimed.[2]

   [2] Court Book at 47

4. The Tribunal decided the review on 27^th January 1998, affirming the decision not to grant the applicant a protection visa, and wrote to him at his home address the next day, enclosing a copy of the decision.

The Refugee Review Tribunal Decision

1. In its decision, the Tribunal gave these reasons for deciding the case without a hearing:

   The applicant was advised that he was entitled to come to a hearing of the Tribunal to give oral evidence in support of his claims and was asked to tell the Tribunal within 21 days whether or not he wished to do so. The applicant was advised that if he did not contact the Tribunal within that 21 day period, it would be assumed that he did not wish to come to a hearing and that a decision could then be made without further notice. The letter was sent to the applicant at the nominated address in accordance with the regulations. A copy was also sent to the applicant’s adviser. No response has been received. In these circumstances the Tribunal is satisfied that it has discharged its obligation to provide the applicant with the authority to give oral evidence before it and that the applicant has effectively declined that opportunity. This matter has therefore been determined on the evidence before the Tribunal.[3]

   [3] Court Book 54

2. The Tribunal set out the applicant’s claims and gave these reasons for refusing the application for review:

   The applicant has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but has not provided any further information in support of his claims despite being given ample opportunity to do so. Nor has he given the Tribunal the opportunity to explore aspects of his claims with him. A number of relevant questions are left unanswered. The Tribunal is not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution within the meaning of the Convention.[4]

   [4] Court Book 55

Application for Judicial Review

1. The applicant filed an application and an affidavit in support on 3^rd July 2008. In his affidavit, the applicant deposed soon after he arrived in Australia, whilst talking to local Chinese people, he was introduced to a person who said that he could apply for permanent residency for him in Australia. He then deposed as to what happened next:

   [6]…That person invited me to an office in Chinatown and asked me to pay some money to him and sign some paper. Then he said that he was going to take care of my immigration matter.

   [7]    A few weeks after I paid the money to that person, I was contacted once again. On that occasion I was told to pay more money. I asked him what it was for, and he said it was for payment of my second stage application. I couldn’t say that I trusted that person that much, but at the time because I didn’t know much about immigration law, nor knew many people in this country, I felt that he was at least helping me.

   [8]    After that second payment, I never heard from that person. Initially it didn’t concern me as I was told by other people that immigration application would take a long time to be processed. Time went by quickly, and when I haven’t heard from the person for a couple of years, I started to get suspicious. I therefore went to the person’s then office in Chinatown. The office had changed tenancy long time ago. I looked every possible place but I couldn’t find the person.[5]

   [5] Applicant’s affidavit filed 3 July 2008 paragraphs 6 - 8

2. The applicant deposed that eventually he went to see a migration agent who found out that he had applied for a protection visa. He then joined a class action.

3. The applicant was apprehended by officers from the Department of Immigration on 10^th May 2007. He was detained at the Immigration Detention Centre at Villawood.

4. On 5^th June 2007 he applied for access to his departmental file.

5. The applicant was released from immigration detention on 20th July 2007.

6. He applied to the Minister for the exercise of the Minister’s discretion on 10^th October 2007. His application was refused on 25^th March 2008.

7. The applicant obtained a copy of his departmental file on 14^th June 2008. He ascertained that the migration agent whom he had originally seen was named George Ao. He only knew him as George. He also ascertained that George Ao’s name had been removed from the register by the Migration Agents Registration Authority on 23^rd October 2001. He annexed a copy of the decision to his affidavit.

8. The decision said:

   Pursuant to section 303(a) of the Act, the Agent is advised that, following consideration of the facts before it, the Authority has determined to cancel the registration of the Agent by removing his name from the register as it was satisfied pursuant to section 303(h) of the Act that the Agent has not complied with the Code of Conduct applicable from time to time and, further, as it was satisfied under section 303(f) of the Act that the Agent is not a person of integrity or he is otherwise not a fit and proper person to give immigration assistance.

9. The applicant annexed a copy of his protection visa application to his affidavit. He identified his signature but said:

   I do not recall ever seeing these documents before. I was asked by George to sign some forms in 1998, but none of the answers in the form had been filled out. I was never told what the forms were, nor was anything translated to me. I definitely did not know that they related to a protection visa application. All I was told was that once I had signed the forms I could get a visa to stay in Australia. As far as I can recall those documents were (sic) had not been completed.[6]

   [6] Applicant’s affidavit 3 July 2008 paragraph 17(b)

10. The applicant annexed a copy of the Protection Visa Decision Record dated 8 September 1998 to his affidavit. He denied that he had ever made the specific claims summarised in the decision. He went on to depose:

    I never knowingly made any application to the RRT, nor was I ever told of an RRT hearing.[7]

    [7] applicant’s affidavit paragraph 17(d)

11. The applicant was initially represented by a solicitor but was no longer represented by the time he attended Court on the hearing of the application. He gave oral evidence and was cross-examined by

    
    

    Mr Kennett of counsel, who appeared for the Minister.

12. The applicant said that he had arrived in Australia on 11^th July 1998 on a visa that authorised him to stay in Australia for three months. He knew that he had to return home within a fairly short time unless he could get another visa. He identified his signatures on Parts B and C of the protection visa application[8]. He agreed that he knew the forms were official government forms constituting an application for a visa to allow him to stay in Australia.

    [8] At pages 10 and 23 of the Court Book

13. The applicant said that George the migration agent told him that he could get a visa to stay permanently in Australia and work in Australia. He denied that George told him he was going to make an application that involved a claim that he was a refugee. He said that he asked George about what he was going to do, only to be told “Even if I told you, you wouldn’t understand”.

14. He said he made two payments to George, first $1000.00 and then $800.00.

15. The applicant said that George told him that he was applying for permanent residency for him. He knew that there was an application for a visa to let him stay in Australia. He agreed that he was prepared to leave all the details to George.

16. The applicant was shown a copy of the application to the Refugee Review Tribunal. He denied that the signature on the application[9] was his. He said that he had nothing to do with filling in that form.

    [9] Court Book 42

17. The applicant gave evidence that between the visits to George he spoke to him on the telephone. When the applicant asked him how the case was going, George said:

    OK, trust me. You can stay. You can work. I am working on these things. 

18. The applicant specifically denied that George told him at any time that there had been a decision by a delegate of the Minister to refuse to grant him a visa. He also specifically denied that George mentioned the Refugee Review Tribunal to him.

19. Eventually, when the applicant tried to telephone George, he could not get an answer.

20. Later, he saw another migration agent called Simon, who told him that all George had done was make a refugee application for him. Simon told him about the class action he was running and the applicant agreed to join. He agreed that he joined the class action on 1^st July 2001. He said he did not understand that the people who joined the class action were people who had applied for refugee visas and had been refused. He agreed that to join the class action he had to be a person who had been refused a visa. The class action finished in 2003.

21. The applicant said that he was taken into detention in May 2007 and released on payment of a bond in July 2007. He received a Bridging Visa. He did not intend to leave Australia.

22. In re-examination the applicant said that when he was at Villawood he told the Department that he would like to go back to China, but when he was released he was told he would be persecuted if he returned.

23. Counsel for the Minister tendered the following documents which were admitted into evidence:

    (1)Application to the Minister to make a second application for a protection visa, dated 17^th August 2007;

    (2)Department’s reply dated 19 September 2007, refusing the request;

    (3)Application to the Minister to use his power under s.417 of the Migration Act, dated 10^th October 2007; and

    (4)Department’s reply dated 25/3/08 refusing the application.

Submissions

1. The applicant told the Court that he did not have a lawyer because he was not allowed to work.

2. Mr Kennett submitted on behalf of the Minister that the court had no jurisdiction to make the first order sought by the applicant, because the decision of the Minister’s delegate to refuse the application for a visa is a primary decision under s.476(2) of the Act.

3. He conceded that there was a strong evidentiary case that the application to the Refugee Review Tribunal was prepared without the applicant’s knowledge. The signature, in Chinese script, on the applicant’s affidavit does not look the same as the signature on the application to the Refugee Review Tribunal, which the applicant denied was his. If the applicant made no application to the Tribunal then certiorari would lie to set aside the Tribunal’s decision, but no further order would lie. That, he submitted, would be the end of the case, unless the Court made a discretionary decision not to grant relief.

4. The next question to be considered is whether the applicant applied for a protection visa in the first place. If he did not, all that the Refugee Review Tribunal could properly have done was to set aside the delegate’s decision and therefore would have been in error in dealing with the application on its merits.

5. If there had never been a valid visa application but there was a decision by the delegate, the only thing that the Tribunal could do is set aside the delegate’s decision.

6. Mr Kennett submitted that there was a valid application by the applicant for a protection visa. That being the case, there was power in the delegate to refuse the application. If the applicant did make a valid application to the Tribunal then the Tribunal would have had power to deal with it on its merits.  

7. It was submitted that if the Tribunal had power to deal with the application, the Court would then need to consider the fact that the Tribunal’s process of inviting the applicant to a hearing and the way it dealt with his failure to respond did not comply with the provisions of the Migration Act.

8. First, the Tribunal’s letter did not tell the applicant that any request to the Tribunal to hear from a witness would need to be made within seven days of his receipt of the letter (s.426(1)(b), (2)). The letter asked the applicant to return the enclosed form by 23^rd December 1998, which was 21 days after the date of the letter (and 14 days after the deemed receipt of the letter, (Migration Regulations 1994, reg.5.03).

9. Mr Kennett submitted that in this respect the notice was identical to the notice which was held in Sook v Minister for Immigration and Multicultural Affairs[10] at 596-597[30]-32] to constitute a reviewable error.

   [10] (1999) 86 FCR 584,

10. The second problem with the Tribunal’s decision, it was submitted, is that the Tribunal, having received no response from the applicant, assumed that he did not wish to attend a hearing and did not schedule one. However, it was held in Xie v Minister for Immigration and Multicultural Affairs[11] that this practice with s.425 as it stood at the time. It was conceded on behalf of the Minister that non-compliance with s.425 is an issue going to the Tribunal’s jurisdiction.

    [11] (1999) 95 FCR 543

11. Turning to the question of discretionary factors, Mr Kennett submitted that, accepting that certiorari would lie to set aside the Tribunal decision but two other factors need to be considered:

    (i)whether anything remains to be done by the Tribunal and whether mandamus would lie depends on whether an application was actually made to the Tribunal; and

    (ii)if the Tribunal does have more to do, whether its functions properly extend to deciding the merits of the case will depend on whether a valid application was made for a protection visa.

12. The submission is that, either way, relief should be withheld on discretionary grounds. The applicant’s long delay, his lack of interest in resolving his migration status until he was taken into detention and his applications to the Minister, premised on the prior valid refusal of a visa application, are inconsistent with the relief that the applicant now seeks (see SZGME v Minister for Immigration and Citizenship[12]at 502-503 [51]-[52]).

    [12] (2008) 168 FCR 487

Conclusions

1. The first matter to be decided is whether the applicant made a valid application for a protection visa.

2. The applicant’s first ground claims that the application purportedly made by the applicant to the Minister’s department for a protection visa was not a valid application because it was not authorised by the applicant but was fraudulently made by a person who claimed to be a migration agent acting on the applicant’s behalf.

1. The applicant’s evidence is that he agreed to use the services of George Ao, who was then a registered migration agent, to obtain a visa for him. The applicant said in his affidavit that Mr Ao said he could obtain permanent residency for him.

2. The applicant denied that he knew that the visa application was for a protection visa, but conceded that he had signed the application forms, knowing that they were an application for a visa to let him stay in Australia. He agreed that he was prepared to leave all the details to George.

3. In SZGJO v Minister for Immigration & Anor[13] at [33]-[40] Driver FM considered whether an application for a protection visa made on behalf of the applicant was valid. The facts as found by his Honour at [37] are not dissimilar to those of the present case:

   [13] [2005] FMCA 1349

   a)the applicant came to Australia with the intention of obtaining a visa that would give him the right to work here and would allow him to remain for an extended period;

   b)he expected to have to pay for it, just as he had paid for documents which enabled him to leave China;

   c)the applicant consulted a migration agent (Jason Shiao) and paid him $6,000 with the intention that Mr Shiao would obtain the desired visa;

   d)the applicant instructed Mr Shiao to make application on his behalf for a protection visa;

   e)the applicant provided Mr Shiao with information to enable that to be done;

   f)the applicant did not sign the protection visa application and did not specifically authorise Mr Shiao to sign it on his behalf, but neither did he withhold that authorisation from Mr Shiao: Mr Shiao had a general authority from the applicant to make a protection visa application on behalf of the applicant;

   g)the applicant was informed by Mr Shiao and understood that his instructions had been carried out, namely that a protection visa application had been made on his behalf and was being considered by DIMIA;

   h)the applicant made no enquiry as to the content of the protection visa application but expected to be informed of its outcome;

   i)he was not so informed

4. His Honour went on to say:

   It is open to me to conclude that the applicant wanted a long term visa that carried with it work rights and was not too particular how he got it. A protection visa application proved to be the preferred mechanism but the applicant showed little concern as to its contents. His interest was in the outcome.[14]

   [14] [2005] FMCA 1349 at [38]

5. Driver FM found that the protection visa application made on behalf of the applicant was valid. On appeal, Bennett J found that Driver FM was not in error in finding that, in the circumstances, the visa application was valid (see SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs[15] at [16]).

   [15] [2006] FCA 393

6. The fact situation in the present case is similar, except that the applicant gave evidence that he was not aware that his visa application was for a protection visa, although he did say in cross-examination that people discriminated against him in China after the Tiananmen Square incident and “when I came to Australia I realised this country had a good law system so I wanted to stay”. Unlike the applicant in SZGJO, the applicant in this case did sign the application for a visa, knowing that it was a visa application that he was signing. He conceded that he was prepared to leave all the details to Mr Ao. He wanted a visa that would give him the right to work and live in Australia permanently. He accepted the agent’s statement that he would not understand even if the agent were to tell him and he accepted the agent’s statement that he was “doing permanent residency” for him.

7. I find that the applicant made a valid application for a protection visa. It follows that the Minister’s delegate had the power to deal with the application and, as happened in this case, to refuse it.

8. Had there been a valid application to the Tribunal, the Tribunal would have had the power and the duty under s.414 of the Act to conduct a review.

9. The issue to be decided is whether the applicant did make a valid application to the Refugee Review Tribunal. The applicant has claimed that he did not give any instructions to the agent to make this application on his behalf. The most that can be said is that the applicant gave evidence in his affidavit that he had to make a further payment a few weeks after the first payment for “the payment of my second stage application”.[16] That evidence is too vague, in my view, to equate to any knowledge of an application to a Tribunal to undertake a merits review of the delegate’s decision to refuse the application for a protection visa. The applicant gave evidence that he was not aware of any decision of the delegate refusing the application for a visa.

   [16] Applicant’s affidavit paragraph 7

10. It is significant that the applicant readily conceded in the witness box that the signatures on Parts B and C of the application for a protection visa were his but denied that the signature on the application to the Refugee Review Tribunal was his signature. Mr Kennett of counsel very properly conceded in his submission that the applicant’s signature on his affidavit did not look the same as the signature on the application to the Tribunal. There is a significantly greater degree of resemblance between the applicant’s signature on his affidavit and the two signatures on the protection visa application at pages 10 and 23 of the Court Book.

11. The applicant denied that he ever gave authority for an application to the Refugee Review Tribunal and he was unshaken in cross-examination on this point. I am satisfied that his evidence should be accepted and I find that there was no valid application to the Refugee Review Tribunal for review of the delegate’s decision.

12. As there was no valid application under s.412 of the Act before the Tribunal, it had no power or duty to conduct a review under s.414.

13. Accordingly, as counsel for the Minister has submitted, the only possible relief is a writ of certiorari setting aside the Tribunal decision (see SZGJO v Minister for Immigration & Anor at [31]). There is no basis for the issue of a writ of mandamus because the Court cannot compel the Tribunal to do something it has no power to do (SZGJO at [32]).

14. I find that certiorari will lie to set aside the Tribunal decision but mandamus will not.

15. The Court is now asked to consider whether relief should be refused in the exercise of the Court’s discretion. The Minister submits that relief should be withheld because of the applicant’s lengthy delay in seeking relief.

16. It can be argued that certiorari without mandamus is a hollow remedy at best. Setting aside the Tribunal decision will not assist the applicant, because it is far too late for him to make an application to the Tribunal for review of a valid decision of the delegate made on 8^th September 1998. Either way, he is left with a valid decision refusing him a protection visa with no right of merits review.

17. The applicant applied for a protection visa on 10^th August 1998. On his own evidence, he waited for “a couple of years”[17] before he became suspicious and made inquiries. Eventually, he consulted the migration agent called Simon, who appears to have been a more reputable person than Mr Ao, in 2001, and found out that Mr Ao had applied for a protection visa on his behalf, which had been refused.

    [17] Applicant’s affidavit paragraph 8

18. The applicant then joined the class action at Simon’s suggestion in about July 2001. This action finished some time in 2003. The applicant was asked by counsel for the Minister if he had tried to get in touch with Simon. He replied:

    Yes, back then I was so busy with my work. About a year later I contacted him again. I asked him could I go higher.

19. The applicant said that he believed that this contact “probably” took place in 2005.

20. Nothing further seems to have happened until the applicant was detained 10^th May 2007 because he did not have a visa. Whilst he was detention he applied for a copy of his departmental file on 5^th June. He was released from detention on 20^th July 2007.

21. Surprisingly, it took the Department more than a year to provide him with a copy of the file. The letter releasing the documents is detained 12^th June 2008.

22. In the meantime, the applicant had applied, unsuccessfully, to the Minister under the provisions of s.48B of the Act and s.417. His s.417 application was refused on 25^th March 2008.

23. The applicant commenced these proceedings on 3^rd July 2008.

24. Counsel for the Minister submitted that it was not until he was taken into immigration detention in May 2007 that the applicant started to take a more active interest in his immigration status. He applied for a copy of his departmental file, which took more than a year to be provided to him. He made two applications to the minister for a discretionary remedy, actions usually taken after a protection visa application has been made and refused.

25. It is the Minister’s submission that the applicant has not explained the lengthy delay in commencing these proceedings. He could have started in 2001, when he found out that his application for a protection visa had been refused.

26. The applicant has commenced proceedings for review of a Tribunal decision made in January 1999. The delay is lengthy, over nine years, and has not been satisfactorily explained. The length of time taken by the Department to provide a copy of his file would only explain one year of the delay, but it is clear that the applicant was able to apply for Ministerial intervention on two occasions during that time. He was aware that his protection visa application had been refused by 2001, when he consulted the migration agent Simon and joined the class action. The class action finished in 2003, but the applicant did nothing further until May 2007, when he was detained.

27. The Full Court of the Federal Court has considered this issue in Minister for Immigration and Citizenship v SZIQB[18] where there had been a delay of seven years in seeking relief. Their Honours (Branson, Emmett and Bennett JJ) held 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. 

    [18] [2008] FCAFC 20

28. The Full Court also noted that there are both 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. Their Honours referred to the legislative intent “that the process of determining claims for protection visas should proceed expeditiously”.[19]

    [19] [2008] FCAFC 20 at [25]

29. In my view, the greater part of the delay in this case has not been satisfactorily explained at all. The applicant allowed Mr Ao two years before he started making inquiries. The agent Simon provided him with more accurate information in 2001, and the applicant then joined a class action that finished in 2003. The only explanation for the balance of the period until he was taken into immigration detention was that he was busy with work.

30. I also take into account the fact that the only remedy available to the applicant is a writ of certiorari setting aside the Tribunal decision. It appears to be a remedy in name only, as it is years too late for the applicant to apply to the Refugee Review Tribunal for review of the delegate’s decision.

31. In all the circumstances, it is a proper exercise of the Court’s discretion to refuse relief. The application will be dismissed.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  14 April 2009