SZMPS v Minister for Immigration - [2008] FMCA 1584

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMPS v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1584

MIGRATION – RRT decision – application to Tribunal outside time limit – agent blamed for delay – whether fraud by agent on applicant, Department or Tribunal – insufficient evidence to find fraud – application dismissed.

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)

Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189

Applicant:

SZMPS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2050 of 2008

Judgment of:

Smith FM

Hearing date:

21 November 2008

Delivered at:

Sydney

Delivered on:

21 November 2008

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr P Reynolds

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,750.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2050 of 2008

SZMPS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 7 August 2008, in which the applicant seeks orders compelling the Refugee Review Tribunal to entertain an application for review which was lodged with it on 8 August 2006. It requested the review of a decision of a delegate made on 2 May 2006, which refused to grant a protection visa to the applicant.
The Tribunal declined jurisdiction on the ground that the review application was lodged outside the 28 day mandatory time limit, which is provided under provisions of the Migration Act and Regulations. These provisions are detailed in the Tribunal’s decision, and it is unnecessary for me to do this again. The Tribunal concluded that time ran under the deeming provisions of the Migration Act from a date seven working days after the date of the delegate’s letter, which was 2 May 2006. It found that the time within which a review application could be made ended on 8 June 2006, and that the application received on 8 August 2006 was therefore outside the mandatory time limit. The Tribunal’s discussion of the relevant legislation, and its identification of the relevant dates, was, in my opinion, plainly correct.
The applicant now invites the Court to find that the delay in lodging the review application can be ignored or overcome by contending that it was “due to third party (migration agent) fraud”. A document purporting to be an affidavit of the applicant contends that “My migration agent Orchid Sit failed to inform me the progress of my protection visa application” and “failed to lodge review application with the RRT within legal time frame”. It also contends that “I was not advised by the agent about the outcome of my protection visa application”. However, as well as lacking a relevant factual narrative, this document was not properly sworn with the assistance of an interpreter. I could give it no weight, and therefore invited the applicant to give sworn oral evidence. She also requested that oral evidence should be received from her daughter, who accompanied her to today’s hearing. Their evidence did not support the contentions in the applicant’s ‘affidavit’.
The applicant’s original protection visa application did not identify a person who assisted its completion, and did not appoint an authorised recipient for correspondence. The delegate’s letter was therefore sent to the address given to the Department in the visa application as the applicant’s “current residential address” and her “current postal address in Australia”. On sworn evidence by the applicant and her daughter given to the Court, it was, in fact, the address where they were both living at the time of the visa application and the subsequent correspondence from the Department and Tribunal.
Although initially the applicant and her daughter denied any recollection of receiving the delegate’s refusal letter, ultimately I understood the daughter to have recalled reading the letter after it was received at their address, and taking it to obtain advice from an agent who had previously been paid money to help her mother with the visa application. They both identified that person as Ms Meilan Sue. There is no evidence that this person is also called “Orchid Sit”. They now claim that the person they consulted was not properly registered as a migration agent at the time. However, there is no evidence before me to establish the relevant facts relating to the migration registration of the person employed by the applicant.
Based on the daughter’s evidence, I find that she probably took the delegate’s refusal letter to Ms Sue in August 2006. The daughter volunteered a memory of making a visit to the agent in that month, in which she sought advice on a letter to her mother which referred to a 28 day visa. She ultimately conceded that this probably involved a discussion of the delegate’s refusal letter, which also included notice of the grant to her mother of a 28 day bridging visa.
The review application lodged with the Tribunal on 8 August 2006 has a signature which the applicant recognised as her own, as did her daughter. The signature is dated 8 August 2006. On the balance of the evidence, it appears to me more likely than not that the review application was lodged on the same day that the agent obtained the applicant’s signature on the review application, and that this was probably also the date on which the agent was consulted about the refusal letter and the bringing of an appeal.
If these findings are correct, there was no delay for which the agent can be blamed in lodging the appeal. The critical period of delay resulted from the slowness of the applicant, assisted by her daughter who reads English, in acting upon the information in the delegate’s letter. Certainly, in my opinion, the evidence is too unclear for me to conclude that there was any direct causal connection between any action of the agent and the delay which caused the appeal to be lodged out of time.
It might be arguable that the agent’s inserting of the applicant’s own address in the visa application, rather than the address of an authorised recipient, provided a remote cause of the delay in lodging the review application. It resulted in the refusal letter being sent to the applicant’s own address, thereby requiring her without supervision to lodge an appeal or seek further advice within the 28 day period. The absence of a more experienced recipient may have contributed to the delays in the applicant and her daughter seeking advice on the letter, and appreciating the urgency required for an appeal.
However, there are many possible reasons why the form might have been completed in that manner, and I am not persuaded that it occurred by reason of any misconduct on the part of the agent. The evidence concerning the relevant events is so minimal, that I could not conclude that the completion of the form in this manner by the agent was itself, or was part of, conduct which could be characterised as fraudulent on either the applicant, the Department or the Tribunal, within principles referred to by the High Court in SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189, see also Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
I am therefore not persuaded that the circumstances of the late lodgement of the review application with the Tribunal provide any foundation for applying those principles, so as to allow the Court to find jurisdiction in the Refugee Review Tribunal.
Since my decision turns on the state of the evidence before me, I do not need to consider whether as a matter of legal principle, SZFDE can be applied so as to overcome the mandatory time limit on the Tribunal’s jurisdiction. However, I have some doubt about that.
For the above reasons, therefore, I am not persuaded by the ground which was put forward in the application to the Court for a finding that the Tribunal had jurisdiction. The Tribunal’s decision on its jurisdiction was, in my opinion, correct. I must, therefore, dismiss the application.
I note that the Minister has not sought dismissal of the application on the ground of the applicant’s delay in applying to the Court after the Tribunal’s decision in October 2006. The circumstances concerning this delay were not explored in any evidence before me.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 26 November 2008