SZMVU v Minister for Immigration & Anor
[2008] FMCA 1733
•18 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMVU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1733 |
| MIGRATION – Visa – Protection (Class XA) Visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of the Minister’s delegate refusing the applicant a protection visa – allegation of fraud – no evidence of fraud. PRACTICE & PROCEDURE – Delay – Jurisdiction – notification – application filed out of time – incompetent. |
| Migration Act 1958 (Cth), ss.430, 477 |
| SZKNX v Minister for Immigration and Citizenship [2008] FCAFC 176 |
| Applicant: | SZMVU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2690 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 December 2008 |
| Date of Last Submission: | 18 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2008 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Not legally represented |
| Counsel for the Respondent: | Ms Johnson |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed as incompetent as the court has no jurisdiction.
The applicant is to pay the first respondent’s costs fixed in the sum of $3,500.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2690 of 2008
| SZMVU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant is a citizen of the People’s Republic of China. He is currently an inmate of the Immigration Detention Centre at Villawood, New South Wales. He has filed an application for judicial review of a decision of the Refugee Review Tribunal that was signed on 22nd July 2002, and handed down on 13th August in that year.
The applicant commenced these proceedings on 20th October 2008.
He is seeking orders in the nature of certiorari setting aside the Tribunal decision, and in the nature of mandamus asking that his application be reconsidered by the Tribunal according to the law.
The applicant relies on two grounds in which he claims jurisdictional error was occasioned. They both relate to an allegation of fraud by his then migration agent.
He claims first of all that he was not informed by his migration agent of the decision of the second respondent, the Tribunal, and consequently lost the opportunity of lodging a judicial review application. Second, he complains that by means of the fraud of his migration agent, this led to inconsistencies between his original application for a protection visa, and evidence provided at the hearing of the Refugee Review Tribunal. He claims that this directly led to the adverse conclusion made by the Tribunal not to grant a protection visa.
In support of those claims he has sworn an affidavit in which he deposes that due to his lack of English and legal knowledge, he hired a migration agent to represent him dealing with his application for a protection visa. He goes on to say:
The agent helped me to lodge the application but failed to put in the application the accurate information in relation to my persecution background in China. The application was then refused by a delegate of DIAC and the RRT. The agent also failed to inform me of the decision of the RRT as well as my legal rights, after the RRT refused my review application. Consequently, I lost the opportunity of appealing my case with the court.
It would appear that the matters deposed to in the applicant’s affidavit and the grounds upon which he relies, go more towards an explanation of the delay in bringing his application than they do towards establishing any jurisdictional error. There is, however, another difficulty which the Minister has raised in the amended response. The Minister filed an amended response on 10th December 2008. In that response the Minister claims that the Court has no jurisdiction to review the Refugee Review Tribunal decision, because subsection 477(1) of the Migration Act applies, and the application was not filed within 28 days of actual notification of the Tribunal decision.
In addition, the Minister claims that the application for judicial review does not establish any jurisdictional error in the decision of the Tribunal. The Minister also submits that the application should be dismissed at the exercise of the court’s discretion because of the applicant’s unexplained and unwarrantable delay in bringing the application.
The Minister has also filed a written outline of submissions and an affidavit of Katherine Elizabeth Whittemore, solicitor, in which she sets out that on 8th December 2008 she received a copy of the Villawood Immigration Detention Centre’s client correspondence register for 15th April 2008. That document is annexed to Ms Whittemore’s affidavit. The significance of that document relates to the Minister’s contention that the application is out of time under the provisions of s.477(1) of the Migration Act.
An application for judicial review of a decision of the Tribunal must be filed within 28 days of actual notification. If the application is not filed within 28 days as provided, but is filed within a further period of 56 days, then the Court may extend the time in which the application may be filed. However, if the application is filed more than a total of 84 days from the date of actual notification, then the application is incompetent because it is out of time, and the Court has no jurisdiction. This is the situation which the Minister contends is the position in this case.
The applicant has attended court, and whilst he has not filed any written outline of submissions he has given oral evidence and has made an oral submission. In the course of his oral evidence he was asked some questions from the Bench, and he was cross-examined by Ms Johnson, solicitor, who appeared for the Minister.
The difficulty with jurisdiction begins with the claim in the applicant’s application that although the decision of the Tribunal was made on
22nd July 2002, he was not notified until 25th June 2008. Even if the applicant had been notified on 25th June 2008, it can be seen that an application filed on 20th October 2008 would be out of time. Not only would it be more than 28 days from the date when the applicant claims that he was actually notified, it is more than a further 56 days from the 28 days, which is the period of time within which the Court has the power to make an order in appropriate circumstances, extending the time to make an application.
As has been submitted, the last day the applicant could have filed his application for judicial review following actual notification of the decision was 17th September 2008. It was not filed until 20th October 2008, and it is submitted that it is therefore incompetent. I am referred to the decision of the Full Court of the Federal Court in a recent decision of SZKNX v Minister for Immigration and Citizenship,[1] where their Honours said at [25], per Sundberg, Emmett and Tracey JJ. Their Honours said:
Irrespective of how the Tribunal has complied with its obligation under s. 430(2), if an applicant has physically received a copy of the Tribunal’s decision and reasons, as has happened in the present case, there has been actual notification of the decision for the purposes of s 477.
[1] [2008] FCAFC 176.
In this case however, the applicant agreed in cross-examination that the date of 25th June 2008, when he claimed that he received a copy of the Tribunal decision was incorrect. The applicant identified a copy of a form headed ‘Request for Decision from Refugee Review Tribunal’, dated 14th April 2008 in which the applicant, then an inmate at Villawood, asked to be faxed a copy of his RRT decision.
The applicant identified his signature in English and Chinese on the document. That document is dated 14th April 2008.
He told the court in cross-examination in answer to a question by Ms Johnson that he had received the faxed decision at Villawood from the Tribunal within about a week or so. On being shown the annexure to the affidavit of Katherine Whittemore, the applicant identified his signature on the client correspondence register that forms annexure A of Ms Whittemore’s affidavit, which clearly shows that on 15th April 2008 at 14:40 hours, ie 2:40 pm in the afternoon, the applicant received and signed for the Refugee Review Tribunal decision.
The applicant has now conceded that he received an actual copy of the Tribunal decision on 15th April 2008. That means since his application was not filed until 20th October 2008, the application is out of time.
An applicant who was notified on 15th April 2008 would be required to file his application by, at the very latest, 8th July 2008, and even then that would be outside the 28 day period, and it would be necessary to seek an order from the court extending the time. It is therefore clear that the application is out of time, and it is so far out of time that the Court has no power to extend the time, and the Court has no jurisdiction to hear the application.
I will deal briefly with the substantive allegations in the application. The applicant claims a fraud by the migration agent in not having been informed of the Tribunal decision. It is not claimed that he was denied an opportunity to attend the Tribunal hearing, and he agreed that he did. He told the Court that what he told the Tribunal was not his true refugee claim, but what his migration agent had told him to say.
That forms the second part of his claim, because he alleges that there was a fraud by the migration agent, which caused inconsistencies between his original protection visa application and the evidence provided to the Tribunal hearing.
There is no fraud. There is no evidence of fraud whatsoever, at least in the sense of a fraud on the Tribunal which stultified the Tribunal’s processes. At the very most, there is a claim of negligence in the migration agent not having forwarded a copy of the decision to the applicant in time, but nothing turns on that point. The fact is the applicant has claimed that what he told the Tribunal when he attended the hearing was not in fact the truth. It appears there was a deception of the Tribunal, but a deception in which the applicant was complicit.
Even if the application to this Court had been in time, the grounds of review would have failed, because there is no evidence of fraud. As it is however, the application is incompetent because it is out of time.
I propose to order that the application is dismissed as incompetent, as the court has no jurisdiction.
There is an application for costs on behalf of the first respondent Minister. The amount sought is $3,500.00. In case such as this, costs follow the event in the normal course of events and there is nothing to remove this case from the general principle. The amount of $3,500.00 which the Minister seeks is an appropriate figure. Indeed it is a modest sum, and significantly below the amount provided by the scale.
The applicant says that he has no funds, and he has certainly been an inmate of the Immigration Detention Centre at Villawood for a number of months. Quite clearly he is not in a position to pay those costs, although that is not a reason not to make an order. I will allow six months to pay.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 15 January 2009
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