SZMVV v Minister for Immigration
[2009] FMCA 245
•26 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMVV v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 245 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal’s decision was affected by a migration agent fraud – whether there had been a fraud perpetrated by a migration agent upon the applicant – whether the Refugee Review Tribunal had jurisdiction to consider the applicant’s review application. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 66(1); 91R; 91S; 412; 441G(1); 474; 494B; pt.8 div.2 |
| SZFDE v Minister for Immigration (2007) 232 CLR 189 SZLIX v Minister for Immigration and Citizenship (2008) 245 ALR 501 Briginshaw v Briginshaw (1938) 60 CLR 336 |
| Applicant: | SZMVV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2692 of 2008 |
| Judgment of: | Emmett FM |
| Hearing dates: | 12 December 2008, 5 February 2009 and 26 March 2009 |
| Date of last submission: | 26 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 26 March 2009 |
REPRESENTATION
| Applicant appeared in person assisted by an interpreter in the Fuqing dialect |
| Counsel for the Respondent: | Mr P. Reynolds |
| Solicitors for the Respondent: | Ms A. Crittenden and Mr G. Conomos, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2692 of 2008
| SZMVV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 October 2008 and handed down that same day.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and a practitioner of Falun Gong (“the Applicant”).
The Applicant arrived in Australia on 11 July 2005 having departed legally from China on a passport issued in his own name and a subclass 676 Tourist visa issued on 30 June 2008.
On 28 March 2006, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
On 3 May 2006, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 22 September 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 14 October 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 20 January 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
In his protection visa application, the Applicant claimed that he and his wife had become Falun Gong practitioners in China in 2001. The Applicant claimed he feared persecution for his practice of Falun Gong from the Chinese authorities. He claimed he and his wife were taken into custody by police while attending a Falun Gong meeting in April 2005 and paid a bribe for their subsequent release.
The Applicant claims he and his wife then travelled to Australia where they have been participating in Falun Gong activities.
The Delegate’s decision
On 3 May 2006, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The Tribunal’s review and decision
On 22 September 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided a handwritten letter in support of the review application, also dated 22 September 2008, in which the Applicant claimed:
“Due to migration agent fraud I missed opportunity to RRT of a decision. At the moment I am waiting for response of FOI request regarding my original application.”
No further particulars, evidence or submissions were provided by the Applicant in support of this bare allegation of migration fraud. Further, there was no evidence before the Tribunal of the appointment of any migration agent to assist the Applicant in the preparation of his protection visa application. Nor does the Delegate’s decision suggest that the Applicant had received the assistance of a migration agent. Certainly, no migration agent was appointed by the Applicant to assist the Applicant in the preparation of his application for review by the Tribunal.
Upon receipt of the lodging of the application for review, together with the Applicant’s letter alleging migration fraud, the Tribunal wrote to the Applicant on 22 September 2008 acknowledging receipt of the Applicant’ review application and inviting the Applicant to immediately send any documents, information or other evidence that the Applicant wished the Tribunal to consider. Nothing further was sent by the Applicant to the Tribunal in response to this invitation.
On 2 October 2008, the Tribunal wrote to the Applicant informing him that his application to the Tribunal must be made within 28 days of being notified of the Department’s decision. The letter informed the Applicant that his application for review had been received on 22 September 2008. The letter informed the Applicant that the last day he had to lodge his application for review with the Tribunal was 9 June 2006. Accordingly, the letter informed the Applicant that the Tribunal has no power to consider late applications. The letter stated that if the Applicant disagreed and was of the view that the Tribunal had power to consider his application, he should write to the Tribunal within 2 working days of the letter. The letter also contained the contact details of an information line and the Translating and Interpreting Service.
On 3 October 2008, a person identifying herself as a migration agent telephoned the Tribunal to request an extension of time for the Applicant to reply to the Tribunal’s letter dated 2 October 2008. The Tribunal’s case note stated that this person was advised to make any request by 7 October 2008 for any extension of time to answer the Tribunal’s letter. The case note also states that this person said she would send a formal authority to the Tribunal to confirm her appointment as the Applicant’s migration agent. However, no such document was received by the Tribunal.
A case note dated 7 October 2008, stated that this same person telephoned the Tribunal again on that date and informed the Tribunal that she was no longer acting for the Applicant. She requested that the Tribunal ignore the request for time to respond to its letter dated 2 October 2008. No other response was received by the Tribunal from the Applicant to its letter dated 2 October 2008. I note that there was no appointment of a migration agent received in writing by the Tribunal from the Applicant, as is required by s.441G(1) of the Act.
On 14 October 2008, the Tribunal wrote to the Applicant informing him that it had no power to determine his application and enclosing a copy of the Tribunal’s decision and reasons.
The decision of the Tribunal is accurately summarised by Mr Reynolds, counsel for First Respondent, in his written submissions as follows:
“8. The Tribunal found that it did not have jurisdiction in respect of the application to it (CB80-85).
9. The Tribunal summarised the applicable legislation as follows:
a) its jurisdiction arose if a valid application is made under section 412 of the Act for review of an “RRT-reviewable decision” (section 414);
b) the definition of an “RRT-reviewable decision” includes a decision to refuse to grant a Protection (Class XA) visa under section 65 of the Act (section 411(1)(c));
c) for an application to be valid, it must be within the prescribed time frame (section 412(1)(b)), being 28 days from notification of the delegate’s decision in respect of an applicant who has applied for review of an RRT reviewable decision under section 411(1)(c) and is not in immigration detention when notified of the delegate’s decision (Migration Regulations, reg 4.31(2)(b));
d) notification must be via the prescribed way (section 66(1)), being a one of the methods specified in section 494B (reg 2.16); and
e) one of the methods in section 494B includes the Minister dispatching the document within 3 working days of the date of the document by prepaid post or other prepaid means to the last address for service or the last residential or business address provided to the Minister by the recipient for the purpose of receiving documents (section 494B(4)). If a document is given via this method and the document was dispatched from a place in Australia to an address in Australia, the person is taken to have received the document 7 working days after the date of the document (section 494C(4)(a)), whether or not it has in fact been received;
f) section 66(2) provided that the notification of a decision to refuse a visa must contain certain information about why the visa was refused and, if there is a right of review, how to apply for review of the decision.
10. Applying the above, the Tribunal made the following findings:
a) the Applicant was not in immigration detention when notified of the decision and was seeking review of an RRT-reviewable decision. Therefore the applicable prescribed period was 28 days commencing on the day on which the Applicant was notified of the decision (section 412(1)(b) and reg 4.31(2)(b));
b) the contents of the delegate’s decision complied with the requirements of section 66(2);
c) the material before the Tribunal indicated that the decision notice dated 3 May 2006 was sent by prepaid registered post on 2 May 2006 from a place in Australia to the Applicant at an address in Australia, being the last residential address provided to the Minister by the applicant for the purposes of receiving documents;
d) accordingly, the decision notice was dispatched within 3 working days of the date of the letter to the correct address in accordance with sections 66(1) and 494B(4) and the Applicant was therefore taken to have received the notice on 12 May 2006, being 7 working days after the date of the notice;
e) the Applicant’s submissions did not provide any basis for accepting the review application. The Tribunal had no discretion to accept an application lodged out of time and there was no provision for an extension of time;
f) the prescribed period of 28 calendar days ended on 9 June 2006, whereas the application was not received until 22 September 2008;
g) in view of the above, the Tribunal concluded that the application for review was received outside the mandatory time limit and it therefore was an invalid application and it did not have jurisdiction.”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Fuqing interpreter.
The Applicant confirmed that he relied on the grounds contained in an application filed on 20 October 2008.
The grounds of the application are expressed to be as follows:
“1. The applicant is a citizen of the people’s republic of China.
2. The applicant applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 29 March 2006. The delegate to refuse to grant the visa on 3 May 2006.
3. Due to migration agent fraud, I missed the opportunity of appealing to RRT of the decision.
4. The applicant applied to the Tribunal on 22 September 2008 for review of the delegate’s decision.”
At the heart of the Applicant’s complaint to this Court was his bare allegation that fraud of a migration agent had denied him the opportunity to have the Delegate’s decision refusing him a protection visa reviewed by the Tribunal.
On 7 November 2008, the Applicant appeared before this Court at a directions hearing. On that occasion, the Court granted the Applicant leave to file and serve an amended application giving complete particulars of each ground of review relied upon. The Applicant was directed to file and serve any evidence by way of affidavit and also to file submissions in support of his application by 5 December 2008. The matter was set down for hearing on 12 December 2008. The Applicant was also referred to the Court’s legal advice scheme and received free legal advice on 26 November 2008.
No further documents were filed by or on behalf of the Applicant in accordance with those directions.
At the hearing, by consent, the Applicant was given leave to give sworn evidence in support of his allegation of migration agent fraud. The Applicant gave evidence which he confirmed in cross-examination that he did not know the name of the migration agent, that he had never spoken to or met with a migration agent and that he had done no more than give $600 to his daughter whom he understood would give the money to a migration agent to assist him to apply for a protection visa. In cross-examination the Applicant confirmed this evidence and said that he did not know how his protection visa application had been completed or made. The Applicant also agreed that he did not know if there was a migration agent or whether his daughter had given money to such a person. Further, the Applicant conceded in cross-examination that he did not know whether a fraud had been committed by a migration agent.
At the conclusion of the Applicant’s evidence, both parties were directed to file and serve written submissions on the issue of the Applicant’s allegation of migration fraud and the matter was stood over for further directions on 5 February 2009. The First Respondent filed and served further written submissions in accordance with those directions. No submissions were filed by or on behalf of the Applicant.
At the direction hearing on 5 February 2009, the Applicant was again given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any evidence by way of affidavit. The Applicant was also directed to file and serve written submissions. Again, no documents were filed by or on behalf of the Applicant in support of his application by way of an amended application, additional evidence, submissions or otherwise.
Before conduct can properly be occasioned on the Tribunal it must itself be able properly to be characterised as a fraud “vis-a-vis the applicant” (SZFDE v Minister for Immigration (2007) 232 CLR 189 at 206; SZLIX v Minister for Immigration and Citizenship (2008) 245 ALR 501 at [33]).
The Applicant has not provided relevant particulars of the alleged fraud. There is no evidence before this Court of the appointment by the Applicant of any migration agent in relation either to his protection visa application or his application for review. The person who telephoned the Tribunal on 3 October 2008 and 7 October 2008 and who identified herself as the Applicant’s migration agent took no step to confirm with the Tribunal her appointment in writing. Neither did the Applicant. The Applicant’s clear evidence was that he has never appointed any migration agent to assist him in either his protection visa application or his review application. He also agreed that he did not know whether a fraud had been committed upon him by a migration agent.
In the circumstances, on the level of satisfaction required by Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”), the Court is not satisfied that there was any conduct engaged in by a migration agent that resulted in a fraud being perpetrated on the Applicant. Nor is the Court satisfied, to the level of satisfaction required by Briginshaw, that a fraud was perpetrated upon the Tribunal by any person which frustrated the Tribunal’s opportunity to conduct a review of the Delegate’s decision.
In the circumstances, the Applicant’s allegation of “migration agent fraud” is not made out.
Further, the grounds of the Applicant’s application do not disclose any error capable of review by this Court.
A fair reading of the Tribunal’s decision makes clear that it understood the statutory and regulatory requirements for notification by the Minister to an applicant of a decision to refuse to grant a protection visa.
The Tribunal wrote to the Applicant on 2 October 2008, informing him of the difficulties he faced where his application for review was filed well in excess of the statutory 28 days provided by s.412 of the Act. Indeed, the Applicant lodged his review application more than 2 years after the mandatory time limit had expired. The Tribunal’s letter informed the Applicant that the consequence of the relevant statutory and regulatory provisions was that he was taken to have been notified of the Delegate’s decision on 12 May 2006, and his application for review had not been lodged with the Tribunal until 22 September 2008 and the time for lodging a review application had expired on 9 June 2006.
The Tribunal was satisfied that the notification of the Delegate’s decision met the requirements of ss.66(1) and 494B of the Act. That finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.
The Tribunal also considered the Applicant’s statement, dated 22 September 2008, alleging “migration agent fraud”. However, the Tribunal found that it did not have discretion to accept an application lodged outside the prescribed time frame and that no provision existed to extend time in which to lodge an application for review. That finding was also open to the Tribunal on the evidence and material before it and for the reasons it gave.
Conclusion
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 26 March 2009
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