SZNLK v Minister for Immigration
[2009] FMCA 823
•3 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNLK v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 823 |
| MIGRATION – RRT decision – Albanian national claiming political persecution – did not attend Tribunal hearing – previous travel to Australia without claiming protection – Tribunal disbelieved claims – no reliance on information not given to Tribunal by applicant when forwarding delegate’s decision – additional travel information was not covered by s.424A(1) – three years’ delay in applying for judicial review – whether amnesty arising from 2009 amendments – application dismissed. |
| Migration Act 1958 (Cth), ss.424(2), 424A(1), 424A(3)(b), 426A(1), 477 |
| Minister for Immigration & Citizenship v SZIQB [2008] FCAFC 20 Minister for Immigration & Citizenship v SZKTI [2009] HCA 30 Minister for Immigration & Citizenship v SZLFX [2009] HCA 31 Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109 Minister for Immigration & Citizenship v You [2008] FCA 241 Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 Rinka v Minister for Immigration & Citizenship [2009] FCA 465 SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 SZGIY v Minister for Immigration & Citizenship [2008] FCAFC 68 SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1 SZLPO v Minister for Immigration & Citizenship [2009] FCAFC 51 SZLUC v Minister for Immigration & Anor [2009] FMCA 378 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 |
| Applicant: | SZNLK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 859 of 2009 |
| Judgment of: | Smith FM |
| Hearing date: | 24 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 3 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Dobbie and Devine Immigration Lawyers Pty Ltd |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 859 of 2009
| SZNLK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant last arrived in Australia in November 2004, using an Italian passport in the name of DR. On 12 January 2005, he lodged a protection visa application in the name of EG. This claimed that he was an Albanian national. He claimed that he had been imprisoned and had escaped two times, as a result of his human rights activities and “because I tried to speak with the people against the government”. He referred to being “brutally beaten and mistreated” while in police detention in 1998. He claimed to have escaped from prison, and to have hidden in a village until 2004. He said: “I had to escape by road on 12 November 2004 by train to Holland”, but could not stay there “for fear I could be caught and send back”.
The applicant was interviewed by a delegate on 3 February 2005. He presented some documents to establish an identity as EG. A full record of the interview, and of the documents which were before the delegate, is not contained in the material now before the Court, nor is it found in the delegate’s statement of reasons. However, the statement of reasons contains the following information:
The applicant claims he arrived in Australia on a false Italian passport. He has not provided the Italian passport to DIMIA for the document examiner to be able to make a finding that it is a counterfeit or a fraudulently altered passport. The applicant spoke Italian at the interview but stated that he lived in Albania until 12 November 2004 and learnt Italian there. I find that this statement is far fetched. The applicant had previously arrived in Australia on 7 December 2003 on an Italian passport and had been refused entry to Australia. He stated in December 2003 that he had resided in Italy since 1992. However, at his interview on 3 February 2005 the applicant stated he had made a false statement to the DIMIA authorities in December 2003 and had not lived in Italy.
…
The applicant arrived in Australia on an Italian passport, [number], issued on 12 July 2004 and valid until 11 July 2014. He entered Australia on a 976, visitor visa on 18 November 2004, valid for a stay until 18 February 2005. At the time of entry the applicant stated on his passenger card that he was Italian and worked in a pizza shop and said he would be living in Melbourne. On the 13 January 2005 the applicant lodged a protection visa application in Melbourne.
…
At interview on 3 February 2005 information was put to the applicant that he had previously been refused entry to Australia in Brisbane in December 2003. He agreed that he had been. It was put to him that he had been speaking Italian at the interview in December 2003 and claiming that he lived in Italy and described his life in Italy. He said that he wanted to enter Australia and he did not want the airport officers to have any doubts that he was Italian. It was put to the applicant that when he finally admitted that he was not an Italian citizen, but his name was EG, he said that he had lived in Italy since 1992. He stated that he made a false statement to the Australian airport authorities about living in Italy. He stated that he has not lived in Italy but had embellished the truth.
The delegate refused the visa application on 1 March 2005. She accepted that the applicant was a citizen of Albania, but did not accept that he “came to the attention of the Albanian authorities for political activities”.
The applicant employed a solicitor in Melbourne to lodge an application for review by the Tribunal. The application attached a copy of the delegate’s statement of reasons, but no additional information or documents were ever given to the Tribunal by them, or by the applicant. The solicitor initially acknowledged an invitation for the applicant to attend a hearing on 14 October 2005, and nominated a witness in Albania whose evidence was requested to be taken by telephone.
By letter dated 5 October 2005, the Tribunal noted this request, and said:
Due to the time difference and the potential difficulties relating to overseas telephone connections, the Member has requested that your nominated witness provide a written statement to the Tribunal.
If you wish to do this, and given the availability of facsimile and email, the Member advises that any written submissions from this witness must be provided to the Tribunal in English within 14 days of the date of this letter.
The applicant’s solicitor responded by letter dated 11 October 2005:
I refer to the above matter. I am the migration agent and authorised recipient listed on file for [the applicant]. I have encountered consistent problems obtaining clear instructions from [the applicant] and find that his failure to cooperate has prevented me from assisting him in any meaningful way.
[The applicant] has a hearing listed for 14 October 2005 but for the above reasons I find that I am no longer in a position to act for him. This has been explained to [the applicant] as clearly as possible in the circumstances and he has been provided with a form authorising my cancellation as his authorised representative. [The applicant] instructs that he will sign this form and return it to me in the next few days. [The applicant] has indicated that he is happy with this arrangement and will attend the Tribunal hearing on his own.
As such, I advise that I no longer act for [the applicant] and request I be removed as his listed authorised recipient.
The applicant did not attend the appointed hearing, nor contact the Tribunal. Nor did he provide any change of address details or nominate an alternative authorised recipient for correspondence.
The Tribunal proceeded on 10 November 2005 to make a decision pursuant to its power under s.426A(1) of the Migration Act 1958 (Cth), which it posted to the applicant’s former solicitor.
In its statement of reasons, the Tribunal identified the vague claims made by the applicant in his original visa application, and additional information about them given to the delegate at the interview. This included that he had been imprisoned, and escaped, for a second time in 2002, and that he had lived in one town in Albania “from 1998 until 2004 and over this period remained politically active”.
The Tribunal gave nine pages of ‘Findings and Reasons’ for affirming the delegate’s decision. This commenced with a discussion of the applicant’s identity:
The identity of the Applicant is not easy to establish, and even his previous country of residence since 1996 is not clear. The Tribunal accepts that the Applicant entered Australia on a false or altered Italian passport issued in the name of DR (DOB 1 November 1977) on 14 November 2004 but then applied for a protection visa on 13 January 2005 in the name of EG (DOB 25 September 1978). In this application he claimed that a friend of his had bought the Italian passport for him in Holland. That said, the Tribunal also accepts that he had previously tried to enter Australia via Brisbane airport on 7 December 2003 using another false or altered Italian passport issued in the name of FL (DOB 9 May 1979) but claimed at an interview with Immigration staff at the airport that his real name was EG (DOB 25 September 1978). In that interview, conducted in Italian, the Applicant also claimed that he moved to Italy in 1996 and he had lived at [address] in Florence for 9 years. The Applicant was refused clearance and became an unlawful non‑citizen, and was subsequently removed from Australia. Copies of both these passports with his photograph on them are on file. The Applicant has also provided a number of other documents to support his various identities including what appears to be an Albanian birth certificate issued on 6 January 2005 (when the Applicant was in Australia) in the name of EG (DOB 25 Shtator 1978); what appears to be some sort of Albanian transportation identification card (“DA”) issued in this name and valid until 11 November 2002; and what appears to be an Italian/EU ID card No [number] issued on 11 July 2001 and valid until 8 July 2011 in the name of FL (DOB 9 May 1979). There is also on file a copy of a Victorian “Probationary Licence” in the name of DK (DOB 19 June 1980) No. [number] giving the same address used by the Applicant in his application for review, but it is not clear whether this is the Applicant’s drivers licence (in yet another name) or that of a friend who resides at the same address. But be that as it may, and from the other documents on file and the claims made by the Applicant, the Tribunal is satisfied that the Applicant has purported to be different people at different times (including to the Australian authorities) and has lied about not only his actual identity but also where he has lived. It follows that the Tribunal is satisfied that the Applicant is not a credible witness. However, based on what is claimed to be his Albanian birth certificate, the Tribunal is willing to give the Applicant the extreme benefit of the doubt and accept that he is for the purposes of Article 1 of the Convention a national of Albania and his real name is EG (DOB 25 September 1978).
The Tribunal then correctly said that “the Applicant’s refugee claims are very general and vague, and often lack key details or an adequate description of the events or circumstances surrounding his claims”. It pointed out various obvious deficiencies, and noted that the applicant had not provided information at a hearing. It said:
Accordingly, given all the above, the Tribunal has not been able to satisfy itself that the Applicant has had any political involvement or profile in Albania or elsewhere of any sort whatsoever, and does not accept these claims.
Given all the above, it follows that the Tribunal is satisfied that the Applicant does not have a well‑founded fear of serious harm amounting to persecution for a Convention reason on this basis (his political opinion), and does not accept the claims that flow from this such as he has a 100% fear he will be killed by the Albanian authorities and secret agents “because of my political activities, and because I tried to speak with the people against the government”.
Prima facie, this conclusion would appear to have been fully explained by the preceding reasoning, i.e. that the absence of the applicant from the hearing had left the Tribunal unable to be satisfied that he was a refugee as claimed, even assuming that he was EG. However, the Tribunal also provided additional reasons for not being satisfied that the applicant had been detained and abused by the police in 1998 and 2002.
One of its reasons referred to the applicant’s travel during 2003:
Of greater importance, however, and while these events were claimed to have occurred sometime in 1998 and 2002, the Tribunal accepts the Applicant’s claim that he travelled to Australia via Barcelona, Amsterdam, and Tokyo in December 2003, but does not claim to have applied for asylum or to have sought refugee status in any of these democratic countries -- or even when he arrived in Brisbane airport -- because of his having been twice detained and brutally treated. The Tribunal accepts that the countries mentioned by the Applicant are signatories of the 1951 Convention and its 1967 Protocol (see UNHCR’s web site “States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol” at accessed on 17 October 2005), and is satisfied that if the Applicant had on two occasions before he left Albania been detained, tortured and badly mistreated in prison as he claims to the point that he was in a coma and he had an arm broken, then he would have sought asylum or refugee status in one of these countries as soon as he arrived there.
The Tribunal’s finding that the applicant had not made refugee claims “in Holland or the other countries he visited in Europe” also led it not to accept that the applicant had a fear of persecution in Holland in 2004. It also found against the applicant’s claims, because “when he was denied entry into Australia in December 2003, the Applicant returned to Albania” and “he would not have been willing to return to Albania in late 2003 or early 2004” if he had suffered the persecution he claimed.
Notwithstanding its complete rejection of the applicant’s claims to have suffered persecution for political opinions and activities in Albania, the Tribunal perceived a residual refugee claim on a “more generalised basis” that the applicant feared persecution because of “what he believes are an absence of free speech and adequate human rights (including political rights) standards in Albania”, and a fear of persecution “on the basis of his more general political opinion (actual or imputed) and the absence of adequate state protection”. However, the Tribunal cited country information about Albania, and it said that “the Tribunal does not accept that there is a real chance that the Applicant would be subjected to serious harm amounting to persecution for a Convention reason on this basis, and does not accept these claims”.
The applicant now applies to the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. I have power to make these orders only if I am satisfied that the decision is affected by jurisdictional error. I do not have power to decide whether the applicant is a refugee, nor whether he should be given any permission to stay in Australia.
The applicant was represented by counsel at the hearing, who relied upon only the following of the grounds set out in an amended application:
Ground 1.The Tribunal failed to comply with s424A of the Act
Particulars
The Tribunal failed to provide the requisite notice in relation to the following information that would be part of the reason for affirming the delegate’s decision:
(i)The Tribunal affirmed the decision under review, relying in part on information not given to it by the Applicant, being information in an interview between the Applicant and a delegate of the Minister on 3 February 2005 or otherwise sourced by the Tribunal:
(a) The Applicant’s admission at interview to seeking to enter Australia on 7 December 2003, on an Italian passport in the name of FL.
(b) The Applicant’s admission at interview in 2003 that he obtained an Italian passport in the name of FL.
(c) The Applicant’s admission at interview in 2003 to living in Italy for nine years before coming to Australia.
(d) The Applicant’s admission at interview in 2003 that he moved to Italy in 1996.
(e) Information that the Applicant returned to Albania in late 2003 or early 2004, after being refused entry to Australia.
(f) The Italian residential address that the Applicant gave to DIAC at his 2003 interview, being [the address], Florence.
(ii)The Tribunal relied on information provided by the Applicant on his Protection visa application form or otherwise before the delegate of the First Respondent or otherwise sourced by the Tribunal:
(a) The Tribunal relied on information (passports, probationary licence and the Applicant’s Protection visa application form, statement and oral evidence and other sources) showing that the Applicant had also used the following names: FL, DK and DR.
(b) The Tribunal relied on information not given to it by the Applicant showing that the Applicant had travelled to Australia via Barcelona, Amsterdam and Tokyo, and had not sought asylum in Spain, The Netherlands or Japan.
Ground 2. The Tribunal misinterpreted the applicable law and misapplied it to the facts.
Particulars
(i)The Tribunal misinterpreted the law and misapplied the law in determining whether the Applicant had access to effective state protection where:
(a) The Applicant feared persecution from the state and its agents.
(b) The country information relied on by the Tribunal showed that the judiciary and police are neither impartial nor reasonably effective; rather, it showed that they are corrupt and ineffective.
Ground 4. The Tribunal failed to comply with s424B of the Act and r4.35 of the Migration Regulations 1994.
Particulars
(i)The Tribunal requested the Applicant to provide information, being a written statement from the Applicant’s named witness, DG, within 14 days from the date of its letter dated 5 October 2005, when the time prescribed by r4.35 of the Migration Regulations 1994 was 28 days; and the Tribunal proceeded to make a decision before that 28 day period had ended.
In relation to Ground 1, the Minister conceded that no letter inviting written comments on any information was ever sent to the applicant under s.424A(1) of the Migration Act, but disputes that any of the particularised information was “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” within that subsection. Alternatively, he submitted that any such information was found in the delegate’s statement of reasons presented to the Tribunal by the applicant’s solicitor, and that it was therefore information “that the applicant gave for the purpose of the application” within the exclusion in s.424A(3)(b).
The Minister’s counsel also adopted a suggestion which I made in the course of the hearing, that the Tribunal’s decision was independently supported by that part of its reasoning in which it said that it could not be satisfied as to the applicant’s refugee status due to the vagueness of his written claims and his absence from the hearing. If the Tribunal’s statement of reasons is read in this manner, then any procedural error affecting its additional reasons for affirming the delegate’s decision would be immaterial, and would not give rise to the grant of relief (cf. SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 at [28], [55]‑[59], [91]). I was attracted to this reading of the statement of reasons, but accept that it would require the Tribunal’s finding in its opening paragraph that “the Applicant is not a credible witness” to be confined to the topic of that paragraph, i.e. the applicant’s identity, about which he was then given the benefit of doubts. It would also require a confining reading to be given to some later obscure conjunctive statements used by the Tribunal which might appear to give a cumulative effect to all of its reasons. Ultimately, I have decided that I do not need to consider whether relief should be refused on grounds of immateriality, since I am not satisfied that any breach of s.424A(1) is evidenced in any part of the Tribunal’s reasoning (cf. Minister for Immigration & Citizenship v SZLFX [2009] HCA 31 at [26]).
The information particularised in Ground 1 falls into three categories. The first category concerns the information identified in particulars (i)(a), (b), (c), (d) and (f) and (ii)(a). This information was referred to in the Tribunal’s opening paragraph, extracted above, where it addressed the applicant’s true identity. There is some uncertainty as to the source of some of the details about the applicant’s 2003 passport and travels, and his statements and documents presented at the Brisbane airport interview. It is conceded by the Minister that the name in his first Italian passport, his then claimed place of residence in Italy, and the details on his Italian ID card, were not found in the delegate’s decision. Also, the delegate’s decision refers to the applicant having claimed in 2003 to have resided in Italy since 1992, not 1996 nor 1994.
However, it was submitted by the Minister that the additional details referred to by the Tribunal in its reasons were unimportant, and that the gist of the important information about the applicant’s 2003 arrival and interview in Australia was contained in the delegate’s statement of reasons. This was that he had previously tried to enter Australia in 2003 using a false Italian passport, and had claimed to have been a long‑term resident of Italy. It was this information which supported the Tribunal’s finding that “the Applicant has purported to be different people at different times (including to the Australian authorities) and has lied about not only his actual identity but also where he has lived”. The information which led to the Tribunal’s adverse credibility finding was, therefore, to be found in the delegate’s statement of reasons.
I accept this submission. I also accept on the binding authority of Minister for Immigration & Citizenship v You [2008] FCA 241 at [16], that the presentation of this information in the delegate’s statement of reasons, amounted to the ‘giving’ to the Tribunal of that information for the purposes of s.424A(3)(b). I therefore reject the particulars of breach of s.424A(1) falling into the first category.
The second category of information relied upon in Ground 1 is particular (ii)(b), referring to the Tribunal’s findings that the applicant “travelled to Australia via Barcelona, Amsterdam, and Tokyo in December 2003, but does not claim to have applied for asylum or to have sought refugee status in any of these democratic countries”. As I have explained above, the Tribunal made these findings on page 10 of its reasons, in the course of explaining a conclusion that the applicant had not been persecuted in 1998 and 2002 and did not have a fear of persecution in 2004.
It is conceded by the Minister that this travel information does not appear from the delegate’s statement of reasons. However, he submits that the travel information itself was neutral in its implications for the applicant’s refugee claims, and therefore does not satisfy a now established test of information falling within s.424A(1). At least two Full Court judgments have applied a test of whether the sources of the information “contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations”, based on SZBYR (supra) at [17]. This test has recently been confirmed by the High Court (see Minister for Immigration & Citizenship v SZLFX at [22]). The Minister submits that the 2003 travel information was indistinguishable from the passport information characterised as ‘neutral’ in SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1 at [26], and the dates of arrival and visa application which were treated similarly in SZGIY v Minister for Immigration & Citizenship [2008] FCAFC 68 at [23]‑[25]. I accept this submission, and am bound to follow these recent judgments.
I also accept that the Tribunal’s finding that the applicant had not applied for refugee status during his travels through Spain, Holland and Japan, was not itself ‘information’, but was an inference from other information not subject to obligations under s.424A(1). That it was not based upon any direct evidence is clear from the Tribunal’s statement that “[the applicant] does not claim to have applied for asylum”. Its reasoning appears to be that it could draw an inference that he made no previous refugee claims from the admitted circumstances of his travel to and arrival at Brisbane in 2003. In my opinion, the adverse conclusions drawn from the applicant’s travel information were all ‘thought processes’ about evidence, and do not themselves constitute ‘information’ for the purposes of s.424A(1) (see SZBYR at [18]).
I therefore do not accept that this particular of Ground 1 has established a jurisdictional error under s.424A(1).
The third category of information under Ground 1 comprises particular (i)(e), being the information that the applicant returned to Albania after being excluded from Australia in December 2003. As I have explained above, at page 12 of its reasons the Tribunal drew from this fact a further reason for concluding that the applicant had not been detained and tortured by the police in Albania in 1998 and 2002.
However, in my opinion, the fact that the applicant had returned to Albania before leaving there again in 2004 was clearly part of the history which the applicant presented to the Department of Immigration and to the delegate at interview, and was then recorded in the reasons of the delegate which the applicant gave to the Tribunal. Although the applicant’s visa statement had not referred to his earlier attempt to enter Australia, he had conceded this in his interview with the delegate, while maintaining his claimed history of leaving Albania in 2004 under a fear of persecution. The fact that he had returned to Albania was, therefore, either information ‘given’ by the applicant to the Tribunal when the delegate’s statement of reasons was forwarded to it, or was its appraisal of that information. On either basis, s.424A(1) was not engaged.
For all the above reasons, I am therefore not satisfied that any jurisdictional error is made out under Ground 1.
Ground 2 is somewhat obscure in its pleading in the amended application, but was presented in the applicant’s submissions as a challenge to the Tribunal’s conclusion at the end of its reasons, that there was not a real chance that the applicant would be persecuted merely for holding political opinions that there is an absence of free speech and adequate human rights standards in Albania. As I understood his submissions, he argued that it was not open to the Tribunal to conclude that “effective state protection is available in Albania and human rights standards are maintained”, based upon the country information which the Tribunal cited in its statement of reasons (cf. SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [19] and [28], VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77]).
In the applicant’s submission, reference was made to the considerations of “a reasonably effective and impartial police force and justice system” and “the level of State protection required by international standards” which were referred to in the majority judgment in Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at [26] and [28]. However, it was not submitted that any erroneous application of these considerations was evidenced in the Tribunal’s reasoning, except by the absence of sufficient evidence to support its conclusion that effective State protection would be available.
I do not accept these arguments. The material expressly cited by the Tribunal contained or allowed opinions that “the Government generally respected the human rights of its citizens”, and “there are appropriate independent watchdog provisions to ensure that the authorities comply with enshrined human rights standards”. It might also have contained some reservations and qualifications on these opinions, but it was a matter for the Tribunal to weigh up this material in relation to the particular matter before it. I am not persuaded that it was not open to the Tribunal to conclude from the general country information that, absent the applicant’s claimed history of persecution, he did not face a real chance of persecution for his general political opinions. I therefore consider that Ground 2 is not established.
Ground 4 contends a failure to follow formalities attaching to s.424(2), in relation to the Tribunal’s request for a witness statement from the proposed witness. However, it was conceded that this request could not be characterised as an invitation for “additional” information within the terms of that section, upon the opinion of the Full Court which is binding upon me (see SZLPO v Minister for Immigration & Citizenship [2009] FCAFC 51 at [99]). The High Court has now rejected the Federal Court’s jurisprudence suggesting jurisdictional error where a Tribunal makes inquiries without adopting s.424(2) formalities, so this ground must clearly fail (see Minister for Immigration & Citizenship v SZKTI [2009] HCA 30 at [48], and Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109).
For the above reasons, I am not persuaded that any of the argued jurisdictional errors occurred. I must therefore dismiss the application.
This conclusion makes it unnecessary for me to reach firm conclusions upon issues arising from the applicant’s delay in seeking judicial review. I note that the Tribunal handed down its decision on 10 November 2005, but the applicant did not make an application for judicial review until 14 April 2009.
The applicant was able to avail himself of a transitional ‘window of opportunity’ to invoke this Court’s jurisdiction, unhampered by the time limit under s.477 of the Migration Act, which was opened up by recent amendments (see SZLUC v Minister for Immigration & Anor [2009] FMCA 378 at [10], and Rinka v Minister for Immigration & Citizenship [2009] FCA 465 at [5]‑[6]). However, the Court retains a discretion to refuse relief based upon conduct of the applicant which appears inconsistent with his belated invocation of that jurisdiction.
The applicant relied upon an affidavit which denied knowledge of the Tribunal’s decision until after he was taken into immigration detention in April 2008. But he did not explain why he did not attend the Tribunal hearing nor subsequently inquire of his former solicitor, or the Tribunal, or the Department of Immigration, as to the outcome of his appeal to the Tribunal. The applicant was unavailable for cross‑examination, but even assuming the truth of his affidavit, it suggests to me that he deliberately abandoned his appeal to the Tribunal and his subsequent rights to judicial review, in favour of becoming an unlawful resident of Australia (cf. Minister for Immigration & Citizenship v SZIQB [2008] FCAFC 20 at [30]). Whether this should be overlooked by reason of what might appear to be an amnesty offered by the Parliament in its transitional amendments to s.477, is a matter which I do not need to decide.
It is agreed that costs according to the usual scale should follow the outcome of the case.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 3 September 2009
14
0