SZNRN v Minister for Immigration

Case •

[2009] FMCA 670

•

15 July 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNRN v MINISTER FOR IMMIGRATION [2009] FMCA 670
MIGRATION – Review of decision of delegate – review of a primary decision – no jurisdiction – application dismissed.
Migration Act 1958 (Cth), ss.425, 472A, 476, 477
Applicant: SZNRN
Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
File Number: SYG 1454 of 2009
Judgment of: Nicholls FM
Hearing date: 15 July 2009
Date of Last Submission: 15 July 2009
Delivered at: Sydney
Delivered on: 15 July 2009

REPRESENTATION

Appearing for the Applicant: In person
Solicitors for the Applicant: Nil
Appearing for the Respondents: Ms E Baggett
Solicitors for the Respondents: DLA Phillips Fox

ORDERS

  1. The application made on 19 June 2009 is dismissed.

  2. The applicant pay the respondent’s costs set in the amount of $1,175.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1454 of 2009

SZNRN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

Application before the Court

  1. I have before me an application made on 19 June 2009 and said to be made under s.476 of the Migration Act (“the Act”), which seeks the following orders from this Court:

    “1.    Case should be refer back to Refugee Review Tribunal

    2. The Immigration did not ask for my evidence for my claim as a refugee.”

  2. The grounds of the application are said to be :

    “1. My application was not received by the Refugee Review Tribunal

    2. Under the Union Convection law, I should have my right to have my hearing in the Refugee Review Tribunal.”

  3. The application also puts forward the following grounds in the application said to be for an extension of time:

    “1.    The Refugee Review Tribunal did not receive my application

    2. I should have my right to apply for an Refugee Review Tribunal appeal.”

  4. The applicant appeared in person today before the Court. He was assisted by an interpreter in the Mandarin language. Apart from the application, the applicant has put forward an affidavit made on 18 June 2009. Annexed is a letter of notification of the refusal of a protection visa from the Minister’s Department. It is dated 20 March 2009. Attached to the letter is a leaflet relating to the Refugee Review Tribunal.

  5. The Minister seeks dismissal of the application today. The Minister has filed a Notice of Objection to Competency. By way of that notice, the Minister asserts that the application made on 19 June 2009 is seeking a review of a decision of a delegate of the first respondent, and that this is a primary decision dated 20 March 2009. It is submitted that, in these circumstances, with reference to s.476(2)(a) of the Act, this Court has no jurisdiction in relation to a “primary decision”. The Minister therefore seeks dismissal of the application on that basis.

  6. Before the Court, the applicant appeared with the assistance of an interpreter in the Mandarin language. Ms E Baggett appeared for the Minister. She pressed that the application be dismissed today.  I also took into evidence at the hearing the affidavit of Ms Baggett made on 10 July 2009, which annexes certain relevant material taken from the Minister’s Department’s records.

  7. I note here the identical nature of the name appearing on the application to the Court with a name appearing in the Department’s records. These records relevantly reveal that the applicant did apply for a protection visa, a matter which the applicant confirmed before the Court. This application was ultimately refused. The applicant was notified of this by a letter said to be sent on 20 March 2009.

  8. I note that that date corresponds with the date on the letter of notification of refusal attached to the applicant’s affidavit, and that the name on that letter, and the identifying details on the face of that letter, correspond with the name and details appearing in the copies of the Departmental records that have been put before the Court by way of the affidavit of Ms Baggett.

  9. The applicant, with respect, was unable to assist the Court in explaining the circumstances of his application to the Court. 

  10. The applicant, when pressed this morning, explained that a friend had taken him to see a lawyer after being refused the protection visa. But beyond that he had nothing further to say to the Court. When pressed as to what he expected from the Court, he said that he did not know what to say.

Consideration

  1. It is clear that the applicant is plainly reliant on others to assist him with what appears to be his attempt to remain in Australia permanently. The Court does understand the difficulties faced by an applicant in applying for a protection visa, being able to deal with the review process, and seeking out opportunities that are available if that application is unsuccessful.

  2. It may be that the application to the Court was made by way of some mistake, given that the applicant was able to confirm, after having had the situation explained to him, that he had not made any application to the Refugee Review Tribunal. Whatever the situation, however, the Court can only deal with what is presented to it. What is before the Court is an application that has a number of significant difficulties for the applicant, which form the basis for dismissing the application. They are as follows.

  3. First, to the extent that the applicant may be seeking review of the decision of the delegate of the Minister to refuse a protection visa, I note that one of the orders sought by the application today is that “the Immigration did not ask for my evidence for my claim as a refugee”, any such application cannot succeed before this Court because it is, as Ms Baggett submits, and as stated in the Minister’s Notice of Objection to Competency, that, with reference to s.476(2)(1) of the Act, that the Court lacks jurisdiction to entertain any such application. That the delegate’s decision is a primary decision, that is, a decision made by a delegate that is reviewable relevantly under Part 7 of the Act, can clearly be derived from the annexure to the applicant’s own affidavit that has been put before this Court.

  4. It is clear that the notification that the applicant received by way of the letter dated 20 March 2009 was a notification of the refusal of his application for a protection visa and, given what is set out in the letter, it is a decision which was reviewable under Part 7 of the Act by the Refugee Review Tribunal. To that extent, therefore, any application before this Court for review of that decision must be dismissed on the basis of incompetency, that is, on the basis that the Court lacks jurisdiction.

  5. As I said to the parties during the course of the hearing today, there are a number of possibilities as to what the remainder of the applicant’s application seeks to complain about. The other order sought by the applicant is that his case should be referred back to the Refugee Review Tribunal. The difficulty for the applicant is that there is no evidence before the Court that any application for review has been made to the Tribunal, or that any decision has been made by the Tribunal in relation to any application for review in which the applicant was unsuccessful.

Ground one

  1. To the extent that the applicant, in ground one of the application, states that the application was not reviewed by the Refugee Review Tribunal (“the Tribunal”), this may be interpreted as a complaint that the Tribunal either refused to consider any application for review, or that no application was made in the first place. But here again there is no evidence whatsoever before the Court of either of those two possibilities. Indeed the applicant confirmed today that no application has been made, although I note that that was not put to the Court in any evidentiary context.

Ground two

  1. Ground two makes a reference to “Union Convection Law”, a term which I find to be meaningless. But if it is some mistaken reference to the UN Convention Relating to the Status of Refugees, to which Australia is a signatory, then ground two could be understood as either that the Tribunal denied him a hearing, or, if the word “hearing” is to be understood in a broader, perhaps layman’s context, that the Tribunal did not review his application, or refused to do so.

  2. If what is meant is the former, that the Tribunal refused to grant a hearing to the applicant pursuant to s.425 of the Act, then there is no evidence before the Court that this is the case, and if it is that ground two makes reference to some refusal by the Tribunal to review any application made by the applicant, then again there is no evidence before the Court that that is the case.

Further grounds

  1. The applicant also puts forward grounds in relation to an application for an extension of time. If this is meant to be an application for an extension of time within which to apply to this Court for review of a Tribunal decision pursuant to s.477, then there is no evidence before the Court that there was any Tribunal decision in relation to which it can be said that the time limit set out in s.477 would begin to run. In fact quite the opposite.

  2. I am satisfied, from inferences that can be drawn from the evidence that has been put before the Court, that no Tribunal decision in relation to this applicant has been made in relation to his application for a protection visa which was made on 22 December 2008. 

  3. I refer here in particular to the annexures to the affidavit of Ms Baggett, which sets out the history of the applicant’s dealings with the Minister’s Department and note that there is no reference there to any request in relation to the applicant from the Tribunal for relevant documents, which would have been the case had the applicant made an application to the Tribunal as between 20 March 2009, the date of the letter of notification sent to the applicant, and 19 June 2009, the date of the application to this Court. No such relevant event as, for example, a request from the Tribunal for relevant documents, is recorded.

  4. I am further strengthened in being satisfied that there is no Tribunal decision in this matter, and that, in fact, the only migration decision that has been made in relation to the applicant is the decision made by the Minister’s delegate of 20 March 2009, with reference to the application itself that the applicant has put before this Court. When invited to nominate the decision in respect of which the applicant seeks review by this Court, the applicant has not nominated any decision by the Tribunal, but has nominated only the decision made by the Minister’s delegate.

  5. Therefore, if that is the decision that the applicant seeks review by this Court, I have already said that the Court has no jurisdiction to consider any such application. In the absence of any decision by the Tribunal, there is nothing for this Court to review, nor is there anything in relation to which this Court can consider any application for an extension of time.

  6. It may be that the applicant’s reference in his application to the extension of time is based on the Tribunal not receiving his application, and that the applicant’s reference to a right to apply for a Tribunal appeal, as he calls it, may be that the applicant is seeking some sort of declaration from the Court, or some order from the Court, calling on the Tribunal to review his application. But, simply put for the applicant’s benefit, in the absence of any evidence that any application has been made to the Tribunal, there is nothing for the Court to therefore consider if the extension of time that the applicant is seeking is an extension of time in which an application for review may be made to the Tribunal. Nor is it appropriate for this Court at this time to make any premature assessment as to the jurisdiction of the Tribunal to review any application that the applicant may have made. As I have already noted in any event there is no evidence of that.

Conclusion

  1. It is, as I said to the applicant earlier today, and to which I understood he agreed, that he needs to go back and get further, or even better, advice about how to pursue what he has described as his right to apply for an “appeal” by the Tribunal. In the meantime, however, in the absence of any application or decision by the Tribunal there is nothing for this Court to review.

  2. For these reasons the application made to this Court on 19 June 2009 is dismissed.

Costs

  1. I also have before me today an application by the Minister’s representative that the Court also make an order that the applicant pay some of the Minister’s costs that have been incurred in responding to this application that the applicant has put before the Court.

  2. The Minister seeks an amount of $1175 in that regard. 

  3. While I note what I said earlier about the difficulties faced by people such as the applicant before the Court today in being able to make their way through the protection visa application and review system, if I can refer to it in that way, and while I understand that the application to the Court may have been made prematurely as a result of some mistake or misunderstanding on the part of the applicant or those, his friend and others, who have assisted him in this matter, and while clearly the applicant should have pursued an application to the Tribunal even in circumstances where on its face it may have appeared that he may have been out of time, nonetheless, even in all those circumstances, it is appropriate, in my view, that an order for costs be made.

  4. In my view none of these are sufficient reasons for the order not to be made as would have been made in the normal course of events. On what he has said to the Court, the applicant has consulted a lawyer, a lawyer whom he said he saw in an office in Campsie. As to the amount sought, I note that it is consistent with what is set out in the relevant Schedule to the Rules of this Court.

  5. Beyond that, having regard to the work that has already been done by the Minister’s solicitors in responding to the application, the amount of $1,175 is, in my view, a reasonable amount in light of the work that has been done, which includes an affidavit and the work that would have been done in preparing the matters set out and attached to that affidavit. I will make the order.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  30 November 2009

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