SZNVE v Minister for Immigration

[2009] FMCA 904

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNVE & ORS v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 904

MIGRATION – Refugee Review Tribunal – practice and procedure – application to file application for judicial review out of time – whether explanation for delay in filing is reasonable – whether grounds disclose an arguable case.

Migration Act 1958 (Cth), ss.417, 477

First Applicant: SZNVE

Second Applicant: SZNVF

Third Applicant: SZNVG

Fourth Applicant: SZNVH

Fifth Applicant: SZNVI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1913 of 2009

Judgment of: Emmett FM

Hearing date: 7 September 2009

Date of Last Submission: 7 September 2009

Delivered at: Sydney

Delivered on: 7 September 2009

REPRESENTATION

Counsel for the Applicant: Mr A. Kumar

Solicitors for the Applicant: Sarom Solicitors

Solicitors for the Respondent: Ms K. Whittemore, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1913 of 2009

SZNVE

First Applicant

SZNVF

Second Applicant

SZNVG

Third Applicant

SZNVH

Fourth Applicant

SZNVI

Fifth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The applicants seek leave to file and rely upon an application for judicial review filed more than 35 days after notification of the Refugee Review Tribunal’s decision, handed down on 29 July 2008, was received by them. Pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) the applicants were deemed to have received the Tribunal’s decision on 15 March 2009, whereas the first-named applicant (“the Applicant”) says that the applicants did not see a copy until July 2008. 

2. In support of their application, the applicants read an affidavit, sworn by the Applicant on 7 September 2009 and filed in Court, in respect of which the Applicant was cross-examined.  There was no objection to either the filing of the affidavit or to any part of the affidavit. 

3. The evidence before the Court shows that the Applicant had the services of a migration advisor, Adrian Joel of Adrian Joel and Co Solicitors and Migration Agents and Advisors, to assist him before the Tribunal. 

4. However, the Applicant states that he did not receive a copy of the Tribunal decision when it was handed down on 29 July 2008 and that a copy of the decision was sent to Adrian Joel and Co.  The Applicant stated that he spoke to Adrian Joel about a year ago and was told by Adrian Joel that Adrian Joel had filed an application for review in the Court and that:

   “It has also gone to the Minister for Immigration for the Minister to look at it.  I will get back to you later and advise you of the outcome.”

5. The Applicant’s affidavit states that the Applicant presumed that Mr Joel had continued to act for him, although he has had no contact from Mr Joel since that time.  The Applicant gave sworn evidence this morning to the Court that, whilst he made no attempt to contact Mr Joel in 2008 following that conversation, he made three attempts in 2009 by telephone where he left messages and was not contacted. 

6. The Applicant’s affidavit also states that in June 2009 he received a letter from the Minister for Immigration and Citizenship (“the Minister”) stating that the Minister would not intervene pursuant to s.417 of the Act.

7. In cross-examination a letter from the Department of Immigration and Citizenship (“the Department”) was put to the Applicant by the solicitor for the First Respondent, Ms Whittemore, dated 29 January 2009, which was a response from the Department to the applicants in respect of an application made to the Minister pursuant to s.417 of the Act. The Applicant agreed that that was the letter that he had received from the Minister and to which he was referring in his affidavit, his having received it in June 2009.

8. In re-examination the applicants’ counsel, Mr Kumar, tendered a letter dated 24 June 2009 addressed to the applicants from the Department also informing the applicants that the Minister did not propose to exercise his discretion under s.417 of the Act to interfere or to intervene in the decision of the Tribunal. The Applicant confirmed that it was on 24 June 2009 that the Applicant became aware that his s.417 application had been unsuccessful.

9. In re-examination, when the applicant was shown the letter dated 24 June 2009 by his counsel, the Applicant changed his evidence to say that in fact it was the 24 June 2009 letter to which he was referring in his affidavit. 

10. The solicitor for the first respondent, Ms Whittemore, submitted to the Court that the Court ought not to accept the evidence of the Applicant because the Applicant changed his evidence in relation to having seen or been made aware of the outcome of the applicants’ s.417 application. However, the Applicant was not challenged in relation to that evidence.

11. In the circumstances, I accept the Applicant’s evidence that it was not until June 2009 that he became aware of the fact that his application to the Minister to exercise his discretion pursuant to s.417 of the Act had been unsuccessful. There is no evidence before me, nor was there any cross-examination of the Applicant, to explain why there are two letters of differing dates.

12. While I accept there is some force in Ms Whittemore’s submission that the Applicant appears to have sat on his hands and done nothing from at least July 2008 until some time in 2009 I do have regard to the unchallenged evidence of the Applicant that he was told by Adrian Joel in July 2008 that an application for review to the Court had been filed. 

13. In all the circumstances, I accept as reasonable the Applicant’s explanation. 

14. In granting leave, I have also had regard to the grounds of the application.  They raise two issues in relation to the Tribunal’s understanding and consideration of the evidence before it.  I note there has been a transcript filed by the applicants in support of their application.  In my view, the grounds disclose an arguable case. 

15. Accordingly, time should be extended to the Applicant to 11 August 2009 to file his application to this Court seeking judicial review of the Tribunal’s decision. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Maconachie

Date:  18 September 2009