SZOBJ v Minister for Immigration

[2010] FMCA 444

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOBJ v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 444

MIGRATION – RRT decision – 1998 decision of Tribunal vitiated by procedural error – Tribunal declined jurisdiction over second application in 2009 – application for judicial review – inadequate explanations for delays – discretions to refuse extension of time and to decline relief – application dismissed.

Migration Act 1958 (Cth), ss.412(1)(b), 425, 426, 476, 477, 477(2), 477(2)(a)
Migration Legislation Amendment Act (No. 1) 2009 (Cth)
Migration Regulations 1994 (Cth), regs.4.31, 5.03

Joshi & Anor v Minister for Immigration & Multicultural Affairs (2001) 116 FCR 87
Minister for Immigration & Citizenship v SZIQB [2008] FCAFC 20
Minister for Immigration & Citizenship v SZIZO (2009) 238 CLR 627
Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470
SZBWJ v Minister for Immigration & Citizenship (2008) 171 FCR 299
SZHFW v Minister for Immigration (2006) 197 FLR 321, [2006] FMCA 86
SZNZI v Minister for Immigration & Anor [2010] FMCA 57
SZNZU v Minister for Immigration & Anor [2010] FMCA 197
Xie v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 543

Applicant: SZOBJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3045 of 2009

Judgment of: Smith FM

Hearing date: 9 June 2010

Delivered at: Sydney

Delivered on: 9 June 2010

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr A Markus

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $5,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3045 of 2009

SZOBJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 15 December 2009, in which the applicant seeks orders which will require the Tribunal again to review the merits of a decision made in 1998 which refused him a protection visa.  For the reasons which follow, I have decided that any available relief should be refused. 

2. The applicant is a national of the People’s Republic of China who made trips to Australia in 1996 and 1997, and last arrived in January 1998 on a temporary business visa.  On 14 April 1998, he lodged an application for a protection visa assisted by a migration agent, Peter Tao Zhu.  He gave a residential address at Campsie.  His claims for refugee status were briefly set out in a typed statement without any corroboration.  In short, he claimed to have supported democracy movements in China and to have suffered in his employment, but otherwise not to have been persecuted. 

3. A delegate refused the application on 25 April 1998 because he was not satisfied that there was a real chance that the applicant would suffer persecution for a Convention reason if he returned to China.  The letter informing the applicant of that decision was posted by registered post to the applicant at his Campsie address, and a copy was also sent to his agent.  It is undoubted that he received notice of that decision, whether by post or from his agent, in time to exercise a right of appeal to the Tribunal, since he signed an application for review on 21 May 1998, and this was lodged by his agent on 25 May 1998. 

4. The Department’s notification letter told the applicant that “you must lodge your application with the RRT within 35 days of the date of this letter”.  That statement may or may not have correctly reflected the legal provisions in relation to appeals to the Tribunal as they stood in 1998, but in my opinion any defect would not have given rise to the invalidity of the ensuing Tribunal proceedings, since the applicant in fact exercised his right of appeal within the time provided at law (compare Minister for Immigration & Citizenship v SZIZO (2009) 238 CLR 627 at [34]‑[36]). In my opinion, the application for review lodged by the applicant on 25 May 1998 validly invoked the jurisdiction of the Tribunal to review the delegate’s decision.

5. Of similar irrelevance, is the fact that the applicable terms of regulation 5.03, which purported to deem a date of receipt, was subsequently held invalid in the Federal Court (see SZHFW v Minister for Immigration (2006) 197 FLR 321, [2006] FMCA 86 at [38]‑[42], also Joshi & Anor v Minister for Immigration & Multicultural Affairs (2001) 116 FCR 87 at [28]‑[50]). The invalidity of that regulation had no material effect on the applicant’s rights, since he actually received the delegate’s decision, and exercised his right of application to the Tribunal within the prescribed period.

6. According to the documents now available to the Court, the Tribunal sent three letters by post to the applicant at his nominated Campsie address.  These were: (i) a letter on 27 May 1998, acknowledging receipt of the review application which was not sent by registered post; (ii) a letter on 10 November 1998 sent by registered post, inviting him to return a “Response to Hearing Offer” form which would indicate whether he wanted to come to the Tribunal to give oral evidence; and (iii) a letter sent by registered post on or about 4 January 1999, enclosing the decision of the Tribunal dated 30 December 1998.  The file suggests that copies of all three of these letters were also sent to the applicant’s nominated agent in the proceedings before the Tribunal, Mr Zhu. 

7. According to the Tribunal, no responses were received from either the applicant or his agent to any of its letters, and there was no indication given to the Tribunal that the applicant wished to take the opportunity to attend an oral hearing or was at all interested in pursuing his appeal. 

8. The terms of the Tribunal’s second letter, offering him an opportunity to attend a hearing, were subsequently held by Cooper J in Xie v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 543 not to reflect accurately the obligations of the Tribunal under ss.425 and 426 of the Migration Act 1958 (Cth) as they stood at the time. This was because the letter did not appoint a specified hearing date at which the applicant would be given the opportunity to give oral evidence if he requested that opportunity. The correctness of this judgment does not appear to have been doubted, and appears to be endorsed by the Full Court in Minister for Immigration & Citizenship v SZIQB [2008] FCAFC 20 at [16]. The procedural provisions of the Migration Act were substantially altered by amendments which came into effect on 1 June 1999, and are now somewhat different. No doubt, the Tribunal’s standard letters also were altered substantially in the light of the amending legislation. Cooper J’s judgment in Xie was given after the amendments. 

9. It appears to me that this defect in the Tribunal’s hearing invitation letter may have given rise to a defect in procedure which, if the applicant had applied for judicial review in accordance with time limits prevailing over the subsequent years, might have been held to have constituted a jurisdictional error, vitiating the subsequent decision of the Tribunal dated 30 December 1998. 

10. The substantive reasoning of the Tribunal was that it was unable to be satisfied as to the applicant’s refugee status, due to his failure to respond to the invitation to attend a hearing and to provide any evidence.  The Tribunal was left only with his visa application statement, and understandably said that it was not satisfied that there was a real chance that the applicant would suffer persecution in the foreseeable future as a result of his political activities.  It took into account country information which had been put to the applicant in the letter sent to him and his agent. 

11. The documents before the Court show that the letter sent to the applicant enclosing the Tribunal’s final decision was returned to the Tribunal marked ‘unclaimed’.  There is no evidence before me that the copy sent to the applicant’s agent was not received by the agent.  There is no evidence before me as to that agent’s current registration or involvement in the migration advising industry subsequent to 1998. 

12. The applicant now claims to have taken no steps to discover what was happening in relation to his Refugee Review Tribunal application, other than enquiring with Mr Zhu from time to time, until he lost contact with Mr Zhu two or three years after his application for review, that is in 2000 or 2001.  Prior to losing contact, he claims not to have received any of the Tribunal’s correspondence from the Tribunal, nor any information about the Tribunal’s letters from Mr Zhu.  He claims that Mr Zhu told him only that he should wait to be told the outcome of his appeal. 

13. He claims to have told Mr Zhu when he moved from his Campsie address at a date at the end of 1998, and to have assumed that Mr Zhu would inform the Department of Immigration of his new address, notwithstanding that he was aware of his own obligations to keep the Department informed of his current residential address. 

14. His evidence to the Court is that after he lost contact with Mr Zhu, he again moved houses several times, but at no time informed the Department of his new addresses.  He claimed that he thought that he did not need to do this, because it was being attended to by Mr Zhu.  However, he could not explain how Mr Zhu would have known of his new addresses.  He claims not to have had any concerns about the lawfulness of his continuing residence in Australia over all the ensuing years. 

15. The applicant claims that this state of mind only changed in 2009, when on the advice of people at his church he employed another migration agent, Mr Chan.  In or about July 2009, he asked Mr Chan to make a freedom of information request in relation to the Department’s file.  This revealed that the Tribunal had refused his application in January 1999. 

16. He then lodged a second application to the Refugee Review Tribunal on 5 November 2009.  Although it is not completed in a clear manner, the Tribunal understood, I think correctly, that it sought review of the delegate’s decision made on 25 April 1998. 

17. On 20 November 2009, the Tribunal informed the applicant that it had made a decision that it did not have jurisdiction to entertain the second application for review.  It applied established authority that the Tribunal had no jurisdiction to review a delegate’s decision a second time, because its review jurisdiction was exhausted by the first decision of the Tribunal (see the authorities reviewed by Moore J in SZBWJ v Minister for Immigration & Citizenship (2008) 171 FCR 299). The Tribunal therefore assumed that the first Tribunal’s decision was a valid prior exercise of its jurisdiction. The Tribunal said:

    10.Having reached this conclusion the Tribunal finds it unnecessary to consider whether the applicant was properly notified of the delegate’s decision, or whether the review application lodged on 5 November 2009 is invalid for the further reason that it was lodged outside the statutory time limit. 

    The Tribunal previously had explained the mandatory and non‑extendable time limit arising under s.412(1)(b) and reg.4.31.

18. The applicant then filed the present application in this Court on 15 December 2009.  It identifies the Migration decision of which review is sought as being the decision of the second Tribunal declining jurisdiction in response to the second application to the Tribunal. 

19. The application was within time for a review of that decision under s.477 of the Migration Act as it currently stands. It provides:

    477Time limits on applications to the Federal Magistrates Court  

    (1)An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

    (2)The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if: 

    (a)an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

    (b)the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order. 

    (3)In this section:  

    date of the migration decision means: 

    (a)in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975—the date of the written decision under that subsection; or

    (b)in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); or

    (c)in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the oral decision; or

    (d)in any other case—the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate. 

    (4)For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3). 

    (5)To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision. 

20. The supporting affidavit and an amended application filed on 1 April 2010, appear also to invoke the Court’s jurisdiction to review the first decision of the Tribunal handed down in January 1999. Plainly, a review of that decision is a matter for which an extension of time would be required under s.477(2)(a).

21. Essentially, the argument presented by the applicant attacking both decisions of the Tribunal is that the first Tribunal’s decision was invalid, or should be set aside by the Court, on grounds of procedural ultra vires, applying the decision of Cooper J in Xie. 

22. The grounds in the application to the Court might also appear to seek orders quashing the second Tribunal’s decision by reason of its failure to invite the applicant to a hearing before declining jurisdiction. However, the Tribunal was not obliged by the Migration Act to hold any hearing before deciding whether the second application to the Tribunal should be entertained. Moreover, the correctness of the Tribunal’s second decision in relation to its jurisdiction is a matter that the Court addresses itself, regardless of errors of law or procedure by the Tribunal, since it involves questions of jurisdictional fact.

23. If the Tribunal’s assumption of the validity of the first Tribunal’s decision was correct, then its opinion that the Tribunal’s jurisdiction was exhausted was undoubtedly correct. 

24. If the Tribunal’s assumption was incorrect, then there is an alternative reason for declining to order mandamus in relation to the applicant’s second application to it, as a matter of discretion.  The second application to the Tribunal was, in effect, an attempt to revive the jurisdiction of the Tribunal which had already been validly invoked by the applicant in May 1998.  Even if a duty to complete the exercise of that jurisdiction remained theoretically outstanding by reason of a defect in its procedures in 1998, there are clear discretionary reasons for the Court now to decline to recognise that defect and any consequential invalidity of the first Tribunal decision, by way of the issue of Constitutional writs. 

25. The discretionary considerations in the present case essentially duplicate the considerations relevant to granting an extension of time under s.477(2) to give relief directly in relation to the procedures and decision of the Tribunal made in 1998.

26. The principles in relation to the discretion to extend time, which was introduced by Migration Legislation Amendment Act (No. 1) 2009 (Cth) from 15 March 2009, point to the pertinence of an applicant providing a reasonable explanation of the circumstances in which an extension of time is required. Other considerations bearing on whether an extension of time is “necessary in the interests of the administration of justice”, include general considerations as to the merits of the proposed proceeding, any practical injustice suffered by the applicant, the general public interest, and discretionary considerations concerning the administration of justice (see, for example, my judgment in SZNZI v Minister for Immigration & Anor [2010] FMCA 57, and the judgment of Barnes FM in SZNZU v Minister for Immigration & Anor [2010] FMCA 197).

27. When considering the interests of the administration of justice in relation to judicial review of administrative decisions in jurisdictions subject to time limits with powers of extension, an important consideration was identified by McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470 at [15]‑[16], where his Honour explained that “the public interest requires that there be an end to litigation about the efficacy of such acts or decisions”.  Although the period of any extension which is required by the applicant to invoke this Court’s jurisdiction to review the first Tribunal’s decision only commenced from about 21 April 2009, it is, in my opinion, pertinent to address the applicant’s explanations for the much longer delay preceding that date and the date of the Tribunal’s decision.  A consideration of that longer delay is also directly relevant to the Court’s discretion to refuse relief in the nature of constitutional writs on the ground of inadequately explained delay in challenging administrative actions. 

28. The Minister submits in the present case that the applicant’s evidence, which I have summarised above, as to his conduct over the period from 1998 until 2009, does not satisfactorily explain his delay in not initiating any enquiries of the Tribunal or the Department as to the fate of his first application for review by the Tribunal.  It is submitted that the situation is comparable, almost exactly, to the situation addressed by the Full Court in SZIQB (supra), where their Honours concluded: 

    30We consider it appropriate to start from the position that an applicant for judicial review of an administrative decision made more than seven years earlier is required to offer a satisfactory explanation of why the application was not made earlier.  The evidence and submissions of the first respondent bearing on this issue do not constitute a satisfactory explanation.  Rather they have satisfied us that he deliberately undertook a course of conduct that would render it difficult, if not impossible, for the Tribunal, his migration agent and the Department of Immigration to find him.  We are also satisfied that he made no real effort to ascertain the fate of his application to the Tribunal.  These conclusions render it unnecessary for us to consider the apparent strength of the first respondent’s claim to be entitled to a protection visa. 

29. In the present case, having assessed the applicant’s evidence given in the witness box, I am not satisfied that, in fact, he honestly believed over many years prior to 2009 that he had a right to stay in Australia, and was not required to take any steps to inform the Department as to his changes of residence after he lost contact with his migration agent in 2001.  I do not accept that he was led to believe, or indeed believed, that he could not himself make any inquiries as to the fate of his application with the Department of Immigration or the Tribunal, or find somebody to make those contacts, purely on the ground that he could not speak English.  He is a Mandarin speaker living in Sydney throughout that period, and he is a mature adult in full control of his own affairs.  There is an abundance of avenues of assistance available to such people.  I do not accept that he could have lived in Australia for such a long period naively thinking that his immigration status was being adequately attended to over that period.  The very length of the period and my doubts about the credibility of his evidence lead me to conclude, on the balance of probabilities, that he deliberately avoided taking any steps which would inform the Department as to his place of residence, and deliberately avoided initiating enquiries into the state of his Refugee Review Tribunal application, if indeed he was not aware of it.  Even assuming the general truth of his account of his actions, I do not consider it provides a satisfactory explanation for the long period of inactivity in both the Tribunal and in this Court in relation to his first application for review made to the Tribunal. 

1. I have carefully considered whether the applicant might have missed an opportunity to give oral evidence to the Tribunal by reason of the flaw in the Tribunal’s hearing invitation letter, and might thereby as a practical matter have suffered some injustice in 1998.  I can by no means be confident as to this, given the lapse of time and the difficulty of discovering the true state of relations between the applicant and his agent back in 1998.  Considering the possible explanations for his failure to respond to the Tribunal’s letters, there may be a stronger inference that he had left his home at Campsie without informing his agent, and for that reason the agent found himself unable to further assist the applicant or inform him of the outcome.  On balance, I am not satisfied that the procedural error of the Tribunal had material consequences on the outcome of its decision in 1999, or resulted in any substantial injustice to the applicant.  

2. Weighing up all the considerations, which I have discussed above and which are pointed to in the authorities, I would decline to extend time to allow a review of the Tribunal’s first decision to be entertained under s.476 of the Migration Act. I have not been satisfied that it is in the interests of the administration of justice to extend time under s.477(2). The same considerations pointing against this also cause me to decline relief in the exercise of discretion, in the event that any jurisdiction under s.476 otherwise remained available to empower the grant of relief in response to the present application.

3. The consequence of all my above reasoning is that I must dismiss the application. 

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  28 June 2010