SZQCW v Minister for Immigration

[2011] FMCA 830

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQCW v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 830

MIGRATION – Review of decision of the Refugee Review Tribunal – application for extension of time – whether in interests of administration of justice – no satisfactory explanation for delay – no arguable case for relief claimed – application dismissed.

Migration Act 1958 (Cth), ss.48B, 91X., 417, 476, 477
Federal Magistrates Court Rules 2001 (Cth), r.44.12

Vu v Minister for Immigration and Citizenship & Anor [2008] FCAFC 59; (2008) 101 ALD 211
Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576
Batuwantudawa, in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684
Re Ruddock; Ex Parte LX [2003] FCA 561
Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266
Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1331
Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 186
Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 21; (2004) 205 ALR 198
M211 of 2003 v Minister for Immigration and Multicultural Affairs [2004] FCAFC 293; (2004) 212 ALR 520
SZJYR v Minister for Immigration and Citizenship [2010] FCA 135
SZGZW v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 457
SZGPZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 683
Applicants M160/2003 v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 195
NAGG of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2007] FMCA 84
SZHEH v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FMCA 1301
SZFGO v Minister for Immigration and Citizenship [2008] FCA 1478
Gararth v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 316
SZEEF v Minister for Immigration [2006] FMCA 661
SZMKK v Minister for Immigration and Citizenship [2009] FCA 1340
SZFDE & Ors v Minister for Immigration and Citizenship& Anor [2007] HCA 35; (2007) 232 CLR 189; (2007) 237 ALR 64; (2007) 81 ALJR 1401; (2007) 96 ALD 510

Applicant: SZQCW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1653 of 2011

Judgment of: Nicholls FM

Hearing date: 26 August 2011

Date of Last Submission: 26 August 2011

Delivered at: Sydney

Delivered on: 26 August 2011

REPRESENTATION

The Applicant: In person

Appearing for the Respondents: Mr M Alderton

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) is refused.

2. The application of 2 August 2011 is dismissed pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs set in the amount of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1653 of 2011

SZQCW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised From Transcript)

1. I have before me an application made on 2 August 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 February 2009, which affirmed a decision of a delegate of the respondent Minister to refuse a protection visa to the applicant. The applicant, given the circumstances of the case, has also made a second application that the time for the making of his substantive application be extended under s.477 of the Act.

Background

1. When the matter was first brought before the Court on 24 August 2011, the Minister asked that this Court proceed immediately to a show-cause hearing pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“Court’s Rules”). At that time it was clear that the applicant was unable or unwilling to understand the issues that were put against him in this matter, and specifically as they rose from the Minister’s application for an immediate show-cause hearing.

   
   

   I therefore adjourned the hearing of the Minister’s application for the purpose of allowing the applicant to obtain legal or, as he indicated, other advice, should he choose to do so.

Before the Court

1. On resumption today, the following material is in evidence before the Court. The applicant’s affidavit of 7 July 2011, which annexes a copy of the Tribunal decision record. Relevantly a letter from the Tribunal to the applicant dated 4 March 2009, addressed to him at an address in West Ryde, New South Wales, which is also before the Court as Respondent’s Exhibit 1 (“RE-1”).

2. Also before the Court are Respondent’s Exhibits 2 (“RE-2”),

   
   

   3 (“RE-3”) and 4 (“RE-4”), which represent a bundle of letters detailing, or arising out of, various requests made by the applicant in February/March of this year seeking the Minister’s intervention, either pursuant to ss.417 or 48B of the Act.

3. Also before the Court is Respondent’s Exhibit 5 (“RE-5”), which is a letter from his then solicitor and migration agent, a Ms Margaret Tan of Margaret Tan & Associates, dated 16 February 2009 to the Tribunal. The letter makes reference to instructions from the applicant that he did not wish to attend the hearing and consented to the Tribunal deciding the matter on the papers.

4. Also before the Court is Applicant’s Exhibit 1 (“AE-1”), which is a copy of a letter from the applicant dated 26 February 2009 to the Tribunal in which the applicant complains about the conduct of Ms Tan. The applicant claims in that letter that he had been “cheated” and that she acted contrary to his advice.

5. I also take note of orders made by Federal Magistrate Cameron on 9 June 2009, wherein the application to the Court appears to have discontinued proceedings in this Court. The Court was informed that the applicant had been given a pseudonym, albeit a different pseudonym. Such assignment of a pseudonym by the Court’s Registry would imply that the matter the applicant had brought before the Court, and which was discontinued, was a refugee application related matter (see s.91X of the Act). It appears, however, that this was in relation to another migration matter (see [36] below).

Consideration

1. The test that I am required to address today is whether I can be satisfied, or not, that the applicant has raised an arguable case for the relief claimed, pursuant to r.44.12 of the Court’s Rules.

2. The Minster’s position, with which I ultimately agree, is that the applicant has not raised an arguable case, and that therefore the application, that is the substantive application to the court, should be dismissed.

3. There are a number of issues that weigh upon this matter.

4. First is the matter of the delay in coming to this Court. The Tribunal decision was made on 25 February 2009. The application to the Court was made on 2 August 2011. The current version of s.477(1) of the Act (requiring an applicant aggrieved by a Tribunal decision to come to this Court with his application within 35 days of the date of this decision) came into operation on 15 March 2009, clearly some three weeks after the relevant Tribunal decision.

5. As the relevant Tribunal decision predated the current version of s.477, regard must be had to the relevant transitional arrangements that accompanied the introduction of the current version of s.477 to the Act. The transitional arrangements provide, amongst other things, that the date of a decision, for the purposes of s.477(1) (a Tribunal decision made prior to 15 March 2009) is to be taken, for the purposes of s.477(1), as being made on 15 March 2009 (Migration Legislation Amendment Act (No 1) 2009 (Act No.10 of 2009)).

6. The applicant, therefore, was required by that section to have made this application within 35 days of 15 March 2009. Plainly, he did not do so. He made the application well over two years after the date on which he should have made such an application.

7. This immediately brings us, therefore, to the application made by the applicant to extend time by which he could bring his substantive application, and the reasons for the delay in doing so as being one of the elements that the Court should have regard in considering whether the time should be extended pursuant to s.477(2). That is, whether it would be in the interest of the administration of justice to do so.

8. A number of elements are relevant, including the length of the delay, any satisfactory explanation for it, and the merits of the substantive application.

9. On the question of delay, the applicant himself puts forward as the grounds of the application for an extension of time as follows:

   “The Tribunal failed to reopen my case.  I obtained copy a RRT decision on Monday 1-8-011.  I am asked to depart Australia. Circumstances are beyond my control.  I ask for justice and opportunity to review this case as a matter of natural justice. The Hon court to give me the opportunity to deal with my case.  I have an arguable case.”

10. What must immediately be noted is that, in spite of the applicant’s seeming inability, or unwillingness, as I have alternatively described it, to understand the relevant issues that he was required to address before the Court, a presumption arises, with the reference to “I have an arguable case”, that the applicant well understood, and anticipated, the very course of action on which the Minister has subsequently embarked. That is, to ask the Court to dismiss the substantive application on the basis that the applicant has not raised an arguable case for the relief claimed.

11. The applicant’s explanation for the delay is that he did not know of the Tribunal’s decision. I note immediately that this submission was not put before the Court in any evidentiary context that could be properly tested. In any event, the applicant’s submissions were that he had written to the Tribunal on 26 February 2009 (AE-1) to complain about the conduct of Ms Tan (his agent). He provided the Tribunal with a copy of correspondence from Ms Tan (RE-5), which notified it that the applicant did not wish to attend a hearing before it, had nothing further to add in support of his claims, and that the applicant consented to the Tribunal deciding the matter on the papers. The applicant submits this was done without his consent, and that Ms Tan had acted without instruction in this matter.

12. In answer, in part to the applicant’s submission that he did not know of the Tribunal’s decision until 1 August 2011, it is difficult to see why the applicant himself would be writing to the Tribunal on 26 February 2009 asking the Tribunal to re-open his case and to keep his file open if he did not know that the Tribunal had, in fact, made a decision adverse to him. His letter simply makes no sense unless it is understood as being a response to an adverse Tribunal decision.

13. Further, and also in evidence before the Court (RE-1 and also annexed to the applicant’s affidavit to this Court of 7 July 2011), is the Tribunal’s response. The applicant’s submission was that the copy of the Tribunal’s letter of 4 March 2009, annexed to his affidavit, was not received by him at the relevant time but was, in fact, provided to him in early August 2011. This is at least consistent with what he has put in his application to the Court in seeking an extension of time, that he obtained a copy of the Tribunal’s decision on Monday, 1 August 2011.

14. The immediate difficulty for the applicant though, is that his submission is contradicted by other evidence before the Court and variously contradicted by other assertions made by him. That is, that the assertion that he obtained the Tribunal decision on 1 August 2011 is contradicted by the fact that his affidavit, in which he made this claim, was, in fact, made before a Justice of the Peace on 7 July 2011. In this affidavit the applicant affirmed that he was attaching a copy of the Tribunal decision (“my Refugee Review Tribunal which I just will receive from the Tribunal”).

15. Therefore, at 7 July 2011 either the applicant had just received the decision from the Tribunal, or was anticipating that he would receive something from the Tribunal. His evidence in this regard is unclear. The inference at least is that he knew of the Tribunal’s decision.

16. However, given that the affidavit says that he attaches a copy, and the affidavit was affirmed on 7 July 2011, the presumption must arise that he had a copy as at 7 July 2011. Otherwise, he could not have attached it to the affidavit. The applicant has made no explanation, nor brought any other evidence to the Court to explain anything to the contrary.

17. In any event, again focusing on the question of the delay, the applicant’s explanation, at best, appears to be that he did not know of the Tribunal’s decision, on or about the time that the decision was made (February 2009). Even if this were to be accepted, he has given contradictory explanations that he found out about it either in July 2011 or August 2011.

18. But in contradiction to this stands his various requests to the Minister seeking his intervention pursuant to ss.417 or 48B of the Act. A series of requests dating back to the end of 2009, which would plainly indicate knowledge of the Tribunal’s decision prior to July/August 2011.

19. I note, for example, in a copy of the letter sent to a “Mr Laba Sarkis” (a person who is not a migration agent, but who often is mentioned in cases of this type as a “friend” assisting applicants) by the Minister’s department dated 17 January 2011. In this letter there is clear reference in the following terms:

    “While section 417 of the Act provides the Minister with the power to substitute a decision of the Refugee Review Tribunal with a more favourable decision, it is a discretionary,

    
    

    non-compellable power.”

20. The import of this is that it provides the contradiction to the applicant’s claim that he did now know of an adverse Tribunal decision until, variously, July/August 2011, when plainly a letter was sent to him from the Minister’s department, sent to him through Mr Laba Sarkis whom, the applicant told the Court today, assisted him with various intervention correspondence to the Minister, since about the end of 2009.

21. What can be clearly said, as Mr Alderton submitted, is that there are in fact two separate periods that could be focused on in relation to the delay.

22. First is that period of 35 days from the deemed date of the Tribunal’s decision until the beginning of this year. Then at least from 17 January 2011, where the applicant was advised of his unsuccessful request for Ministerial intervention. Advice which specifically referred to an unfavourable decision of the Refugee Review Tribunal that, in context, applied to or concerned the applicant. That delay is a period of eight months, so there are two periods of delay. One nearly a year and a half. The other one of eight months.

23. But whichever way, and whichever period is focused on, what is clear is that the applicant has not satisfactorily explained the delay in seeking judicial review. On whichever version of the events, either the applicant’s version or the version that I prefer, and that I have already outlined in relying on the documentation that has been put before the Court, it is clear that the applicant has pursued intervention by the Minister for Immigration in various ways. His own submission to the Court was that Mr Laba Sarkis, from on or about the end of 2009, assisted him in this regard. A claim which is certainly confirmed with reference to RE-5 (the letter of 17 January to Mr Laba Sarkis covering the letter to the applicant).

24. Mr Alderton referred the Court to Vu v Minister for Immigration and Citizenship & Anor [2008] FCAFC 59; (2008) 101 ALD 211 (“Vu”) as authority that the seeking of Ministerial intervention was not an acceptable explanation for a period of delay and one where, as in that case, the circumstances were concerned with prospects of success in the prosecution of the matter concerning that case.

25. I note generally there is a long list of authorities that stand for the proposition that seeking Ministerial intervention rather than pursuing judicial review, particularly in circumstances where the applicant had knowledge of, or could have obtained knowledge of, the opportunity to do so, is not a satisfactory explanation, although I note that some authorities propose a contrary position (see Vu per Jessup J (Gyles and Besanko JJ agreeing) at [29], Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 at [9], Batuwantudawa, in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684 per Gray J at [9], Re Ruddock; Ex Parte LX [2003] FCA 561 per Heerey J at [42], Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266, Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1331 per Weinberg J at [18] – [20] (see also Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 186), Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 21; (2004) 205 ALR 198, M211 of 2003 v Minister for Immigration and Multicultural Affairs [2004] FCAFC 293; (2004) 212 ALR 520, SZJYR v Minister for Immigration and Citizenship [2010] FCA 135, SZGZW v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 457, SZGPZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 683. But see contrary: Applicants M160/2003 v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 195, NAGG of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2007] FMCA 84, SZHEH v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FMCA 1301, SZFGO v Minister for Immigration and Citizenship [2008] FCA 1478, Gararth v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 316, SZEEF v Minister for Immigration [2006] FMCA 661, SZMKK v Minister for Immigration and Citizenship [2009] FCA 1340).

26. As I have indicated, I rely on what I consider to be the later authorities and Full Federal Court authorities, such as Vu, for the proposition that seeking Ministerial intervention as such is not a satisfactory explanation in these circumstances.

27. But even if I were to find to the contrary position, what remains is that, as of 17 January 2011, the applicant had apparently exhausted his last such request for intervention. The applicant was on notice at that time of the application for an extension of time. On his own submission to the Court he had the assistance of Mr Laba Sarkis, who he said was not a lawyer or a migration agent but who is well known to this Court as remarkably having assisted a large circle of “friends” and acquaintances (and the applicant claimed that he was an acquaintance) with making applications, not only to the Minister’s department, but to this Court. Indeed, Mr Laba Sarkis over the years has even appeared in various capacities and speaking for applicants before the Court.

28. Whatever may have occurred up to January 2011, it is clear that from that time the applicant had the opportunity to have found out about the opportunity of coming to this Court and would have known of the Tribunal’s decision, given correspondence that made specific reference to it, and did nothing between 17 January 2011 and 2 August 2011 in coming to this Court with any application about the Tribunal’s decision.

29. I also note that the applicant would have at least known of the existence of this Court and the capacity to come to this Court to make complaints, generally, about migration matters, by the fact that he commenced, and then discontinued proceedings, albeit in relation to another migration matter, that were ultimately discontinued on 9 June 2011. There is no evidence before me when that matter would have commenced, but I take note of submissions made by Mr Alderton that that matter commenced in March 2011.

1. The first issue then is that, for all those reasons, I am not satisfied that the applicant has provided a satisfactory explanation for the delay in coming to this Court. A matter that is relevant as to whether it is in the interest of the administration of justice that the time for the making of such an application be extended.

2. Other such matters relate to, for example, any impact on the applicant, and clearly the dismissal of the application today would have an impact on the applicant and that is, as he has indicated in his own material to the Court, he has been asked to depart Australia.

3. But that must be weighed, in my view, by the prejudice to the Minister in allowing proceedings to continue, proceedings which do not put forward an arguable case or, indeed, in another sense, which have little prospect of success. I say that in the context of the extension of time, rather than the test in r.44.12(1)(a) of this Court’s Rules.

4. That brings me to the merits of the substantive application.

5. The application itself to the Court is in the following terms:

   “1. The Tribunal misunderstood my claims.

   2. The migration agent misled me and was not acting properly and was not instructed to make a decision on paper.  She failed to notify me of the hearing.

   3. The migration agent acted in bad faith.

   4. The RRT acted contrary to fairness and natural justice.”

6. In relation to ground one, the applicant has brought no evidence whatsoever, nor has he made any claim whatsoever, of any misunderstanding of the Tribunal of his claims.

7. In relation to ground two, as Mr Alderton correctly, in my view, submitted, this immediately evokes consideration of the application of what the High Court said in SZFDE & Ors v Minister for Immigration and Citizenship& Anor [2007] HCA 35; (2007) 232 CLR 189; (2007) 237 ALR 64; (2007) 81 ALJR 1401; (2007) 96 ALD 510. In that case, the applicant did not appear at a Tribunal hearing. A lower Court found this was as a result of fraudulent conduct by a third party, who was not a party to the proceedings. The High Court found that such fraud by a third party would vitiate the process before the Tribunal, such as to lead to jurisdictional error.

8. The applicant has submitted to the Court, supported by his exhibit

   
   

   (AE-1), that he has been “cheated”, and that his agent acted contrary to his advice. That he did not give instructions to Ms Tan to ask the Tribunal to decide his case on the papers.

9. The difficulty for the applicant is, as Mr Alderton submitted, that even such an allegation of that type falls far short of the fraud that would be necessary to be established, and found, such that jurisdictional error could be discerned in the Tribunal’s decision.

10. Importantly, despite being given the opportunity, both today to make presentation to the Court, and taking into account that the Court attempted to explain to the applicant the need to seek legal advice and outlined the relevant issues on the last occasion he was before the Court, the applicant has said nothing to the Court to even suggest that there was evidence that he could bring to the Court to support his claim. Let alone that such evidence would form the basis of putting forward an arguable case for the relief that the applicant claims.

11. Without such an indication or reference by the applicant, what is left is a case, as Mr Alderton has said, one of where there may well have been confusion between the applicant and his migration agent, there may well have been negligence on the part of the migration agent, there may even have been “bad” advice on the part of the migration agent. But in the absence of any evidence, and in particular in the absence of anything from the applicant today to indicate that there may be some evidence, or to seek an opportunity to present such evidence at some further time, what remains is that the grounds, as pleaded in the substantive application to the Court do not, in those circumstances, raise an arguable case for the relief claimed.

12. I note also, and further, that RE-4 (the letter from solicitor Ms Tan, dated 16 February 2009 to the Refugee Review Tribunal), as Mr Alderton submitted, and the reference in that letter to instructions received from the applicant that he did not wish to attend the hearing and had nothing further to add, and consented to the Tribunal proceeding on the papers, is in fact consistent with what the applicant has told the Court today. Namely that he was asked to sign a letter by his migration agent and, in fact, in the circumstances, I am satisfied that that was the letter to which the applicant was referring. If anything, this would tend to detract from the applicant’s claims that he had no knowledge of relevant events at the time.

Conclusion

1. There is an absence of a satisfactory explanation for the delay in coming to this Court. This would be one important element if the matter had been allowed to go to a further hearing, and would have weighed heavily against the applicant. Second, there is an absence of anything before the Court now, or indeed the indication that anything could be put before the Court at some future time, that is by way of evidence to support the applicant’s bare assertions. In these circumstances, it is the case that the applicant has not raised an arguable case for the relief claimed. Nor, given the absence of any reference by the applicant, or indication by the applicant, that such an application could be amended or converted into an application that raises an arguable case, it is appropriate in all those circumstances that I grant the course of action pressed by the Minister today that I dismiss the application pursuant to r.44.12(1)(a) of the Court’s Rules. Noting, in case the matter becomes of importance at some future time, that r.44.12(2) of the Court’s Rules provides that a dismissal under paragraph (1)(a) of r.44.12 is interlocutory. I will make orders accordingly.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  31 October 2011