BZAAN v Minister for Immigration & Anor [2011] FMCA 97 (22 February 2011)

Federal Magistrates Court of Australia

[Index] [Search] [Download] [Help]

---

BZAAN v Minister for Immigration & Anor [2011] FMCA 97 (22 February 2011)

Last Updated: 24 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BZAAN v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 97

MIGRATION – Application for extension of time – Application to Review decision of Refugee Review Tribunal – mo merit in proposed application – extension refused.

Migration Act 1958 (Cth), ss.425(2)(b), 430A, 441A , 441C, 441C(4), 477, 477(2)

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 Parker v the Queen [2002] FCAFC 133 SZGPB v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 587 Minister for Immigration and Indigenous Affairs v SZFML [2006] FCAFC 152 SZCOZ v Minister for Immigration and Citizenship [2007] FCA 641 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 SZMZX v MIAC [2009] FMCA 343 SZNOR v Minister for Immigration [2009] FMCA 639 SZNHU v MIAC (No 3) [2009] FMCA 777 SZNZI v Minister for Immigration & Citizenship [2010] FMCA 57

Applicant:

BZAAN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

BRG 1059 of 2010

Judgment of:

Jarrett FM

Hearing date:

25 November 2010

Date of Last Submission:

25 November 2010

Delivered at:

Brisbane

Delivered on:

22 February 2011

REPRESENTATION

Counsel for the Applicant:

No appearance

Counsel for the Respondents:

Mr Carey

Solicitors for the Respondents:

Clayton Utz

ORDERS DELIVERED ON 25 NOVEMBER, 2010

(1) The application for an extension of time be dismissed;
(2) That all outstanding applications are dismissed;
(3) That the applicant pay the first respondent’s costs of and incidental to the proceedings fixed in the sum of $2,935.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE

BRG 1059 of 2010

BZAAN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for orders to review a decision of a refugee review tribunal made on 12 May, 2010 which affirmed an earlier decision of the First Respondent’s delegate to refuse the Applicant a protection visa.
2. The Applicant seeks that:
   1. the order of the Tribunal be set aside;
   2. the matter be remitted to another refugee review tribunal for fresh consideration;
   100. the Applicant be allowed a “proper opportunity” to provide sufficient evidence to the Tribunal; and
   4. the Applicant be afforded natural justice.
3. The principal application was filed out of time and the Applicant also seeks an extension of time within which to commence the principal proceeding.

BACKGROUND

4. On 24 November, 2009 the Applicant arrived in Australia. The Applicant applied for a visa on 23 December, 2009.
5. A delegate of the First Respondent refused the visa on 3 March, 2010 and notified the Applicant by letter dated 3 March, 2010 that the application had been refused. The Applicant applied for a review of the delegate’s decision by a refugee review tribunal on 29 March, 2010.
6. On 31 March, 2010 the Tribunal sent to the Applicant an acknowledgment of the application. On 20 April, 2010 the Tribunal sent the Applicant an invitation to appear before the Tribunal. The letter advised the Applicant that the Tribunal had considered the material before it but was unable to make a favourable decision on the application. The letter indicated that the Tribunal hearing was to be held on 2 June, 2010 at 10.00am and specified the relevant location. Attached to the letter was the Response to Hearing Invitation Form ordinarily used by the Tribunal.
7. The Tribunal received a letter on 6 May, 2010 purporting to be a letter from the Applicant to the Tribunal indicating that the Applicant did not wish to attend the scheduled hearing. Attached to that letter was the Response to Hearing Invitation, but it was not signed or dated by the Applicant.
8. On 11 May, 2010 the Tribunal wrote to the Applicant about the unsigned Response to Hearing Invitation. A second Response to Hearing Invitation form was enclosed in the letter and the Applicant asked to complete it in full. The Tribunal also included a “Change of Contact Details Form” and suggested that the Applicant had not given the Tribunal a residential address.
9. On 12 May, 2010 the Tribunal decided to affirm the decision of the Delegate to refuse the visa. On 13 May, 2010 the Tribunal sent a letter to the Applicant advising of the Tribunal’s decision and enclosing the reasons for decision.
10. On 28 May, 2010 the Tribunal received the second Response to Hearing Invitation form from the Applicant which confirmed that the Applicant did not wish to attend the Tribunal hearing. This time the form was signed and dated by the Applicant.

THE APPLICATION FOR EXTENSION OF TIME

11. Section 477 of the Migration Act 1958 (Cth) sets out the time limit for applications to the Federal Magistrates Court for review of decisions of the Tribunal. Section 477 relevantly provides as follows:
    • 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.
12. Pursuant to subsection 477(3)(b), the “date of the migration decision” is defined, in the case of a written decision made by the Tribunal, as the date of the written statement under subsection 368(1). Accordingly, in this case, the date of the migration decision was 12 May, 2010. The Application for Review to the Federal Magistrates Court therefore had to be filed by 16 June, 2010. The Applicant filed the Application on 19 October, 2010 and is therefore over 4 months late.
13. As section 477(2) sets out, the Applicant is required to make an application for an order for an extension of time in writing to the Court, specifying why it is necessary, in the interests of the administration of justice, to make the order. The Applicant must also satisfy the Court that it is necessary, in the interests of the administration of justice, to make the order. My attention was drawn to several recent decisions of the Federal Magistrates Court.[1] In particular, in SZNOR v Minister for Immigration and Anor [2009] FMCA 639 Scarlett FM set out a number of considerations that, in his Honour’s opinion, the Court should take into account on such an application.[2] These may be summarised as:
    1. whether or not an application has been made in writing to the Court specifying why an extension is necessary in the interests of the administration of justice;
    2. whether the Applicant has offered a reasonable explanation for the delay;
    100. the extent of the delay;
    4. a consideration of both sides of the litigation, including the effect on the Applicant if the application is not granted and the effect on the Respondent or the detriment to be suffered by the Respondent if the application is granted;
    5. the nature of the substantive application. That is, whether the Applicant can show an arguable case.
14. In SZNZI v Minister for Immigration & Citizenship [2010] FMCA 57, Smith FM considered the Court’s power to extend time and stated:[3]
    • The considerations which might bear on that discretion are unconfined. As with other powers to extend time and to waive defaults in relation to court procedures, two “critical” considerations are: “(1) that an explanation, reasonable to the circumstances, is provided for the party’s absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order” (see Kirby J in Allesch v Maunz (2000) 203 CLR 172 at [48]). Other considerations may come into play, including in my opinion, the implications of the appeals structure and alternative judicial review avenues (see Yu v Minister for Immigration [2009] FMCA 1161 at [40]–[41]). None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two “critical” considerations (see Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506 and 510). When reaching its ultimate conclusion, the court must weight all of the relevant circumstances together by reference to the statutory criterion provided in s 477(2)(b), quoted above.
15. In this case, the Applicant has made an application for an extension of time, within the Application for Review.[4] Within the Application filed by the Applicant are advanced three (3) submissions as to why the Court ought exercise its discretion to grant the extension. They are:
    1. The second respondent failed to effectively notify the applicant of their affirmation to not grant a Protection (Class XA) Visa to him and his wife;
    2. The applicant was not aware of the decision until after the appeal period had ceased.
    100. Considering the circumstances it would be unfairly prejudicial and subsequently in the interests of justice to grant the applicant an extension of time to lodge this appeal.
16. As to the explanation for the Applicant’s delay in commencing the principal proceedings, the respondent submits that no reasonable explanation for the delay has been given. The Tribunal properly exercised its statutory functions when notifying the Applicant of the decision to refuse the grant of the visa. That is, the Tribunal complied with the requirements of ss.430A, s441A and s441C of the Migration Act.
17. Additionally, irrespective of the fact that the Applicant claims that he was unaware of the decision until after the review period had passed, the effect of s.441C(4) Migration Act 1958 (Cth) is that the Applicant is deemed to have received the documents seven (7) working days after the date of the document. Therefore the Applicant is deemed to have received the document by no later than 24 May, 2010.
18. The delay is extensive, being in the order of 5 months. The Applicant has not provided any reasonable explanation for that delay in applying to this Court for review.
19. The First Respondent did not submit that he has suffered prejudice by reason of the Applicant’s tardiness. However, “the mere absence of prejudice is not enough to justify the grant of an extension.”[5] Moreover, the finality to litigation is an important consideration.[6]
20. The effect of not granting an extension of time in this case may be grave for the Applicant. However, that factor needs to be balanced against the other considerations considered both above and below in these reasons.
21. As Scarlett FM noted in SZNOR, if the Applicant cannot show an arguable case then permitting the application to be made would be futile.[7] The First Respondent submits that the Application does not disclose an arguable case. I agree, for the reasons that follow and it is to that matter to which I now turn.

THE DECISION UNDER REVIEW

22. The Federal Magistrates Court has jurisdiction to review a decision of the Tribunal[8] unless, inter alia, it is a privative clause decision. The Tribunal’s decision is a privative clause decision[9]; however, if the decision contains a jurisdictional error the decision is not protected by s.474 of the Act[10] and is liable to judicial review.

Grounds of Review

23. The following grounds of review are set out in the Application:
    • "The member fell into jurisdictional error in making the decision for the following reasons:
    • 1. The applicant was not afforded procedural fairness as a person that held themselves out to be a migration agent was fraudulent in their conduct
    • Particulars
    • The applicant employed a migration agent on his arrival to Australia to complete his application for a Protection (Class XA) Visa;
    • The migration agent at all times held himself out to be a person with the authority and skill to act in such a position;
    • The migration agent submitted the application on behalf of the applicant. This application submitted was incomplete. The application did not include full and detailed particulars of the applicants claim to protection in accordance with his instructions.
    • The applicant speaks, reads and writes only limited English and had confidence that his migration agent would complete the application in accordance with his instructions, the Migration Act 1958, the Migration Regulations 1994 and the relevant gazetted notices.
    • The agent failed to comply with the above and failed to provide the Department with a full and proper application of the applicant.
    • The migration agent was fraudulent in his dealings with the applicant in that he held himself out to be an agent registered with the Migration Agents Registration Authority.
    • 2. There was a failure to comply with statutory procedures by the second respondent in that there was ineffective notification of the decision to the applicant.
    • Particulars
    • The applicant was not promptly and immediately notified of the decision made by the second respondent regarding the affirmation to not grant the applicant and his wife a Protection (Class XA) Visa.
    • The applicant was unaware that a decision had been made regarding his status in Australia until about August 2010. The decision by the second respondent is recorded to have been made on 12 May 2010.
    • The applicant only became aware that a decision had been made by the second respondent when the immigration department, the first respondent contacted him:
    • 3. There was a failure to comply with statutory procedures by the second respondent in that the usual process for the applicant not attending a hearing was not adhered.
    • Particulars
    • The applicant did not respond to the invitation to hearing by the second respondent through the usual channels.
    • A person sent a letter to the second respondent presenting themselves to be the applicant advising that they did not wish to attend on the appointed hearing date.
    • The form which is usually required in this instance was not returned, nor was the letter authorised by the actual applicant.
    • The second respondent failed to comply with its own statutory procedures relating to response to a hearing invitation.
    • The applicant has been unfairly prejudiced by this failure to comply as he was not given the opportunity to attend at the Tribunal and provide oral evidence in relation to his claims.
24. As to ground one I accept that this ground appears to claim, without being particularised, that the purported agent has committed “fraud on the Tribunal” as that expression was explained in SZFDE v Minister for Immigration and Citizenship and Anor [2007] HCA 35; (2007) 232 CLR 189. However, this case is very different, to SZFDE. Apart from anything else, the applicant has not appeared to give any evidence that would support any findings that the Applicant was at any stage represented by a migration agent. In the Applicant’s initial “Application for Review” to the Tribunal at “Section C”, the Applicant ticked the “No” box when responding to the question:
    • Do you have an adviser you authorise to act for you in relation to this application?
    • (for example a migration agent)
25. At “Section F” of the Application for Review the Applicant signed and dated the Application form declaring that, “the information I have supplied on or with this form is complete and correct in every detail”.
26. Given that the Applicant declared that the Applicant did not have a migration agent, it is impossible to determine that there was fraud upon the Tribunal. Nor can I be satisfied that there was fraud perpetrated upon the Applicant.
27. As to ground 2, the Applicant complains that there was no proper notification by the Second Respondent of its decision. However, the material contained in the bundle of relevant documents filed by the First respondent reveals that the Tribunal acted in accordance with the provisions of the Act. Although the Applicant’s address was not provided in the Application to the Tribunal, the Applicant responded to correspondence that the Tribunal sent to the Applicant on 6 May, 2010 and 28 May, 2010.
28. By letter dated 13 May, 2010 the decision of the Tribunal was sent to the Applicant by registered prepaid post[11] to the Applicant’s last known address for service. The Tribunal was entitled to notify the Applicant of its decision in that way: s.430A and s.441A of the Act. I am satisfied that the Tribunal complied with the notification obligations cast upon it by the Act.
29. The Applicant is deemed to have received the notification sent by the Tribunal.
30. As to ground three, the Applicant appears to assert that the Tribunal failed to exercise its statutory procedures in failing to allow the Applicant to attend the hearing.
31. The Applicant did not sign or date the first response sent back to the Tribunal in reply to the Tribunal’s invitation to attend a hearing. The Tribunal sent a second Response to Hearing Invitation request to the Applicant. Notwithstanding that, the Tribunal decided to hear and determine the Application for Review on the basis of the unsigned and undated first Response to Hearing Invitation. The applicant returned the second Response to Hearing Invitation. It indicated that the Applicant did not wish to attend on 28 May, 2010.
32. The Tribunal proceeded on the basis that if a Response to Hearing Invitation is received indicating that an Applicant does not wish to attend a Tribunal hearing, then the “applicant is not entitled to appear before the Tribunal...”[12] as they have consented to the Tribunal making a decision in their absence.[13]
33. In relation to this irregularity however, Scarlett FM in SZNHU v MIAC and Anor (No.3) [2009] FMCA 777 indicated in relation to a similar difficulty but in relation to s424 of the Act,
    • "As I said the letter was not a letter under section 424 of the Act. Even if I am wrong in this conclusion, and I am firmly of the belief that I am not, this procedural irregularity, to use the Minister's submission, appeared to have no affect on the way the Tribunal proceeded to hear the matter or the way the Tribunal decided. The Tribunal still invited the applicant to a hearing. It gave him plenty of notice to appear and he did not appear. He had plenty of time to send the information in. If he did not send it in immediately there is no detriment to him, but he sent in nothing to add to his case and did not attend the hearing. Where is the prejudice to the applicant? There is none."
34. It was also noted by Smith FM in SZMZX v MIAC and Anor [2009] FMCA 343 that,
    • "As I have indicated, no other jurisdictional error can be found in the proceedings or reasons of the Tribunal. Any jurisdictional error which might have arisen from the insignificant departures from formalities attaching to s.424(2) invitations were so immaterial to the processes of the Tribunal and how it considered the applicant's case that, in my opinion, relief should be refused..."
35. Both of these decisions proceed on the footing that in the absence of some prejudice or detriment to the Applicant arising from the procedural irregularity, the irregularity is of no moment.
36. In the present case, the Applicant has suffered no detriment from the irregularity. That is patently obvious as both the letter enclosing the first Response to Hearing Invitation and the second Response to Hearing Invitation indicated that the Applicant did not wish to attend the Tribunal hearing.
37. The Applicant has not been materially prejudiced by the Tribunal’s error, even if it could be said that the Tribunal has made an error in the way in which it has held a hearing in the absence of the Applicant.
38. To the extent that t he Applicant suggests in the application that another person sent a letter to the Tribunal pretending to be the Applicant and advising that they did not wish to attend on the appointed hearing date, the Applicant has not appeared to give any evidence that would support any findings to that effect.

Conclusion

39. The Applicant presents no case that suggests that the Tribunal’s decision is affected by jurisdictional error. The Applicant’s lack of prospects in the principal application demands that the application for the extension of time be dismissed.
40. The Application filed 19 October, 2010 shall be dismissed. The Applicant is ordered to pay the First Respondent’s costs of and incidental to the Application be fixed in the sum of $2,935.00 pursuant to Schedule 1, Part 2, Item 1(b) Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date: 22 February 2011

---

[1] SZJTW v Minister for Immigration and Anor [2009] FMCA 508, SZJTK v Minister for Immigration and Anor [2009] FMCA 543 and SZLUC v Minister for Immigration [2009] FMCA 378.

[2] At [10]-[16].

[3] At [11].

[4] See page 2 of the Application for Review.

[5] Parker v the Queen [2002] FCAFC 133 at [6], endorsing the comments of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344.

[6] See SZGPB v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 587 at [62]; SZCOZ v Minister for Immigration and Citizenship [2007] FCA 641 at [3].

[7] SZNOR, at [16].

[8] s.476 of the Migration Act 1958 (Cth) (the Act).

[9] s.474 of the Act.

[10] Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [76].
[11] Migration Act 1958 (Cth) s441(4).
[12] Minister for Immigration and Indigenous Affairs v SZFML and Anor [2006] FCAFC 152.
[13] Migration Act 1958 (Cth) s.425(2)(b).