SZLDC v Minister for Immigration and Citizenship [2008] FCA 1359

FEDERAL COURT OF AUSTRALIA

SZLDC v Minister for Immigration and Citizenship [2008] FCA 1359

SZLDC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 735 OF 2008

GRAHAM J

13 AUGUST 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 735 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLDC

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE OF ORDER: 13 AUGUST 2008

WHERE MADE: SYDNEY

THE COURT:

1. Orders that the appeal be dismissed. 2. Makes no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 735 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLDC

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE: 13 AUGUST 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The matter presently before the Court is an appeal from a judgment of Orchiston FM, delivered on 12 May 2008 on an application for constitutional writ relief filed in the Federal Magistrates Court of Australia on 31 July 2007. Her Honour ordered that the application be dismissed. It will be necessary to later return to the reasons for judgement of her Honour (see SZLDC v Minister for Immigration and Citizenship [2008] FMCA 588), however, I would observe that she said at [48]: '48. It is not necessary … for the Court to consider the first respondent's submissions that, in the exercise of its discretion, it should refuse the relief sought due to "unwarranted delay" on the part of the applicant.' 2 I am of the opinion that the Refugee Review Tribunal ('the Tribunal') committed jurisdictional error in failing to exercise jurisdiction in the present case. However, I am of the opinion that in the exercise of the Court's discretion constitutional writ relief should be refused. 3 The appellant, who is identified for the purposes of these proceedings as SZLDC, was born in the People's Republic of China on 29 March 1969. On 3 July 1999 she arrived in Australia and on 13 August 1999 lodged an application for a Protection visa (866). 4 The appellant travelled to Australia on a passport that had been issued in Hong Kong on 24 September 1993 in the name of a person other than the appellant. The passport, when used by the appellant to enter Australia, bore a photograph of the appellant. The passport contained an Australian visitor's visa issued in Hong Kong on 2 June 1999. The appellant claimed that the identity in the passport was false. However, it bore her photograph and there was apparently no evidence before the Tribunal that the photograph was a substitution for any other photograph that had previously been sealed into the passport. The passport contained stamps which indicated what the Tribunal described as 'quite an uninterrupted history of travel amongst a number of Asian countries since around 1996: Singapore, Malaysia, Japan, and Thailand'. The passport showed that the holder had travelled to Japan in April 1996 on a visa issued in Hong Kong in March of the same year. 5 On 19 October 1999, a delegate of the Minister refused the appellant's application for a protection visa. Thereupon, the appellant applied to the Refugee Review Tribunal ('the Tribunal') for review of the Minister's delegate's decision. She was extended an invitation to attend a Tribunal hearing, and did so. The relevant hearing took place on 21 March 2000, between midday and 1 pm. On 27 March 2000, the Tribunal decided that the decision of the Minister's delegate not to grant the appellant a protection visa should be affirmed. That decision was handed down on 11 April 2000. 6 It would appear that the appellant approached the Minister on or about 9 May 2000, with a view to securing a decision from the Minister that was more favourable to the appellant than that which had been given by the Tribunal. A document, which was apparently sent to the Minister on or about 9 May 2000, became Exhibit 1 in the proceedings before the learned Federal Magistrate. That document bore an indication at the foot of the three pages, comprising the exhibit, that the first page was 'Page 1', the second page, 'Page 2' and the third page, 'Page 3'. In the middle of Page 1, the communication relevantly began with the words, 'Dear Minister'. Shortly thereafter, the document included 'I therefore sincerely hope that Your Honor the Minister could kindly consider my major claims as follows:'. There were then 14 matters advanced, preceded by bullet points, on pages 1, 2 and 3 of the document. 7 Somewhat curiously, the document did not include any ending that one might have expected in a letter to the Minister. 8 It seems clear that the document which became Exhibit 1 was, itself, incomplete. The document commenced with the words, 'My application for a Protection Visa (Refugee Status) in Australia was finally refused by the Refugee Review Tribunal (RRT)'. The document indicated that it came from the appellant, and was addressed to the then Minister for Immigration and Multicultural Affairs. Plainly, the appellant was aware of the Tribunal's decision by 9 May 2000, although an affidavit was 'sworn (or affirmed)' by the appellant on 31 July 2006, which suggested that she hadn't received the Tribunal's decision until 30 April 2007. 9 At [29] of her reasons for judgement, the learned Federal Magistrate said: '29. The applicant gave oral evidence to this Court concerning when she received the Tribunal decision and her explanation for the delay in her filing the present application for judicial review by this Court, as follows:' Her Honour then proceeded to recite nine matters of evidence preceded by bullet points. Her Honour's reasons for judgment then continued: 'Findings on the applicant's evidence 30. I do not accept the applicant as a witness of truth on these matters. I found her explanation as to why she had waited so long before personally seeking to know the outcome of her review application to the Tribunal to be not only highly implausible but inconsistent with her own evidence that she knew about, and was involved with her migration agent in drafting the s.417 letter to the Minister (the s.417 letter) from which the Court is entitled to infer that she must, ipso facto, have known that her Tribunal application had been unsuccessful. I am satisfied therefore that she knew as early as May 2000 that her application for a review by the Tribunal had been refused and must have had some knowledge of the contents of the decision to be able to be involved in the drafting of the s.417 letter. 31. I further consider that the Court can draw the inference that the applicant knowingly moved premises on at least three occasions and knowingly remained in Australia for over 7 years in order to avoid detection and for the purpose of extending her unlawful stay in Australia. …' 10 Given that the learned Federal Magistrate was not prepared to conclude that the appellant had enjoyed 'actual' notification of the Tribunal decision just because a copy of it had been dispatched to her by post back in 2000, her Honour was not prepared to conclude that she was without jurisdiction to hear and determine the Application for constitutional writ relief which was before her. 11 The application which was filed in the Federal Magistrates Court on 31 July 2007 recorded the grounds of the application in manuscript form as follows: '1. The second respondent has failed to comply with s424A of the Act and thereby comitted (sic) jurisdictional error of law.' 2. Section 424A(1) of the Migration Act imposes a duty on the Tribunal to offer applicant the chance to comment in writting (sic) After the hearing on information relevant to a potentia adver decision on review subject to the exclusions list in s 424A(3). It is clear the RRT did not provide that opportunity.' 12 In the light of the decision of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, it is apparent that there is no substance in the claims made by the appellant in respect of a failure to comply with s 424A of the Act.