Bariah v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 Ms Suriender Bariah and her son Mr Amit Singh Bariah ("the applicants") have filed separate applications in this Court seeking judicial review of a single decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") not to grant the applicants protection visas. I am presently dealing with a notice of objection to competency filed by the Minister. The basis of the objection is that the applicants failed to lodge their applications within 28 days of being notified of the decision of the Tribunal: s 478(1)(b) of the Migration Act 1958 (Cth) ("the Act"). 2 At the hearing of the Minister's notice of objection on 23 August 2000, the applicants appeared in person. Mr Amit Singh Bariah, who speaks some English, made submissions on behalf of himself and his mother. 3 The applicants are citizens of India who arrived in Australia on 6 February 1998. On 2 February 1999, Ms Bariah lodged an application for a protection visa, which included her son, with the Department of Immigration and Multicultural Affairs ("the Department"). On 10 February 1999, the application was refused by a delegate of the Minister. On 4 March 1999 the Tribunal received the application of Ms Bariah seeking review of that decision. The application nominated, as the applicants' adviser, Mr Christopher Muthu, of Chris Muthu & Associates ("the migration agent"). 4 The Tribunal made its decision on 10 September 1999 and sent a letter dated 14 September 1999 to Ms Bariah (and, it appears, a copy to the migration agent) informing them that the Tribunal would hand down its decision on 28 September 1999. At that time the applicants were living in Griffith, and did not attend the Tribunal for the handing down of the decision. The Tribunal sent a letter dated 28 September 1999 to Ms Bariah (and, it appears, a copy to the migration agent) attaching its decision. Both letters to Ms Bariah were sent to a post office box, PO Box 2500 Griffith, that she had earlier notified, by way of change of address, to the Tribunal on 9 September 1999. I return briefly to the decision of the Tribunal in par 12 below. 5 At this stage I should mention a file note, in evidence, of a delegate of the Minister dated 19 November 1999 which states that Ms Bariah's case has been considered under the Ministerial guidelines for stay in Australia on humanitarian grounds. The note concludes that the case does not satisfy the requirements for consideration of the exercise of the Minister's discretion under s 417(1) of the Act. I mention the note because in material filed by the applicants in these proceedings they sought to challenge this decision on various bases. However, this Court does not have the power to review a decision of the Minister not to consider the exercise of the power under s 417(1): see s 475(2)(e) of the Act. 6 At the hearing concerning the competency of this application, Mr Bariah stated that, after receiving the Tribunal's letter and decision, they contacted their migration agent to find out how to apply "on humanitarian grounds" based on what he had understood to be a suggestion from the Tribunal to do so. He stated that the applicants paid the migration agent $500, and the migration agent posted the applicants some forms, which the applicants signed and dated as 1 November 1999. The applicants stated at the hearing that they did not complete any other part of the forms. The applicants then posted the forms back to the migration agent. Mr Bariah stated that he later made several fruitless enquiries of the migration agent about the progress of their application. On 25 May 2000, the applicants were apprehended in Griffith by the Department and detained at Villawood under s 189 of the Act. 7 The migration agent had earlier sent a letter dated 5 April 2000 to the Minister asking that he exercise his discretion under s 48B(1) of the Act. That section empowers the Minister to determine that s 48A(1) of the Act does not apply to prevent the applicants from making a further application for a protection visa. Attached were two forms appointing the migration agent to act for the applicants and a further application for a Refugee (subclass 200) visa, all signed by the applicants and dated 1 November 1999. It may be readily inferred that these were the forms sent to the applicants by the migration agent the previous year, as described in the preceding paragraph. It may also be inferred that, apart from the signatures and the dates, the forms had been completed by the migration agent. 8 In evidence is a file note of a delegate of the Minister dated 28 April 2000 which states that Ms Bariah's request under s 48B has been examined against the relevant guidelines and is considered not to meet them. The Department sent a letter dated 4 May 2000 to the migration agent informing him of this and asking that Ms Bariah contact the Department to discuss her status in Australia. Mr Bariah stated at the hearing that neither he nor his mother were aware that their application had been rejected before they were detained by the Department. 9 Soon after they were detained at Villawood, the applicants lodged applications for Bridging E visas, which were refused by the Department on 30 May 2000. The applicants sought review of that decision before the Migration Review Tribunal, and the decisions not to grant them bridging visas were affirmed by that Tribunal on 8 June 2000. In the written material filed in these proceedings the applicants have submitted that the decision of the Department of 4 May 2000 left unresolved their further application for a protection visa. However, s 48A of the Act prohibits them from lodging that application. 10 On 15 June 2000, the applicants filed their applications to this Court seeking judicial review of the decision of the Tribunal of 28 September 1999. The applications were apparently prepared by the applicants in Villawood without the assistance of their migration agent. Section 478(1) of the Act provides that such an application must be lodged with 28 days of the applicant being notified of the Tribunal's decision and s 478(2) provides that this Court must not make an order having the effect of allowing the applicants to file such an application outside that period. The applicants appear to accept that they received the Tribunal's decision some time in late September or early October 1999. It was the receipt of the decision of the Tribunal that prompted them to contact their migration agent, which appears to have given rise to the events described in pars 6 to 9. In addition, the letter from the migration agent dated 5 April 2000 (noted in par 7) referred to the decision of the Tribunal affirming the delegate's decision. It can be inferred from that letter that the applicants knew of the decision: see the judgment of Weinberg J in Solomon v Minister for Immigration & Multicultural Affairs [2000] FCA 912 at pars 14-16. 11 On any view it is plain the applicants had been notified of the Tribunal's decision well before the 28 days preceding the filing of the applications in this Court. As they have filed their applications to this Court outside the time permitted by s 478(1), their applications must be dismissed as incompetent: as to recent decisions concerning s 478(1)(b), see Orfanou v Minister for Immigration & Multicultural Affairs [2000] FCA 934, Solomon v Minister for Immigration & Multicultural Affairs [2000] FCA 912, Tan v Minister for Immigration & Multicultural Affairs [2000] FCA 815, Oguzhan v Minister for Immigration & Multicultural Affairs [2000] FCA 781, Farajzadh v Minister for Immigration & Multicultural Affairs [2000] FCA 715, Weldt v Minister for Immigration & Multicultural Affairs [2000] FCA 545, Chand v Minister for Immigration & Multicultural Affairs [2000] FCA 428, Kamal Raj v Minister for Immigration & Multicultural Affairs [2000] FCA 74, Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 63. 12 The applicants allege in the written material they have filed, supplemented by statements made by Mr Bariah at the hearing, that they were "misadvised" by their migration agent, in that the request under s 48B had no prospects of success, and was made with unexplained delay. While the circumstances in which the migration agent came to make that request on behalf of the applicants (and why a Refugee (subclass 200) visa was applied for) are not entirely clear, (and the migration agent has not had an opportunity to put his version of events), the allegations are disquieting. This is particularly so because the applicants' claims before the Tribunal might raise a difficult legal issue. The decision of the Tribunal predated that of Branson J in Khawar v Minister for Immigration & Multicultural Affairs [1999] FCA 1529 (5 November 1999) (affirmed recently by a majority of a Full Court in Minister for Immigration & Multicultural Affairs v Khawar [2000] FCA 1130). That case raised for consideration whether the failure by a state to afford protection to members of a particular social group (in that case, "women from Pakistan" or "married women from Pakistan") from maltreatment at the hands of individuals who are not motivated for a Convention reason (in that case, "violent men" or "violent husbands") may constitute persecution "for a Convention reason". In this case, the Tribunal rejected Ms Bariah's claim to be a refugee on the basis that her husband and her older son, though subjecting Ms Bariah and her younger son to verbal and physical abuse over many years of sufficient severity that it amounted to persecution, were not motivated to harm them for a Convention reason. 13 However, given this Court has no jurisdiction to consider the applications, I merely observe that this case serves to highlight the importance of migration agents being competent to advise their clients of their rights under the Act and of agents acting with expedition. What may have constituted a serious dereliction of duty on the part of the migration agent would probably have been apparent, if it be one, to the Department from the correspondence from the migration agent. I inquired of the solicitor appearing for the Minister whether there was any administrative system in place for the Department to notify the Migration Agents Registration Authority of agents' conduct (revealed to the Department from dealings with the Department) that might warrant investigation or consideration: see s 316(1)(b). It appears there may not be. If so, then, in my opinion, such a system may be worthy of consideration given the apparent significance to the operation of the Act of the proper conduct of such agents, reflected in provisions such as ss 290, 309(2), 314, and 316(1)(b)-(g). 14 I order that the applications be dismissed as incompetent. The Minister sought costs, but in the circumstances it is appropriate that there be no order as to costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.