SZMVG v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 The applicant, a citizen of India, commenced this proceeding on 28 October 2008 seeking leave to appeal from a judgment of the Federal Magistrates Court of Australia, given on 24 October 2008. The application was supported by the applicant's affidavit of 28 October 2008. 2 The applicant had received a notice that it was intended that he be removed from Australia on 29 October 2008. On 28 October 2008, I made an order restraining the first respondent (Minister) from removing the applicant or causing his removal until 5.00 pm today. 3 The application was made returnable before me at 9.00 am this morning. At that time, I ordered that the second respondent (Tribunal) be joined as a party. 4 It is common ground that even if I should be persuaded that a ground for the granting of relief (in this case, leave to appeal) is made out, I have a discretion whether to grant relief: see Minister for Immigration and Citizenship v SZIQB [2008] FCAFC 20 (SZIQB). 5 The learned Federal Magistrate dismissed the applicant's application for review of a decision of the Tribunal dated 14 May 1999 without hearing it on the merits because she held that the application had been filed outside the time limit allowed by s 477 of the Migration Act 1958 (Cth) (the Act). This was on the basis that the applicant had received in October 2005 a copy of the Tribunal's Decision and Reasons for Decision as part of documents supplied to him pursuant to a request made by him under the Freedom of Information Act 1982 (Cth) (FOI Act). I elaborate on this request and the applicant's receipt of documents at [30] below. Her Honour noted that this was actual receipt by the applicant of the Decision and Reasons for Decision and she considered that in accordance with a decision of the Full Court of this Court in SZKNX v Minister for Immigration and Citizenship [2008] FCAFC 176 (SZKNX), there had been an actual notification to him of the Tribunal's decision for the purposes of s 477 of the Act. 6 Item 42 of Schedule 1 to the Migration Litigation Reform Act 2005 (Cth) provides that where proceedings are commenced after 1 December 2005 in relation to a "migration decision" made before that date, and an applicant is notified of that decision prior to 1 December 2005, he or she is deemed to have been actually notified of it on 1 December 2005. The result is that the time limits contemplated by s 477 begin in such a case to run from 1 December 2005. Under s 477(1), an application to the Federal Magistrates Court for a remedy to be granted under s 476 in relation to a "migration decision" must be made within 28 days: …of the actual (as opposed to deemed) notification of the decision. However, under s 477(2), the Federal Magistrates Court may extend that 28 day period by up to 56 days if an application for the extension is made within 84 days of the: …actual (as opposed to deemed) notification of the decision. and the Court is satisfied that it is in the interests of the administration of justice to grant the extension. 7 The 84 day period from 1 December 2005 expired long before the applicant commenced his proceeding in the Federal Magistrates Court on 9 October 2008. 8 It is common ground that, provided the applicant's receipt of the copy of the Decision and Reasons for Decision as part of the documentation provided to him pursuant to his request under the FOI Act is correctly to be regarded as "actual (as opposed to deemed) notification of the decision", he was well out of time and the Federal Magistrate had no alternative but to dismiss his application as incompetent. 9 What is put for the applicant on this point, however, is that mere receipt of a copy of the Decision and Reasons for Decision as part of documents supplied to him pursuant to his request under he FOI Act, is not an actual notification of the decision for the purposes of s 477. (Apparently this argument was not put to the learned Federal Magistrate.) 10 The Minister relies in particular on the Full Court's decision in SZKNX at [25], which states, inter alia: Irrespective of how the Tribunal has complied with its obligation under s 430(2), if an applicant has physically received a copy of the Tribunal's decision and reasons, as has happened in the present case, there has been actual notification of the decision for the purposes of s 477. 11 Mr Ower, of counsel for the applicant, submits that that statement was obiter dicta and went further than was required for the decision in SZKNX, because in that case there was a finding that the Tribunal had in fact supplied to the applicant a letter and enclosed Decision and Reasons for Decision document. Mr Ower relies on certain statements made by the Full Court in Minister for Immigration and Citizenship v SZKKC (2007) 241 ALR 523 (SZKKC) at [26] to [28] to the effect that for the purposes of s 477 there must be a handing to an applicant of the written statement required by s 430(1) of the Act. 12 Mr Markus, the solicitor for the Minister, submits that any statements in SZKKC that might be said to be inconsistent with para [25] in SZKNX are themselves obiter dicta. 13 I do not find it necessary to explore the interesting competing submissions on the issue raised. The reason is that in my opinion, on discretionary grounds the applicant should not have leave to appeal. 14 The learned Federal Magistrate did not find it necessary to address the question of the discretion, although detailed submissions were made to her on discretion. 15 Before the Federal Magistrates Court it was accepted by the Minister that the Tribunal's decision was affected by jurisdictional error, being a failure to fix a time and place for the hearing of the review and to give the applicant notice that he was entitled to appear on that hearing to give evidence: see Xie v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 543. However, SZIQB makes it clear that this does not signify that the matter must be remitted to the Tribunal. Whether it should be remains a question of discretion. 16 In dealing with the question of discretion, I need to note the factual background in some detail. 17 The applicant arrived in Australia on 30 April 1995 on a Sub-class 560 (Student) visa which was valid until 10 May 1997. 18 On 9 May 1997, the day before that visa expired, the applicant applied for a protection visa. 19 On 22 September 1997 the application for the protection visa was refused by a delegate of the Minister (then called the Minister for Immigration and Multicultural Affairs). 20 On 24 October 1997 the applicant applied to the Tribunal for review of the delegate's decision. He had a migration agent assisting him at that time in the preparation of the form of application. 21 There has been considerable discussion of the events of early 1999 in connection with the proceeding before the Tribunal. 22 On 26 February 1999 the Tribunal wrote to the applicant advising that the Tribunal was not prepared to make a favourable decision on the material before it relating to the application. The letter advised the applicant that he was entitled to come to a hearing of the Tribunal to give oral evidence in support of his claims, and invited the applicant to indicate whether he wished to do so. The letter was addressed to the applicant at his then residential address and a copy was sent to his agent. The copy that had been sent to him at his residential address was returned to the Tribunal by the postal authorities. 23 On 23 March 1999 the applicant telephoned the Tribunal. In evidence before the Federal Magistrate he denied that his agent had given him a copy of the Tribunal's letter before he made the call. In effect, he said that he telephoned the Tribunal entirely on his own initiative. He told the Tribunal that he wished to attend a hearing and would return the Tribunal's form (which was enclosed with the Tribunal's letter of 26 February 1999) with his new residential address inserted in it. In fact he never did so. 24 It was the applicant's failure to advise the Tribunal of his address from time to time that has placed him in the position of not receiving communications from the Tribunal. It may be that at this early stage the applicant had not formed a view that he expressed in para 6 of his affidavit of 21 October 2008 filed in the Federal Magistrates Court, but it is useful to note what he said in that paragraph at this point: I was still fearful to return to India but I was concerned that if I approached the authorities here that I would be detained and returned. I do not suggest that he was regarding the Tribunal as early as 23 March 1999 as one of the "authorities" but it is fairly clear that at some time he thought that his interests were best served by not informing anyone in authority of his address. 25 On 15 April 1999 the Tribunal forwarded a further letter addressed to the applicant at his last advised residential address. The Tribunal referred to its earlier letter of 26 February 1999. The letter noted that that earlier letter had been addressed to the applicant at his residential address which was the address advised in his application to the Tribunal, as well as to his agent. The letter also referred to the applicant's telephone call of 23 March 1999 stating that he wished to attend a hearing, that he was no longer represented, and that he would return the form together with advice of his new address. The letter noted that the Tribunal had received nothing from him. The Tribunal's letter enclosed a further "Response to Hearing Offer" form and advised that it must be returned to the Tribunal by Wednesday 28 April 1999. 26 Again the letter which had been addressed to the applicant at his residential address was returned to the Tribunal by the postal authorities. 27 On 14 May 1999 the Tribunal wrote to the applicant care of his agent with a copy of the letter addressed to the agent enclosing a copy of the Tribunal's Decision and Reasons for Decision. The applicant's evidence before the Federal Magistrate was that he did not receive those documents at that time. 28 On 18 June 1999 the applicant's bridging visa expired and he became an unlawful citizen. On 1 July 1999 the applicant or someone on his behalf made an application to the then Minister requesting consideration of his case under s 417 of the Act. The applicant or the person who made that application on his behalf must have been aware that the Tribunal's decision had been adverse to him since the basis of a request under s 417 is that what is requested is a decision more favourable to an applicant than that given by the Tribunal. On 13 October 1999 the Minister decided to decline to consider the s 417 application and on 26 October 1999 the Department notified the applicant of that decision by the Minister. 29 On 16 August 2005 the applicant was taken into detention where he has remained since. He had been surviving by working as "a taxi driver for various cab companies and renting accommodation in a variety of suburbs". 30 On 29 September 2005 the applicant made an application to the then Department of Immigration and Multicultural Affairs (Department) under the FOI Act. On 30 September 2005, the Department wrote to the applicant explaining that his request had been transferred to the Tribunal. On 5 October 2005, the Tribunal wrote to the applicant advising that it had decided to release the documents relevant to his request, being folios 1 to 47 on the Department Tribunal file N97/19973, file cover, and 4 pages of screen copies from the Tribunal's computerised Case Management System. 31 It is common ground that in October 2005 the applicant received documents which included a copy of the Decision and Reasons for Decision of the Tribunal. Accordingly, from that time the applicant was aware, not just that his application to the Tribunal had failed, but also of the reasons for the failure. 32 It was put by counsel for the applicant that the mere fact that the Decision and Reasons for Decision were included in the documents provided should not be taken as an indication that the covering letter from the Tribunal, advising of a right to apply to the Federal Magistrates Court for review, was also provided. I think that the probability is that the file would have included a copy of the Tribunal's letter. There is no doubt that a letter to the applicant enclosing a copy of the Decision and Reasons for Decision was, in fact, written. However, I do not think that anything turns on whether the documents provided to the applicant did include that letter. 33 On 7 May 2008, the applicant made a further request under s 417 of the Act and on 19 July 2008 the Minister declined to consider the exercise of power under that section. On 24 July 2008 a letter was written to the applicant notifying him of that decision of the Minister. 34 On 15 September 2008 a standard form letter was written by the Department (by this time known as the Department of Immigration and Citizenship) to the applicant advising him of the intention that he be removed from Australia. On 7 October 2008 he was given a notice under s 198(6) of the Act of the intention that he would be removed on 10 October 2008. 35 As I mentioned earlier, he commenced the proceeding in the Federal Magistrates Court on 9 October 2008. 36 In the course of the hearing before the Federal Magistrates Court the applicant was cross-examined. He agreed that he had known in 1999 that the Minister was not prepared to substitute a decision in his favour for that of the Tribunal. The explanation that he gave for not contacting the authorities was that he had been advised by his migration agent that it was best not to do so. He also denied the proposition that he learned from contact with other people in the Villawood Immigration Detention Centre that it was possible to apply to the Federal Magistrates Court for relief. In summary, the picture that the applicant attempted to portray was that he was without advice, except bad advice. 37 I simply do not accept that for the long period of time that the applicant has been in Australia he has been in the dark as to the possibility of applying to a court for relief because of something said to him by his former migration agent. He was in Australia for some 10 years prior to his being taken into detention on 16 August 2005 and has been in detention for the period of a little over three years since then. He would have it accepted that it first occurred to him to make an approach to the Federal Magistrates Court when he was served with the notice under s 198(6) of the Act on 7 October 2008. In my opinion the applicant has not satisfactorily explained his failure to approach the Federal Magistrates Court, or any other court, at an earlier point of time. 38 In SZIQB, the Full Court stated (at [30]): We 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. It is true that the facts of SZIQB are not on all fours with those of the present case, although it should be noted that those of the present case are, in some respects, more adverse to the applicant than were those in SZIQB. Generally speaking, however, the thrust of what the Full Court said is applicable to the position of the present applicant. 39 It should also be noted that the fact that a migration agent advises his or her client not to contact the authorities is not the end of the matter. One can well imagine a situation in which a migration agent might explain that the person's prospects of success before a court are slim and that if a court proceeding fails, the person is likely to be deported. Perhaps the agent might advise that the person might just as well hope that he is not located and taken into detention. One can imagine that in these circumstances the person might decide that it would be the best course for him or her simply to be "lost" in the community and not to seek relief from any court. While it is true in such a case to say that the applicant acts on advice, he or she is taking a calculated risk and making the best of the position in the light of the adverse advice as to prospects. In such circumstances, the fact that the person has acted on the advice of the migration agent is not, without more, a satisfactory explanation for the delay in approaching a court for relief. 40 For the above reasons, the application for leave to appeal should be dismissed with costs. I express my thanks to Mr Ower (who appeared pro bono) and Mr Markus for their assistance. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.