Ajaz v Minister for Immigration & Border Protection

[2014] FCCA 894

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJAZ v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 894

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether time should be extended to applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of the administration of justice to extend time – application for extension of time refused.

Legislation:
Migration Act 1958 (Cth) ss.417, 477

M211of 2003 v Refugee Review Tribunal [2004] FCAFC 293
Daniel v Minister for Citizenship and Multicultural Affairs [2004] FCA 21

Applicant: AHMED RIYAZ AJAZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1001 of 2014

Judgment of: Judge Emmett

Hearing date: 5 May 2014

Date of Last Submission: 5 May 2014

Delivered at: Sydney

Delivered on: 5 May 2014

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter

Solicitors for the Respondent:

Ms Blake

(Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1001 of 2014

AHMED RIYAZ AJAZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) brought by the applicant in circumstances where his application for judicial review, filed 11 April 2014 was filed some 135 days from the date of the Migration Review Tribunal in respect of which the applicant seeks judicial review

2. The Migration Review Tribunal (“the MRT”) decision is dated 20 September 2014. The applicant’s application for judicial review of the MRT’s decision was filed on 11 April 2014. In the circumstances, the application to this Court was filed in excess of the 35 day time limit provided for in s.477(1) of the Act.

3. However, pursuant to s.477(2) of the Act, the Court may extend the 35 day period if, inter alia, the Court is satisfied that it is necessary in the interests of the administration of justice to make the order. The first respondent opposes time being extended to the applicant.

4. In support of his application, the applicant had little to say. In his application for judicial review, filed 11 April 2014, the applicant stated that his ground was as follows:

   “The Migration Tribunal overlooked my compelling circumstances especially that, as a result of my serious depression, I was not able to continue my studies.”

5. In relation to the applicant’s application for an extension of time, the applicant expressed his grounds as follows:

   “When my application was refused on 20 September 2013 my agent John Leslie Barratt of Visasaustralianz wrote to the Minister on 17 October 2013 and a reply arrived from the Minister recently. I was not aware of my rights to apply to the Court at the time of the Migration Review Tribunal. Now the Department wants me to make arrangements to depart Australia.”

6. At today’s hearing, the applicant was unrepresented before me, although had the assistance of an interpreter. I explained to the applicant that in considering whether or not time should be extended to him to bring his application, the particular matters that the Court would have regard to are his explanation for his delay and whether or not the grounds of his application raise an arguable case for the relief claimed.

7. I invited the applicant to give evidence on his behalf in relation to his explanation which the applicant declined. The applicant said that he did not understand what he needed to do or say. However, as I explained to the applicant, all the Court can do is give the applicant an opportunity to say whatever he wishes in support of his application. The applicant declined to say anything further.

8. The first respondent’s solicitor, Ms Blake, read the affidavit of the applicant, affirmed and filed on 11 April 2014. That affidavit annexes a copy of the MRT’s decision record and a letter by the applicant to the first respondent seeking ministerial intervention.

9. It is well established that an applicant’s conduct in seeking ministerial intervention under s.417 of the Act is indicative of a decision by the applicant to abandon a course that would seek to challenge the decision of the MRT on grounds that he otherwise have been available under the Act (see: M211of 2003 v Refugee Review Tribunal [2004] FCAFC 293 and Daniel v Minister for Citizenship and Multicultural Affairs [2004] FCA 21).

10. In the circumstances, the applicant’s explanation for his delay in filing his application for judicial review of the MRT’s decision, dated 20 September 2013, is not satisfactory.

11. In relation to whether the grounds of the applicant’s application raise an arguable case for the relief claimed, Ms Blake referred the Court to two paragraphs in the MRT’s decision, being paragraphs 23 and 30. Those paragraphs made clear that the MRT was aware that the applicant had said that he was suffering from depression but that no corroborative evidence was provided to the MRT in support of that assertion.

12. In the circumstances I am not satisfied that the grounds of the applicant’s application for judicial review raise an arguable case.

13. Accordingly I am not persuaded that it is in the interests of the administration of justice that time be extended to the applicant to bring his application. There is a public interest in ensuring that administrative decisions are final and are at an end. The applicant had his rights to pursue judicial review within the relevant statutory time limit. He chose not to do so.

14. Accordingly, the application filed on 11 April 2014 seeking that time be extended to the applicant to apply for judicial review of a decision of the MRT, dated 20 September 2014, is refused.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Emmett.

Associate: 

Date:  15 May 2014