Anf15 v Minister for Immigration

[2015] FCCA 1815

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANF15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1815

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – application for an extension of time – where inordinate delay – where grounds fail to identify any arguable jurisdictional error – application for extension of time dismissed.

PRACTICE AND PROCEDURE – Application for adjournment – where no utility in granting an adjournment if the proceedings are doomed to failure – application refused.

Legislation:

Migration Act 1958 (Cth), ss.476, 477

Applicant: ANF15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1080 of 2015

Judgment of: Judge Street

Hearing date: 30 June 2015

Date of Last Submission: 30 June 2015

Delivered at: Sydney

Delivered on: 30 June 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms B. Griffin
Australian Government Solicitor

ORDERS

1. The application for an extension of time be refused.

2. The applicant pay the first respondent’s costs fixed in the sum of $5000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1080 of 2015

ANF15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 for a Constitutional writ in respect of a decision of the Tribunal made on 21 June 2010 affirming a decision of the delegate not to grant the applicant a Protection (class XA) visa.

2. The application was filed in this Court on 21 April 2015, almost 4 years, 9 months outside the statutory time limit under s.477. An extension of time requires generally, a satisfactory explanation for the delay and identification of sufficiently arguable grounds of jurisdictional error to warrant an extension of time in the interests of the administration of justice.

3. The applicant purported to advance that the explanation for the delay was due to alleged fraudulent conduct by his migration agent.  The applicant also advanced that the delay was due to his mental state and ill health.  The applicant was cross-examined and advanced his explanation that he was awaiting Ministerial action that he thought was being taken as a result of steps of his migration agent.  The applicant acknowledged that by the end of 2014 he was aware that no steps had been taken as a result of the steps of his migration agent.

4. The applicant also advanced that the conduct of the migration agent was the reason why he decided against attending the Refugee Review Tribunal to give evidence.  The applicant was cross-examined on that proposition and conceded that it was not due to the conduct of the migration agent that he decided not to attend the Refugee Review Tribunal.

5. The applicant also acknowledged that the nominated recipient for correspondent was his sister, with whom he was living, and acknowledged receipt of the decision and covering correspondence, dated 21 June 2010 affirming the decision of the delegate refusing to grant the applicant a Protection visa.  That correspondence included an information sheet that relevantly identified available courses open to the applicant from the taking of Court proceedings on the basis that the Tribunal decision was wrong in law or ministerial action.  The applicant acknowledged that he was aware of both those avenues and decided to pursue Ministerial action.

6. Whilst I accept that the applicant has had health problems, and I am prepared to accept that the migration agent gave the applicant advice about pursuing ministerial action, I do not regard that conduct as representing any fraudulent conduct.  The applicant was clearly aware of the alternative avenues that he could pursue and decided not to pursue an application alleging that the decision of the Tribunal was wrong in law.  I do not accept the applicant’s explanation that the conduct of his agent and the pursuit of the avenue of Ministerial intervention or his health as a satisfactory explanation of the delay that has occurred in this case.  The delay is inordinate, and on that ground alone the application or an extension of time should be dismissed.

7. I have, however, taken into account the grounds identified in the application and the submissions of the applicant seeking to restate his claims and fears.  The application fails to identify any arguable jurisdictional error and is an impermissible challenge to the adverse findings of fact made by the Tribunal.  Nothing in the applicant’s submissions identifies any arguable jurisdictional error.

8. The applicant has identified a number of findings of fact by the Tribunal in respect of which he seeks to take issue.  It is very clear that the applicant made a decision himself not to attend the Review Tribunal, and in a letter that bears his signature sent on 10 June it says:

   Following on from my letter of 2 June 2010 and my sister’s telephone discussions held with Shirley on 9 June 2010, I would like to tender this letter as my written submission in support of my protection visa application which is currently under review at the Refugee Tribunal.  I understand that of my own accord I have decided not to attend the hearing, and this is mainly due to my health issues of late, which includes two panic attacks.

9. It is clear that the applicant made a deliberate decision not to attend the Tribunal hearing.  It is clear that the applicant received an invitation to attend the hearing, consistent with the statutory regime.  The applicant was found to be a national of Lebanon and his claims were assessed against that county. It was in these circumstances that the Tribunal identified the applicant’s claims in evidence, including, in particular, the interview on 10 November 2009.

10. The Tribunal noted the applicant’s arrival in Australia on 24 May 2005 as the holder of a sponsored Family Visitor visa, which was valid until 24 August 2009.  It was not until 19 August 2009 that the applicant applied for a Protection visa, which the delegate refused on 17 November 2009.

11. The Tribunal carefully set out the invitations to the applicant to attend the hearing and the Tribunal found that it was not satisfied that the applicant had suffered any persecution in the past or that he had a well-founded fear of facing persecution for any convention reason and was not satisfied the applicant was a person to whom Australia owed a protection obligation.

12. I am satisfied that the adverse findings by the Tribunal were open and that the application fails to disclose any arguable jurisdictional error.  The matter was listed for today for hearing, and the applicant sought an adjournment in order to obtain the benefit of legal input.  There is no utility in granting an adjournment if the proceedings are doomed to failure, as to do so will only utilise limited Court time and increase costs for the parties.  I am clearly satisfied the proceedings are doomed to failure and it was for these reasons that the application for an adjournment was refused.

13. The grounds of the application fail to identify any arguable jurisdictional error sufficient to warrant an extension of time under s.477, even if there had been a satisfactory explanation for the delay. The application for an extension of time is refused.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 1 July 2015