AZADW v Minister for Immigration
[2014] FCCA 1024
•12 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZADW v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1024 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – application for extension of time to make application – where applicant aware at time of decision of time limit for making application for judicial review – where applicant unable to obtain legal representation – where applicant assisted by community group – whether jurisdictional error – whether to grant extension of time to make application – some reflections on the role of community groups. |
| Legislation: Migration Act 1958 (Cth) ss.36(2)(aa) 65, 422B, 425, 477 |
| Cases cited: NARE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 554, SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1192 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 Craig v South Australia (1995) 184 CLR 163 SCAA v Minister [2002] FCA 668 SZHVL v Minister for Immigration and Citizenship [2008] FCA 356 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 |
| Applicant: | AZADW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 226 of 2013 |
| Judgment of: | Judge Raphael |
| Hearing date: | 12 May 2014 |
| Date of Last Submission: | 12 May 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 12 May 2014 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr S McDonald |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application for extension of time refused.
Applicant to pay the First Respondent’s costs in the sum of $5,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 226 of 2013
| AZADW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a young Tamil male from Sri Lanka who arrived in Australia around 17 May 2012 as an undocumented boat arrival. On 14 September 2012 he applied for a Protection (Class XD) visa under s.65 of the Migration Act1958 (Cth).[1] On 3 January 2013 a delegate of the Minister refused to grant a protection visa and the applicant applied for review of that decision from the Refugee Review Tribunal. He appeared before the Tribunal on 5 April 2013 to give evidence and present argument in support of his claim. He was represented by a firm of migration agents. On 23 April 2013 the Tribunal determined that it would affirm the decision under review.
[1] The ‘Act’.
Section 477 of the Act sets out time limits on applications to this Court for review of decisions of the Refugee Review Tribunal. Section 477(1) requires that such an application be made within 35 days of the date of the migration decision. But subsection (2) allows the Court to extend that period provided that an application for an order has been in writing to the Court specifying why the applicant considers it necessary, in the interests of the administration of justice, to make the order and the Court is so satisfied. In this particular case the applicant was some 62 days out of time in making his application to the Court. He made an application in writing to extend the time and stated that his English proficiency was poor and he didn’t know that he had to apply for judicial review within 35 days.
However, in response to questions from the Court he confirmed that when he was told about the decision by his migration agents, who are also solicitors, he was told about the 35-day time limit. In his application the applicant says that he could not get a lawyer to fill in the forms and that although he is aware he was late by a few days, he was very sorry about it and asked the Court to accept the application. It appears that the applicant made contact with a Tamil community group in Adelaide who helped him prepare his application to the Court, including the presentation of those reasons. It also assisted him by providing him with grounds of application. These read:
“1. That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.
2. More details will be provided by the legal representative.”
It is well that persons coming to this country from other countries, who do not speak English and who are not familiar with the complex legal system that exists, have the benefit of assistance from community groups. What is perhaps unfortunate is that sometimes these community groups see themselves as being responsible only to their fellow countrymen rather than to Australian society as a whole. As a result, they are prepared to assist a person such as this applicant – and an applicant who came before me this morning – when, if they gave the matter proper and serious consideration, they would realise that there really was very little that anyone could do for him. This is because an application to this Court is an application for judicial review. It is not an application for a rehearing of the Refugee Review Tribunal’s decision.
In order to be successful in this Court and have a matter remitted to the Refugee Review Tribunal, an applicant must point to some jurisdictional error. A jurisdictional error is a complex concept but it can be identified, and has been identified by Justices of the Federal Court,[2] as a failure by the Tribunal to provide an applicant with procedural fairness so that he did not get the hearing that he was entitled to under s.425 of the Act: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [31]-[32]. This failure can be in the form of not complying with the provisions of s.422B of the Act which sets out an exhaustive statement of the natural justice hearing rule in these matters. Another way in which the Tribunal may fall into jurisdictional error is by not considering a relevant matter or by considering an irrelevant one: Craig v South Australia (1995) 184 CLR 163. A Tribunal would fall into jurisdictional error if it is biased or has the appearance of bias: SCAA v Minister [2002] FCA 668, SZHVL v Minister for Immigration and Citizenship [2008] FCA 356, Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.
[2] NARE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 554, SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1192.
The present application shows no indication that any of the matters referred to above were present in the Tribunal’s decision and the Court has read it and confirmed that this is the case. This applicant was allowed to come to a hearing at which he was represented and at which he gave evidence and presented arguments. Those matters which the Tribunal was required to put to him because the Tribunal felt that they may constitute a reason or part of the reasons for coming to the decision that it did were put. The Tribunal provided the applicant with a reasoned decision.
What, with respect, the community organisation should have done was to tell this applicant that in coming to the Court he was wasting the Court’s time and was going to make himself liable for costs in a sum that he would be unable to pay. It should have told him that utilising a Court proceeding for the purposes of remaining in this country for longer than otherwise would have occurred is not an appropriate way to use the Courts. It should have counselled him about returning to his home country and how he should best conduct himself when he arrived there. That is what a good communal organisation should have done, and it is hoped that communal organisations will do that in the future.
Nothing I have heard from the applicant today provides me with any reason that I could properly grant an extension of time for the application. I do not feel it is really necessary for me to set out at length the nature of the claims made by the applicant and the manner in which the Tribunal dismissed them. Suffice to say that it considered both his particular and his generic claims. It considered them under both the Convention grounds and the grounds of complementary protection under s.36(2)(aa). It came to a decision about his specific claims that it could not accept all of his evidence and that is a decision for the Tribunal par excellence. There is nothing the Court can do to upset such a decision provided that it is clearly come to on the basis of admissible evidence. That it was. The Tribunal utilised available independent country information to reject the applicant’s generic claims. The application grounds do not articulate either a basis for excusing the delay in making the application or a possible jurisdictional error.
In the above circumstances the Court must make an order refusing to grant an extension of time for the filing of this application. The applicant must pay the first respondent’s costs to be assessed in the sum of $5,800.00.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Raphael
Associate:
Date: 20 May 2014
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