BFB15 v Minister for Immigration

[2015] FCCA 3415

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFB15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3415

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Tribunal) – Protection (Class XA) visa – whether the Tribunal exceeded its statutory power – whether the Tribunal properly considered the application – whether the applicant has an adequate explanation for filing the application out of time – whether interests of the administration of justice favour allowing application – application for extension of time dismissed.

Legislation:

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

SZGIZ v Minister for Immigration & Citizenship 212 FCR 235

Applicant: BFB15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1810 of 2015

Judgment of: Judge Street

Hearing date: 18 December 2015

Date of Last Submission: 18 December 2015

Delivered at: Sydney

Delivered on: 18 December 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the First Respondents: Ms C Hillary
DLA Piper

ORDERS

1. The application for extension of time under s.477 of the Migration Act 1958 is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1810 of 2015

BFB15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision the Tribunal made on 26 March 2015 affirming a decision of the delegate not to grant the applicant a protection (class XA) visa. The applicant was found to be a citizen of Indonesia. The applicant arrived in Australia on 29 January 1989 pursuant to a category V10 temporary entrant permit valid until 28 February 1989. On 28 February 1989, the applicant became a unlawful non-citizen.

2. On 6 August 2015, a Registrar of the Court made orders providing an opportunity to the applicant for the filing of an amended application, further affidavit evidence and submissions. No such documents were filed. The Registrar on that date ordered the matter be listed today for hearing.

3. On 1 September 1994, the applicant was detained at a detention facility.  On 25 March 1993, the applicant’s husband lodged an application for a category 816 special permanent entry permit.  On 30 March 1993, the special permanent entry permit was refused.  On 16 April 1993, an application was lodged for protection.  On 13 May 1993, the protection visa application was refused.  On 29 June 1993, a Refugee Review Tribunal affirmed the decision to refuse the protection visa.  On 13 July 1993, the applicant lodged an application for protection including her husband and son as dependants. 

4. On 18 September 1993, that application was refused and was affirmed by the Tribunal on 25 January 1994. On 2 June 1994, the applicant lodged an applicant for special permanent entry permit which was refused on 5 January 1995 and affirmed by an internal review office on 26 April 1996. The applicant made an application for ministerial intervention on 4 June 1996 and the Minister declined to intervene on 25 June 1997 and the applicant became an unlawful non-citizen on 21 January 1997.

5. On 29 March 1999, the applicant was granted a bridging general and subclass 050 visa and became an unlawful citizen on 18 July 2003. The applicant again applied for ministerial intervention on 9 December 2009 which was not granted on 29 November 2010. On 3 March 2011 in response to a notification of outstanding resolution status (subclass 851 visa), an application for that visa was refused and that refusal was affirmed on 12 June 2013. On 12 July 2013, the applicant, again, requested ministerial intervention which was declined on 27 August 2013.

6. On 13 September 2013, the applicant lodged a further application for protection consistent with the decision of the Full Court and the Federal Court in SZGIZ vMinister for Immigration and Citizenship (2013) 212 FCR 235 on the grounds of complementary protection. The delegate refused that second protection visa application on 15 April 2014. The Tribunal sent the applicant a letter on 13 October 2014 inviting the applicant to attend a hearing to give evidence and present arguments on 10 December 2014.

7. The applicant attended on that date to give evidence and present arguments and was assisted by an interpreter. Following the Tribunal’s decision affirming the delegate’s refusal of the protection visa, the applicant wrote to the Minister on 7 April 2015 requesting ministerial intervention. On 18 June 2015, that request for ministerial intervention was declined. The applicant’s application to this Court was filed on 30 June 2015 and under s.477 requires an extension of time. An extension of time generally requires first a satisfactory explanation for the delay and, secondly, a sufficiently arguable case of jurisdictional error to warrant an extension of time in the interests of the administration of justice.

8. The applicant’s explanation for the delay in filing the application to this Court is only identified on the application and is not supported by any other evidence.  The explanation appears to be the pursuit of the ministerial intervention.  Pursuit of ministerial intervention is not a proper ground upon which the delay by the applicant can be explained.  On that ground alone, the Court would refuse the application for an extension of time. 

9. The grounds identified in the application are as follows:

   1. RRT misunderstand my case

   2. I have no one to turn to in Indonesia

   3. My only son is here an Australian citizen

10. The grounds fail to identify any arguable jurisdictional error in relation to the suggestion that the Tribunal failed to understand the applicant’s case. It is apparent that the applicant had a genuine hearing before the Tribunal. The Tribunal identified the applicant’s claims in the protection visa application relating to complementary protection as well as the interview that took place on 8 April 2014 and summarised what occurred at the hearing on 10 December 2015 and made adverse findings in relation to the applicant’s claims.

11. Those adverse findings do not reveal any failure to understand the applicant’s claims and evidence and cannot be said to lack an evident and intelligible justification. From the bar table, the applicant identified the personal circumstances and reasons why she wished to remain in Australia. Nothing said by the applicant identified any basis upon which there could be identified any arguable ground of jurisdictional error. The three grounds in the application fail to identify any sufficient and arguable ground of jurisdictional error to warrant an extension of time under s.477 of the Migration Act 1958 in the interests of the administration of justice. The application for an extension of time under s.477 is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  21 December 2015