BRGAC of 2009 v Minister for Immigration

[2009] FMCA 1092

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BRGAC of 2009 v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1092

MIGRATION – Challenge to decision of Refugee Review Tribunal – adverse credit finding – whether applicant a member of a particular social group.

MIGRATION – Application to extend time for filing application.

Migration Act 1958, ss.474, 477

SZNOR and the Minister (2009) FMCA 639
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Multicultural Affairs, ex parte Durairajasingham (2000) 168 ALR 407
NADR v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 167

Applicant: BRGAC OF 2009

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 341 of 2009

Judgment of: Wilson FM

Hearing date: 30 October 2009

Date of Last Submission: 30 October 2009

Delivered at: Cairns

Delivered on: 30 October 2009

REPRESENTATION

Counsel for the Applicant: N/A

The Applicant: In person

Counsel for the Respondent: N/A

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the Application in a Case filed by leave on 30 October 2009 be dismissed.

2. That the application for an extension of time to file the application BRG341/2009 be refused.

3. That application BRG341/2009 be dismissed.

4. That the applicant pay the respondents’ costs of and incidental to the application fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CAIRNS

BRG 341 of 2009

BRGAC OF 2009

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks to challenge the decision of the Refugee Review Tribunal handed down on 14 Aril 2009, by which the Tribunal affirmed a decision of the Minister’s delegate not to grant the applicant a protection (class XA) visa. The application seeking judicial review of that decision was filed on 26 May 2009. Section 477(1) of the Migration Act 1958 requires that an application such as that filed by the applicant be made to the court within 35 days of the date of the decision.

2. As I have said, that decision was handed down on 14 April 2009.  Accordingly, the application for review ought to have been filed by 19 May 2009.  It was in fact filed on 26 May 2009.  The applicant therefore requires an extension of time within which to bring his application. 

3. The court is given a discretion by s.477(2) Migration Act to extend the time for bringing the application, if certain matters are satisfied.  The primary matter to be satisfied in this case is whether or not it is necessary in the interests of the administration of justice to make an order extending time for a period of, in effect, seven days. 

4. The respondent has set out in its written outline of argument the factors that have been distilled from the cases that should be taken into account in deciding whether or not to give an extension of time.  Reference is made in particular to the decision of Scarlett FM in SZNOR and the Minister (2009) FMCA 639 and to a number of other decisions referred to therein.

5. As is commonplace when courts are invested with a discretion to extend time, regard is had to any reason for the delay, the extent of the delay, any prejudice to the other party to the litigation, and the underlying merits of the substantive application.  It would be a rare case indeed where there was a meritorious underlying application and prejudice was not occasioned to a respondent, where the court would not extend time.  I therefore propose, in this case, to consider, first, the merits of the application, and then return to the question as to whether there should be an extension of time.

6. The applicant, who is a citizen of Canada, seeks a protection visa. The grounds on which such a visa can be granted are set out in the reasons of the Tribunal at paragraphs [4] to [16]. It is not contended that there is any error in that recitation. The decision of the Tribunal is a privative clause decision: see s.474 Migration Act.  That has important ramifications for the present applicant. 

7. Because the Tribunal’s decision is a privative clause decision, it can only be reviewed if the applicant demonstrates what is described as jurisdictional error.  That concept has been discussed in many cases, but is most conveniently set out in a joint judgment of Justices of the High Court in Craig v State of South Australia (1995) 184 CLR 163, where their Honours described jurisdictional error as being one which causes the Tribunal to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material, or, at least in some circumstances, to make an erroneous finding or reach a mistake in conclusion, and the Tribunal’s exercise or purported exercise of power is thereby affected such that it exceeds its authority or powers.

8. In that same decision, and in decisions which have followed it, such as Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323 at 82, it is not to the point to ask whether the Tribunal’s factual conclusions were right; the relevant question is about the Tribunal’s processes, not its actual decision. The applicant has, if I may say so, made an impassioned plea for assistance from this court. That plea for assistance arises from the facts which the applicant says caused him and his partner to leave Canada and travel to Australia. Those facts are accurately set out at paragraphs [18] to [40] of the reasons of the Tribunal.

9. Apart from some matters of embellishment and, in one case, clarification, the applicant did not identify any substantive error in the recitation of facts made by the Tribunal.  The Tribunal then, at paragraphs [48] to [55] of its decision, having recited those facts, analysed them and concluded, first, at paragraph [50], that it had reservations about the applicant’s claim, and then at paragraph [53], rejected the applicant’s case that he ever was or currently is of adverse interest to the Mexican authorities. 

10. The Tribunal is the decision-maker of fact.  The role of fact-finding is not one for the court on a judicial review application such as the present.  Making findings on facts and credibility is the function of the tribunal member: see Minister for Immigration and Multicultural Affairs, ex parte Durairajasingham (2000) 168 ALR 407 at 67, and NADR v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 167 at 9.

11. In this case, it is not said that the Tribunal has made any wrong finding of fact.  It is said that the Tribunal ought not to have rejected the applicant’s version of events that he said gives rise to his well-founded fear of persecution.  There is no basis for this court to set aside that determination of the Tribunal, where no error has been demonstrated in the way the Tribunal went about its task.

12. A second difficulty that confronts the applicant is this:  even if the Tribunal had accepted that the applicant had a well-founded fear of persecution and could not return to Canada, he still had to satisfy the definition of being a refugee.  That definition is set out at paragraph [7] of the Tribunal’s decision.  The applicant contends that he satisfies the definition by being a member of a particular social group, being an associate of his girlfriend, who was being pursued by the Mexican authorities.  The Tribunal has not made a determination about whether that is sufficient to constitute a particular social group as that term is defined or commonly understood. 

13. In my view, there must be serious doubts about that matter, such that even if the Tribunal had accepted the applicant’s version of events, whether he would necessarily have succeeded before the Tribunal.  But as I have said, the Tribunal primarily decided the matter by making findings at paragraphs [53] and [55] that it did not accept the applicant’s claim.

14. The grounds of the application set out in the application filed on 26 May 2009 are a little difficult to follow and, for that reason, the court gave the applicant the indulgence of presenting his case at length before it.  The applicant, although somewhat discursive in his presentation, which is understandable for a lay litigant, made reference repeatedly to the facts of the matter and to the poor advice that he contends he was given by a migration agent in Australia.  It seems that the application for a protection visa was not the initial application that was made by the applicant but was made after he and his partner had been refused other visas applied for.

15. None of the grounds of application set out in the initiating document would constitute jurisdictional error.  Nothing that the applicant has said to the court demonstrates jurisdictional error.  The applicant submitted, towards the end of his oral presentation, that there had been a discussion with the Tribunal member for approximately 45 minutes that was held “off the record”.

16. Putting to one side the fact that there is no evidence of this occurring, which would be reason in itself to reject it, the applicant then made the submission, entirely unsupported by any evidence, that this entitled the court to conclude that the Tribunal member was acting at the dictation of the Minister because of some perceived military or intelligence cooperation between Australia and Canada.  I reject entirely that assertion.

17. I conclude, therefore, that the applicant has not demonstrated any prospect of success in his application to challenge the decision of the Tribunal. 

18. I return to the application for an extension of time.  The applicant’s delay, he says, was explained, at least in part, by him being required to present a case in the Supreme Court of Queensland at Cairns against his former landlord.  There is no evidence of this but, accepting it to be true, it does not explain why a document could not have been prepared and filed within the 35 day period stipulated by the legislation.  The applicant was not required to present his case to this court but simply to initiate the proceedings within 35 days.

19. The applicant also said that he did not receive the decision of the Tribunal on 14 April 2009.  So much may be accepted because it would have had to be sent my mail from the Tribunal to the applicant’s post office address.  However, the applicant accepted that he would have received it within the 35 days allocated under the legislation and any delay in the postal service, although it was not quantified, does not provide a reason for the document not being filed on time.

20. In the application again the grounds for an extension of time are set out.  None of them seem to be relevant to why an application to challenge the decision of the Refugee Review Tribunal was not made.  In my view, there has been no satisfactory explanation for the delay.  The delay is, admittedly, short and the respondent is not prejudiced if the substantive application is allowed to proceed.  Refusing to deal with the application is, of course, a serious matter for the applicant but that is, of course, primarily dependent upon a view to be taken of the merits of the underlying application.

21. Primarily because I conclude that the application to challenge the decision of the Tribunal has no prospects of success and would have been refused if made within time, I refuse the application for an extension of time. 

22. I must deal with one further matter.  Today the applicant filed an application in a case by leave.  That application sought injunctive relief under four heads.  The application is misconceived.  This court cannot direct the first respondent to grant a protection visa.  At best for the applicant, it can direct that the Tribunal consider the matter properly according to law.  There is no mandate in the legislation that the applicant can be compensated as sought in paragraph 3 of the application in a case.  The court lacks jurisdiction to make such an order and the same observations can be made with respect to paragraph 4.

23. There is no justification for making an adverse order for costs against the respondents if the applicant’s primary application is unsuccessful.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Wilson FM

Associate:  Lynnette Chin

Date:  6 November 2009