BZAAJ v Minister for Immigration
[2010] FMCA 894
•17 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BZAAJ v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 894 |
| MIGRATION – Application for leave to extend time pursuant to s.477 Migration Act 1958 – principles to be applied – absence of explanation – poor prospects of principal application. |
| Migration Act 1958 |
| Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Parker v The Queen [2002] FCAFC 133 SZCOZ v Minister for Immigration and Citizenship [2007] FCA 641 SZGBP v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2006] FCA 587 Willoughby & Ors v Clayton Utz (2007) WASCA 5 |
| Applicant: | BZAAJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 806 of 2010 |
| Judgment of: | Burnett FM |
| Hearing date: | 27 October 2010 |
| Date of Last Submission: | 27 October 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 17 November 2010 |
REPRESENTATION
| There was no appearance by or on behalf of the Applicant |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Application dismissed.
Subject to any application being made within seven (7) days of today’s date, direct the applicant pay the respondent’s costs of and incidental to the application to be assessed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 806 of 2010
| BZAAJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Vietnam. He arrived in Australia on 12 March 2009. On 18 May 2009 he applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. The delegate refused his application on 10 August 2009 and he was notified of his rights by letter dated the same date.
On 25 August 2009 the applicant applied to the Tribunal for review of the delegate’s decision. The Tribunal conducted a review hearing on 1 and 26 October 2009. On 26 March 2010 the Tribunal delivered its decision refusing the applicant’s application.
Instead of making application for judicial review within the 35 days permitted by s.477 of the Migration Act 1958 (the Act) the applicant applied for ministerial intervention. The due date for judicial review was 3 May 2010. He had made his request for ministerial intervention on 1 April 2010. On 13 April 2010 he received an acknowledgement of his request. On 13 July 2010 the applicant received a response from the Minister advising that it would not be in the public interest for the Minister to intervene and his request was refused. Accordingly, on 6 August 2010 he made application to this Court for judicial review.
As the applicant’s application is outside the time permitted by s.477 of the Act. He now seeks an extension of time within which to prosecute his application.
Upon the initial return of the application, the application for an extension of time was listed for discrete hearing as a preliminary matter. Upon the return of the application on 27 October 2010 the applicant failed to appear. I am satisfied that he was aware of the return date of the application as he had appeared on the first court date when the preliminary hearing was listed. It is appropriate that I proceed to determine the application as I am permitted to do by r 13.03A Federal Magistrates Court Rules.
As the application was not filed until 6 August 2010, it is incompetent unless the court extends time pursuant to s.477(2). The Court only has power to do this if it “is satisfied that it is necessary in the interests of the administration of justice to make the order”.
In SZNZI v Minister for Immigration and Citizenship [2010] FMCA 57 Smith FM at [11] when considering the court’s power to extend time stated:
“The considerations which might bear on that discretion are unconfined. As with other powers to extend time and to waive defaults in relation to court procedures, two ‘critical’ considerations are: “(1) that an explanation, reasonable to the circumstances, is provided for the party’s absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order” (see Kirby J in Allesch v Maunz (2000) 203 CLR 172 at [48]). Other considerations may come into play, including in my opinion, the implications of the appeals structure and alternative judicial review avenues (see Yu v Minister for Immigration & Anor [2009] FMCA 1161 at [40]‑[41]). None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two ‘critical’ considerations (see Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506 and 510). When reaching its ultimate conclusion, the Court must weight all of the relevant circumstances together by reference to the statutory criterion provided in s.477(2)(b), quoted above.”
Other factors that might also be considered relevant in the current context include matters identified in SZNOR v Minister for Immigration and Anor [2009] FMCA 639 which identified additional matters to those in SZNZI to include:
a)whether or not an application has been made in writing to the court specifying why an extension is necessary in the interests of the administration of justice;
b)the extent of the delay; and
c)a consideration of both sides of litigation, including the effect on the applicant if the application is not granted and the effect on the respondent or the detriment to be suffered by the respondent if the application is granted.
Reasonable Explanation for delay
In his initiating application, the applicant applied for an order that the time for making the application be extended under s.477 of the Act. The grounds for his application for extension are that he has not been granted natural justice in that the evidence provided to the Tribunal was not properly considered by the member.
In an affidavit filed 6 August 2010 his application was supplemented by additional reasons, namely:
a)financial restraints rendering him unable to afford to file an appeal in the court, he not being aware of the fee waiver option;
b)his decision to ask the Minister to grant a ministerial intervention as opposed to lodging an appeal; and
c)information provided to him by his migration agent of both options with he choosing the ministerial intervention option rather than the appeal option as the preferred initial course of action.
The first ground identified by the applicant in his application goes to the merits of the application itself and of itself does not afford any reasonable explanation for delay. Concerning the other grounds advanced, the applicant’s impecuniosity does not afford a ground. For instance, in respect of his assertion that he did not know of the fee waiver option there is no evidence to demonstrate that that state of knowledge was apparent to him within the time for filing his application such that it was informed consideration.
Concerning ministerial intervention, the applicant’s affidavit states that his migration agent informed him that he could make an application for review to the Court or make an application for ministerial intervention. The applicant chose ministerial intervention which he now believes was the “wrong decision”. The respondent submitted that the applicant, having made his decision to choose ministerial intervention, which ultimately proved to be fruitless, now cannot make an application to the Court to have the Tribunal decision reviewed especially given that he had knowledge that he could apply to the court for review. In support of its submission, the applicant noted the observations of Wheeler JA in Willoughby & Ors v Clayton Utz (2007) WASCA 5 where at [8] His Honour noted:
“If a party’s fresh advice or change of mind were good reason to extend time, there would be little point in having time limits at all.”
Extent of Delay
The delay in this instance was approximately 3 months. The context of the delay should not be ignored. In this instance, the applicant could have made application for review and for ministerial intervention concurrently. He chose not to and accordingly, given his earlier election, was largely responsible for the delay by his own decisions.
Consideration of the effect of the grant of an extension on both parties
The first respondent concedes that it would probably not suffer prejudice by the late application. However, it contends that the Full Court has held that “the mere absence of prejudice is not enough to justify the grant of an extension”.[1] In any event, the first respondent contends that having regard to the extensive delay in filing the application, an extension should not be granted in the interests of achieving some finality of the litigation.[2]
[1] Parker v The Queen [2002] FCAFC 133 at [6], endorsing the comments of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.
[2] See SZGBP v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2006] FCA 587 at [62]; SZCOZ v Minister for Immigration and Citizenship [2007] FCA 641 at [3].
Does the application disclose an arguable case
Plainly, if the applicant’s principal application does not disclose an arguable case, then permitting the extension of time would be futile. The first respondent submits that the application in this instance does not disclose an arguable case and that on that ground alone an extension of time should be refused. Considering then the grounds of review, the applicant contends two grounds in his application. They are:
“1. The second respondent fell into jurisdictional error in that they failed to take into account relevant materials or considerations.
PARTICULARS
(a)The second respondent failed to accurately consider the information provided by the applicant about family members being pressured to stop him from speaking out about the government actions. In particulars the second respondent failed to comment or respondent to statements that the applicant’s sisters were dismissed from their positions as a result of official pressure and negative publicity;
(b)The second respondent failed to accurately consider claims made by the applicant about significant discrimination and harassment to the applicant’s family against families of supporters of the old government. Instead the second respondent relied on DFAT advice of 1999.
(c)The second respondent failed to accept as credible the applicant’s claims about involving himself in political matters, in particular that he was ever involved in producing, pictures, cartoons, photographs or other material depicting controversial or political issues.
(d)The second respondent failed to understand the applicant’s evidence that he had not ever married meant that he had not entered into a formal marriage, when his informal marriage was still to be dissolved.
(e)The second respondent failed to accept the applicant’s evidence that he was detained many times and considered a political threat by the Vietnamese authorities.
2. The second respondent fell into a jurisdictional error in that it misinterpreted the law or failed to apply the law relevant to the application before it.
PARTICULARS
(a)The second respondent stated that it considered relevant the fact that it does not accept on the evidence before it that the applicant has ever been denied the protection of the authorities. The information was not given for the purposes of the application within s.424A(3)(b) Migration Act 1958. Hence the second respondent failed to comply with s.424A in relation to such information.
(b)The second respondent’s finding that it does not accept on the evidence before it that the applicant has ever been denied the protection of the authorities contradicts the finding as remote the chance that he should be discriminately denied the protection of the state.
(c)The second respondent then further extends that finding the applicant does not have a well founded fear of being persecuted in Vietnam for any Convention reason, when this is the basis of the evidence that the applicant provides.”
In considering the applicant’s application, the Tribunal heard evidence and submissions over the course of two days before its delivery of a 43 page decision.
In the first ground of the application, it was contended that the Tribunal fell into error by failing to take into account relevant materials or considerations. Dealing then with each of the particular allegations:
The allegation that the Tribunal failed to comment or respond to statements that the applicant’s sisters were dismissed from their positions as a result of official pressure and public negativity.
This matter was referred to at a number of points through the Tribunal’s decision. However, the issue was most clearly articulated at paras 59, 74 and 104, especially at subpara 7. Ultimately the matter was discussed by the Tribunal at paras 74, 115 at dot point 3 and at 140 on page 38 where merits findings were made. Ultimately, the Tribunal’s findings on the point were contained at paras 143 and 149. Consideration of those paragraphs demonstrates that there was no failure by the Tribunal to accurately consider the information provided by the applicant. Ultimately, having heard the applicant’s case and considering it, it was not satisfied on the matters contended for by the applicant and made findings against the applicant which were open to the Tribunal on the evidence before it.
Claims by the applicant about significant discrimination and harassment to the applicant’s family against families of supporters of the old government instead relying on DFAT advice of 1999
The issue, as articulated by the applicant, was clearly identified by the Tribunal and can be seen at paras 59, 60 and 61. There was discussion concerning those matters and in particular the DFAT advice at paras 107 and 139. Ultimately, the Tribunal made findings which are expressed at paras 146, 149 and 151. The Tribunal having correctly identified the issue and having considered it made findings which were largely based on merits. The findings were open to the Tribunal on the evidence before it and accordingly are now not subject to review.
The Tribunal failed to accept as credible the applicant’s claims about involving himself in political matters and the production of political images
The Tribunal accurately identified the applicant’s complaints in respect of this matter particularly at paras 27 at pages 5, 31, 32, 37, 47 to 49 inclusive and 104 at page 23.
The Tribunal discussed those matters as can be seen at paras 54, 55, 56, 57, 58, 66, 68, 81, 82 and 123 to 128 inclusive.
Ultimately the Tribunal made findings against the applicant as expressed at para 133 and restated at para 148. The Tribunal correctly identified the issue for consideration and determined the matter against the applicant. The Tribunal’s findings were merits findings open to it on the evidence before it. There is no basis for review of that matter.
The Tribunal failed to understand the applicant’s evidence that he had not ever married meant that he had not entered into a formal marriage when his informal marriage was still to be dissolved
This was a very confusing allegation by the applicant which nonetheless did not give rise to a convention reason in any event. It was also appropriately considered by the Tribunal. At para 44 the Tribunal correctly recorded the applicant’s assertion in respect of this matter. It was discussed and determined at para 122 with the Tribunal’s significant determination that nothing turned upon its finding on that matter. The matter was one that was considered by the Tribunal analysed and determined. The Tribunal’s finding was open to it on the evidence before it and the finding was determined on the merits. There was no error demonstrated in the Tribunal’s consideration of the matter.
The Tribunal failed to accept the applicant’s evidence that he was detained many times and considered a political threat by the Vietnamese authorities
The Tribunal correctly identified the issue contended for by the applicant at para 25 at page, 37, 52, 53, 58 and 70. Its discussion of the evidence can be found at paras117, 118 and 121 with its finding against the applicant being found at para 149. Ultimately the finding of the Tribunal was one open to it on the evidence. The Tribunal correctly instructed itself in respect of the issue and the evidence. In my view, no error is demonstrated in respect of the Tribunal’s consideration of this matter.
It follows that in respect of the matters identified in the particulars to para 1 of the grounds of application the Tribunal made findings which were open to it on the evidence. Given the Tribunal’s findings, it cannot be said now that the Tribunal failed to take into account relevant materials or considerations. Having made findings against the applicant in respect of the factual matters contended for in the particulars to ground 1, those matters were afforded the relevance and/or consideration as was appropriate to the factual findings that were made.
It follows, in my view, that the applicant has poor, if any, prospects in respect of ground 1 of his application.
In ground 2 of the application the applicant contends the Tribunal fell into error in that it misinterpreted and failed to apply the relevant provisions of s.424A (3)(b) of the Act.
Section 424A of the Act relevantly provides:
“Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
…
(3)(b) that the applicant gave for the purpose of the application for review.”
Relevantly s.424AA provides:
“Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.”
In this instance, the issue complained of by the applicant is that the Tribunal failed in the course of the hearing to properly inform him that it considered relevant the fact that it did not accept on the evidence before it that he had ever been denied the protection of the authorities. In effect, he complains that the Tribunal did not satisfy its obligations under s.424AA of the Act, in the course of the applicant appearing before it, to orally give to the applicant clear particulars of any information that the Tribunal would have considered as the reason or part of the reason for affirming the decision; and, ensuring that the applicant understood why the information was relevant to the review; and, the consequences of the information being relied on in affirming the decision under review; and, invite the applicant to comment or respond to the information; and, inform the applicant that he or she may seek additional time to comment on or respond to the information; and, if sought, permit an adjournment for that purpose.
The matter was raised by the applicant in his application. In its decision, the Tribunal noted that the applicant had claimed in his application that the authorities would not protect him. The Tribunal dealt extensively with the applicant’s allegations as they concerned both himself and his family. He had contended that not only was he the subject of persecution but that his family were also persecuted. The Tribunal gave the applicant an invitation to attend before it pursuant to s.425. In appearances before it, the Tribunal engaged the applicant, questioning him about each of the matters relevant to protection of both himself and his family – see para 27 page 6. At the Tribunal hearing the applicant separately addressed these issues and was invited to comment – see paras 58 to 62 inclusive. Comments by the Tribunal in its decision at para 96 suggest the Tribunal did inform the applicant that he may have more time to consider the matters if he required it, but no request was made.
It follows that the complaints insofar as they relate to events at the hearing are most probably unfounded and are unlikely to have any bearing on the outcome of this application.
Concerning the alleged failure to comply with s.424A, it is apparent from the Tribunal’s decision at para 102 that the matter of denial of protection was not one of the matters addressed by the s.424A letter and accordingly it appears there has been no failing on that matter. On that basis the matter contended for in ground 2(a) is likely to fail.
Concerning ground 2(b), the applicant seeks to challenge the Tribunal’s finding on the basis that it is contradictory. That is, the Tribunal did not accept the applicant’s evidence that he had ever been denied the protection of the authorities but yet proceeded to find as remote the chances that he should “be discriminatorily denied the protection of the State”. Such a finding is not contradictory to the evidence. The evidence demonstrated that there had been instances of non-protection. Such evidence was particularly contained in some of the country information although it was up to 10 years old. However, as it was open to the Tribunal, it did not consider that matter likely for the applicant. The finding was one of fact available to the Tribunal on the evidence before it and in the circumstances is not amenable to judicial review. It follows this ground is also unlikely to succeed.
Ground 2(c) follows the applicant’s complaints concerning ground 2(b). As with ground 2(b) this ground is also premised upon the Tribunal’s findings of fact which were open to it upon the evidence. In the circumstances, it seems unlikely that this ground will succeed.
It follows that having regard to each of the grounds raised by the applicant in his application, it is unlikely that the applicant will succeed if leave were granted to extend time for the commencement of his application.
Conclusion
In conclusion, given the unexplained delay and the informed decision of the applicant not to make a timely application for judicial review and the fact that on the materials it seems unlikely that the application would succeed if leave were granted, I am of the view that the application for leave ought to be refused and in turn the principal application ought to be dismissed.
Orders
Application dismissed.
Subject to any application being made within seven (7) days of today’s date, direct the applicant pay the respondent’s costs of and incidental to the application to be assessed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 17 November 2010
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