BZAER v Minister for Immigration & Anor
[2014] FCCA 813
•24 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZAER v MINSTER FOR IMMIGRATION & ANOR | [2014] FCCA 813 |
| Catchwords: MIGRATION – Application for extension of time within which to bring application for judicial review – proposed application for judicial review without reasonable prospects of success – application for extension of time refused. |
| Legislation: Federal Circuit Court Rules 2001, r.44.15(1), Part 13, Item 1(c) of Schedule 1 Migration Act 1958 (Cth), ss.65, 477(1), 477(2) |
| WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 |
| Applicant: | BZAER |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 570 of 2013 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 5 December 2013 |
| Date of Last Submission: | 5 December 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 24 April 2014 |
REPRESENTATION
| The Applicant appearing in person |
| Solicitor for the Respondent: | Ms Kelly |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the title to the proceeding be amended by substituting the name "Minister for Immigration and Border Protection" for the name "Minister for Immigration, Multicultural Affairs and Citizenship" as the name of the First Respondent.
The application filed on 15 July, 2013 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 570 of 2013
| BZAER |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant applied on 15 July 2013 for an extension of time to file an application for judicial review of a decision of a refugee review tribunal which affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a Protection (Class XA) visa pursuant to s.65 of the Migration Act 1958 (Cth).
If his application for an extension of time is successful, the applicant seeks judicial review of the Tribunal's decision and consequential orders in the nature of constitutional writs quashing the decision of the Tribunal and compelling the Tribunal to make a new decision according to law.
The first respondent seeks orders dismissing the application with costs in accordance with sub rule 44.15(1) and Part 3, Item l(c) of Schedule 1 to the Federal Circuit Court Rules2001.
As Judge Lucev explained in WZASQ v Minister for Immigration & Anor [2013] FCCA 1726:
Statutory framework
5. Section 477(1) of the Migration Act 1958 provides that an application to this Court for a remedy to be granted in exercise of the Court’s original jurisdiction under s.476 of the Migration Act 1958 in relation to a migration decision must be made to the Court within 35 days of the date of the migration decision.
6. Section 477(2) of the Migration Act 1958 provides that the Court may order that the 35 day period be extended as the Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
7. Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth) provides that:
(1) An application for a remedy to be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought – the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
8. An application for an extension of time is incompetent unless the Court grants an extension of time pursuant to s.477(2) of the Migration Act 1958 . An extension of time will only be granted if:
(a) an application for an order for an extension of time has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make that order; and
(b) the Court considers it necessary, in the interests of the administration of justice, to make an order for an extension of time .
9. In relation to the second requirement, the non-exhaustive list of factors to be considered by the Court in determining whether an extension of time is “in the interests of the administration of justice” include:
a. the extent of the delay;
b. the reasons for it;
c. any prejudice to the respondent;
d. the impact on the applicant if time is not extended;
e. the interests of the public at large;
f. any exercise of the Court’s discretion, and
g. the merits of the proposed substantive application.
In the absence of an application meeting the requirements of s.477(2) of the Migration Act1958, an application for an extension of time under s.477(1) of the Migration Act1958 is incompetent: WZASQ (above) at [12].
5 July, 2013 was the last day for the filing of a review application by the applicant. It was filed on 15 July, 2013 and was therefore 10 days late. The delay is not inordinate by any means.
However, the applicant has not filed any affidavit which contains his evidence explaining the delay in bringing his application for judicial review or showing why it is necessary, in the interests of the administration of justice, for the Court to grant an extension of time. Under the heading “Grounds of application for extension of time (specify why the applicant considers that it is necessary in the interests of the administration of justice to extend time)” his application merely says:
1. Decision Documentations Received only on 17 June 2013
2. Lack of Interpreter Assistance in East Creek prevented seeking early assistance
On that basis alone, the application for an extension of time should be dismissed. Those matters do not reveal, in my view, any proper grounds for establishing that the extension of time is necessary in the interests of the administration of justice. Moreover, there is no evidence upon which the Court might conclude that it is in the interests of the administration of justice for the Court to grant the requested extension. Nonetheless, I do not dismiss the application for an extension of time on that ground. To the extent that I am able, I will consider the matters raised in argument in support of the application for the extension.
The applicant explains the delay by suggesting that he only received the relevant documents on 17 June, 2013. However, the applicant was notified of the Tribunal's decision by letter sent to his representative on 3 June, 2013. Any subsequent delay in his receiving that notification is not attributable to the respondents. Moreover, given that the applicant had a representative, it is unclear why he had no assistance from an interpreter.
However, leaving aside the question of the applicant’s explanation for his delay, the first respondent submits that the discretion to extend time should not be exercised in his favour because the application has no reasonable prospects of success.
For the reasons that follow, I agree that the applicant’s application for review has no reasonable prospects of success and that his application for an extension of time ought to be refused for that reason.
The applicant is a citizen of Sri Lanka. On 18 September, 2012 he lodged an application for a Protection (Class XA) visa. By letter dated 2 November, 2012 a delegate of the first respondent notified the applicant that his application for a protection visa had been refused.
The applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his application. The hearing eventually took place on 8 May, 2013. The applicant's representative provided further written submissions addressing certain matters after the hearing had concluded.
On 31 May, 2013 the Tribunal affirmed the delegate's decision not to grant the applicant a Protection (Class XA) visa. The applicant was notified of the decision on 3 June, 2013 by way of notification sent to his representative.
Before both the first respondent’s delegate and the Tribunal, the applicant claimed that if he returned to Sri Lanka he would be subjected to persecution for 4 reasons, namely:
a)his Tamil race;
b)his membership of a particular social group comprising Sri Lankan Tamils, and Tamils from the North or East of Sri Lanka;
c)real and imputed political opinion arising from his race and his former residence in a predominantly Tamil region; and
d)membership of a particular social group of Tamils who have fled Sri Lanka illegally and have unsuccessfully made claims for asylum in Australia.
The applicant’s claims were based upon his claimed experiences whilst living in Sri Lanka. He relied upon a number of events, set out by the Tribunal in its reasons for decision, as evidence of the persecution that he faced.
The applicant claimed that he would be persecuted because he was a member of a particular social group, namely Tamils from the North or East of Sri Lanka. The Tribunal considered that claim, but decided that the applicant was not from the North or East of Sri Lanka, but was from the south of the North West province.
The applicant also pointed out to the Tribunal that he could not undertake his traditional calling of fishing for himself or his family. He claimed that he was harassed and prevented from doing so because of his race. In that respect, the Tribunal considered a DFAT advice dated 29 November, 2012 and an August, 2012 article by Agence France-Presse on fishing restrictions. It also considered reports, articles, and updated evidence provided by the applicant and his representative. The Tribunal was not satisfied that the applicant’s claims about these matters amounted to persecution.
The applicant claimed that in August, 2011 his identity card was retained by the Sri Lankan Navy and that he was detained, questioned and had boiling water poured on his legs by sailors. However, the Tribunal found that the applicant had not maintained a consistent account as to who was responsible for this incident and that his claims in this regard were not credible.
The applicant submitted that there had been ongoing human rights abuses in Sri Lanka. Before making a finding on this point, the Tribunal considered all information submitted on the applicant's behalf, in light of an updated DFAT Report dated 22 October, 2012 which indicated that incidents of abduction have significantly reduced since the time of the military conflict in Sri Lanka.
Having found the applicant did not face a well-founded fear of persecution for a Convention reason, the Tribunal went on to consider the applicant's claims for complementary protection. The applicant claimed that he would face a real risk of significant harm as a member of a particular social group of Tamils who fled Sri Lanka illegally and unsuccessfully made claims for asylum in Australia. The applicant also relied upon the fact that he had visible scarring on his legs and that made him more vulnerable as a failed asylum seeker.
The Tribunal considered information held by it concerning these matters, and in particular:
a)a 2011 report from the Immigration and Refugee Board of Canada;
b)DFAT Report 1446 from 2012;
c)UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka; and
d)DFAT 2012 Country Information Report No. 12/67.
Based on that information, the Tribunal accepted that the applicant may face a short period on remand when he first returned to Sri Lanka, but it was not satisfied that there was any more than a remote chance that he would be sentenced to a term of imprisonment.
The applicant claimed that the cumulative effect of him leaving Sri Lanka illegally, seeking asylum in Australia and having noticeable scarring would mean that he was at risk of serious harm. The applicant provided an extract from a decision of the European Court of Human Rights of 31 May, 2011 supporting his case. Whilst the Tribunal considered that decision, in reaching its decision, the Tribunal relied on information which was more up-to-date than the information provided by applicant. That additional information included updated discussions by the British High Commission in Colombo in January, 2012 and a 2012 UK Border Agency Report.
The applicant’s single ground of review is expressed in his application as follows:
1. Failed to consider all of my claims based on updated factual situations in Sri Lanka.
The reasons for decision published by the Tribunal make it clear that the Tribunal did, in fact, consider all of the applicant’s claims.
Moreover, the Tribunal considered all of the information that it had before it, and in particular the information put before it by the applicant and his representative.
In my view, the applicant’s challenge to the Tribunal’s decision is an attempt to challenge to the merits of the decision. The applicant disagrees with the findings of the Tribunal and the way in which the Tribunal used the evidence that it had before it. But the findings made by the Tribunal were open to it on the evidence before it. In arriving at those findings, the Tribunal was at liberty to place whatever weight it thought appropriate on the evidence. They are not matters with which this Court can interfere.
Conclusion
The applicant is unlikely to be able to establish that the decision of the Tribunal was affected by jurisdictional error. In my view he has no reasonable prospect of successfully prosecuting a judicial review application on the grounds identified by him.
The applicant, of course, might amend his grounds of review or pursue altogether different grounds if an extension of time were granted, but having considered the Tribunal’s reasons, I am of the view that no error is revealed in the Tribunal’s processes or reasoning.
The extension of time should not be granted. The application filed on 15 July 2013 should be dismissed with costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 24 April 2014.
Associate:
Date: 24 April 2014
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