MZAFX v Minister for Immigration
[2015] FCCA 1228
•26 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAFX v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1228 |
| Catchwords: MIGRATION – Application for judicial review of determination of Refugee Review Tribunal – extension of time required – substantive delay – unsatisfactory explanation for delay – no merit in substantive application – application for extension of time refused. |
| Legislation: Migration Act 1958 (Cth). |
| SZLIH & SZLII v Minister for Immigration & Citizenship [2009] FCA 308 SZNZI v Minister for Immigration & Anor [2010] FMCA 57 |
| Applicant: | MZAFX |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1155 of 2014 |
| Judgment of: | Judge McGuire |
| Hearing date: | 12 May 2015 |
| Date of Last Submission: | 12 May 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 26 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mosley |
| Solicitors for the Applicant: | Australian Government Solicitors |
| Counsel for the Respondents: | In Person |
ORDERS
The applicant’s application for an extension of time to lodge his application for judicial review be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,825.00
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1155 of 2014
| MZAFX |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application.
The Applicant seeks judicial review of a determination of the Refugee Review Tribunal (“the Tribunal”) made 23 January 2014 affirming a decision of the Minister’s Delegate that the applicant did not meet the criteria for a Protection (Class XA) visa (“the visa”) pursuant to s 36(2) of the Migration Act 1958 (“the Act”).
The applicant appears unrepresented but with the assistance of an interpreter.
The application was filed 12 June 2014 and is some three months out of time. The applicant therefore seeks the indulgence of an extension of time to bring this application.
The application for the extension of time and the substantive application are both opposed.
On 5 September 2014 the Registrar made orders and directions including for the filing of written submissions. The applicant has not provided any written submissions.
The applicant was invited to make oral submissions before me both prior and post submissions of Counsel for the first respondent. The submissions that were forthcoming did not address the issue of the extension of time nor any particular error of the Tribunal alleged. Such submissions broadly repeated the material in the applicant’s claim for a visa heard by the Minister’s Delegate and the Tribunal.
The applicant did file an affidavit sworn 12 June 2014 which sets out a chronology as apparent explanation for failure to lodge the application with this Court within the prescribed 35 day time limit. The applicant is functionally illiterate and it is apparent that he had the assistance of some legal advice at that stage. The applicant’s chronology, which is conceded by the first respondent, relevantly sets out:
·On 23 January 2014, the RRT affirmed the delegate’s decision not to grant a protection visa.
·On 3 February 2014, the Red Cross made a referral to the ASRC and VLA for legal assistance.
·On 6 March 2014, a legal volunteer at the ASRC contacted me and explained that they were assessing my case. I was informed about the 35 day filing period to lodge an appeal. This was the first time I was ever advised about a deadline to appeal to the court. I was told that the ASRC would contact me once they had assessed my RRT decision.
·On 13 March 2014, I spoke to an ASRC caseworker, Justine, as I was very confused about my legal situation and who was assisting me. The caseworker contacted the ASRC legal team to inquire into my matter.
·On 19 March 2014, the ASRC arranged for me to sign a form so that they could get the documents relating to my file from the Department of Immigration…
·On 2 April 2014, the ASRC sent an email to my previous migration agent, Craddock Murray Neumann, (CMN), to request legal documents relating to my file to assist them in assessing my case…
·On 10 April 2014, the ASRC wrote to the Department of Immigration to inform them that the ASRC is currently assessing my case, and to request that a bridging visa for three months to be granted to ensure that I remain lawful during this assessment.
·On Friday 30 May 2014, I asked by ASRC caseworker, Jenny, what was happening with my case. She said that it was still being assessed and that we should know in about one week.
·On 6 June 2014, I was contacted by a legal volunteer at the ASRC. I was advised that my case had been assessed by a lawyer, and that they could help me prepare an application to the court.
·I am 65 years old and I suffer from memory loss. I also have trouble understanding things. I am illiterate and I do not understand English. I have to reply on other people to explain the legal process to me. I have always done my best to progress my case and find people who can help me. I did not know and I was not able to file an application on my own.
The application itself raises two grounds of complaint namely;
1. The decision of the Tribunal:
a) is affected by an error of law; and
b) denies the applicant procedural fairness.
These grounds of complaint are not otherwise particularised and are not elaborated upon by written or oral submissions.
Background Facts.
The applicant is from Afghanistan. He is of Hazara ethnicity and is a Shia Muslim.
The applicant departed Afghanistan legally on 25 March 2012 and arrived in Australia as an irregular maritime arrival on 3 June 2012.
The applicant’s protection visa application was lodged on 14 September 2012. He sought a protection visa claiming fear of significant harm of persecution because of his ethnicity and his religion together with his membership of a particular social group (PSG) of Afghan failed asylum seekers.
The Ministers Delegate refused the application on 2 July 2013.
On 8 July 2013 the applicant applied to the Tribunal for a merits review. The Tribunal affirmed the Delegate’s decision on 23 January 2014.
The applicant appeared before the Tribunal together with his representative at the hearing on 28 November 2013.
The Tribunal’s reasons at CB 198 transcribe the applicant’s particularised claim of fear of harm of persecution. Effectively, he says that he purchased land from a person he now knows to be a member of the Taliban. He says that he was threatened by Taliban members wanting the return of the title to the land. He says that the Taliban came into possession of his voting card which would identify him and cause him fear of being killed by the Taliban. He says that armed Taliban came to his home but he was able to escape and went to Kabul. He says that his wife and children have fled his home and that one son was beaten by the Taliban, forced to pray like a Suni, and has not been seen or heard from since fleeing his attackers.
The applicant claimed that he would suffer “arbitrary arrest and detention, imprisonment, physical assault and torture, possible death at the hands of the Taliban and/or other anti-Hazara extremist because of my ethnicity and religion…” if returned to Afghanistan.
The Tribunal’s Findings and Determinations.
The Tribunal accepted a number of the historical claims made by the applicant but found a number of inconsistencies between his evidence to the Tribunal and a previous statutory declaration.
The Tribunal at [48] also took into account the fact that members of the applicant’s family had been living in Kabul for a period of at least a year and found that, regardless of other findings as to credit, the applicant could reasonably relocate to Kabul where he would not face a real chance of serious harm or a real risk of significant harm.
The Tribunal took into account the applicant’s submissions and relevant country information and concluded at [51]:
Considering the applicant’s claims both individually and cumulatively, the Tribunal does not accept that the applicant faces a real chance of persecution, including being killed, physically abused or seriously discriminated against, threatening his ability to subsist, if he returns to Afghanistan, now or in the reasonably foreseeable future, for reasons of his Hazara ethnicity, his Shia religion, his membership of a particular social group of Afghan failed asylum seekers or any other reason. The Tribunal therefore finds that the applicant’s fear of persecution is not well-founded.
The Tribunal at [57] considered and found that the alternative complementary protection obligations in s.36(2)(AA) were not satisfied.
The Application before this Court.
The applicant here requires an exercise of the discretion of this Court to allow him an extension of time to bring his substantive application. On my calculations he is more than 100 days out of time in filing the application. The applicant therefore seeks an indulgence of the Court. The considerations in exercising the discretion are many, varied and unconfined. Generally, however, in considering the exercise of such a discretion the Court would take into account the following but not limited to the following:
1. The length of the delay;
2. The explanation for the delay;
3. The merits of the substantive argument; and
4. Any prejudice to the parties on either the granting or the not granting of the extension of time.
Counsel of the Respondent helpfully referred me to a decision of my colleague, Federal Magistrate Smith (as he then was) in SZNZI v Minister for Immigration & Anor[1] where his Honour at [11] said in respect of this issue:
The considerations which might bear on that discretion are unconfined. As for the other powers to extend time and to waive defaults in relation to Court’s procedure two are critical considerations are; “(1) that an explanation reasonable to the circumstance, 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 effect the determination of the rights and duties of the parties in a way different for 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 YUY v Minister for Immigration & Anor [2009] FMCA 116 at [40]-[41]). None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two “critical” considerations…
[1] [2010] FMCA 57
The delay here is a lengthy one. In my view, therefore, the applicant’s explanation assumes commensurately greater attention and importance than might a delay of only a few days.
I take into account the applicant’s circumstances. He is not young. He says that he suffers from memory loss. He does not speak or understand English. I assume, therefore, that he benefits from assistance from others in matter such as these.
The Tribunal’s decision was handed down on 23 January 2014. There then started a 35 day time limit. Notably, from the applicant’s own chronology, he was receiving some assistance by way of referrals of legal advice as of 3 February 2014. Suffice to say that the time limit of appeal is advised with the Tribunal’s reasons.
Notably, on 6 March 2014 the applicant says that he had the assistance of a “legal volunteer at the ASRC” who was “assessing his case”. Significantly, the applicant then concedes in his own chronology that “This was the first time I was ever advised about a deadline to appeal to the court.” I take that date into account relative to the application not being lodged until 12 June 2014 being a period of some further three months. No specific explanation for the failure to lodge the application during this three month period was forthcoming.
Further, the applicant deposes in his affidavit to frequent contact with those assisting him on 13 and 19 March and 2 and 10 April 2014. He does not explain why his application was not filed prudently and during this period.
In SZLIH & SZLII v Minister for Immigration & Citizenship[2] Cowy J stated what would seem to be the obvious:
It is not acceptable that the applicants failed to make proper inquiries to determine when their appeal was required to be lodged.
[2] [2009] FCA 308 at [33]
There being no further submissions, either written or oral by explanation for this delay, I am not satisfied that the applicant’s explanation, such as it is, is satisfactory or acceptable.
The prejudice to the applicant in not granting him an extension of time is the obvious dismissal of his application. Such a prejudice may in certain circumstances be significant. Nevertheless, and again, the applicant makes no submissions and has not particularised any specific prejudices to him in the refusal of the extension of time. In any event, the existence or not of a prejudice, substantial or not, is not determinative of the issue.
I must also consider the prima facie merits of the applicant’s substantive claim. His application alleges only in the generic sense that the decision of the Tribunal is “affected by an error of law” and “that he was denied procedural fairness”. Neither claim is supported by written or oral submissions. Neither claim is further particularised. Whist it is not for the respondent to make out a case for an applicant, Counsel for the respondent in this matter helpfully took the Court through the Tribunal’s reasons. It is clear that the Tribunal properly understood its task and referenced the appropriate legislation. It is not apparent that the Tribunal took into account information of which the applicant did not have opportunity to comment or respond. The applicant and his representative were invited and attended the Tribunal hearing. Absent any particulars, the Tribunal’s reasons do not indicate a lack of procedural fairness being afforded to the applicant. Consequently, no jurisdictional error is evident and the application in this form has no prospect of success.
Conclusion.
There is no adequate explanation for the applicant’s lengthy delay in lodging the application. Whilst there may be a consequent prejudice (given the nature of the application) on the applicant by a failure to grant an extension of time, that in itself is not determinative. There is no evident jurisdictional error in the process of the Tribunal. I am satisfied, therefore, that the appropriate Order is to dismiss the application.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 26 June 2015
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