Mzagf v Minister for Immigration
[2015] FCCA 1560
•10 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAGF v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1560 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – application to review tribunal’s decision out of time – no adequate explanation for delay – no merit to the proposed substantive application – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.46A(2), 424, 424A, 474(1), 477, 477(1), 477(2) |
| Applicant A2 of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 576 MZZBM v Minister for Immigration & Anor [2013] FCCA 321 M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 Singh & Anor v Minister for Immigration & Anor [2015] FCCA 831 Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 |
| Applicant: | MZAGF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1230 of 2014 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 13 May 2015 |
| Orders made: | 13 May 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 10 June 2015 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Mr Smyth |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS MADE 13 MAY 2015
The application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.
The Applicant to pay the costs of the First Respondent fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1230 of 2014
| MZAGF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This matter came before the Court on an Application filed by the Applicant for an extension of time under s.477 of the Migration Act 1958 (Cth) (‘the Act’) to review a decision of the Refugee Review Tribunal (‘the Tribunal’) made 20 December 2013.
The grounds of application for an extension of time were as follows:-
“(1) Because I was waiting for the decision from Ministerial.
(2) There is no legal advice from anyone.”[1]
[1] Applicant’s Application filed on 23 June 2014.
Thereafter, in that application, the Applicant sought as a final order that the decision of the Tribunal or Minister be quashed on the grounds that:-
“(1) The Ministerial did not afford me procedural fairness.”[2]
[2] Ibid.
The First Respondent filed a Response to the Application and on 28 July 2014. The Response was as follows:-
“(1)The Court has no jurisdiction to review the Refugee Review Tribunal decision dated 20 December 2013. Subsection 477(1) of the Migration Act 1958 (Cth) applies, and the application in this Court was not filed within 35 days of the date of Tribunal decision.
(2)The application for judicial review does not provide any particulars or any legal ground of review.
(3)The application for judicial review does not establish any jurisdictional error in the decision of the Refugee Review Tribunal dated 20 December 2013.”[3]
The First Respondent sought dismissal of the application and an order for costs on scale as set out in paragraph 48 of the First Respondent’s Written Submissions filed 5 May 2015.
[3] Respondent’s Response filed on 28 July 2014.
The matter proceeded before Registrar Caporale on 17 September 2014. Orders were made by consent, which included that the Applicant on or before 20 January 2015 file and serve any amended application, including any additional grounds of review, with complete particulars of each ground, and written submissions 14 days before the final hearing. The Applicant complied with neither of those orders. The Applicant’s grounds remain unparticularised and the application was not amended.
The Application was filed on 26 June 2014. Any application in relation to the Tribunal’s decision should have been made within the 35 day period specified by s.477(1) of the Act, that is, by 13 February 2014. The Applicant was therefore 133 days out of time. He required time to be extended by discretion of the Court, pursuant to s.477(2) of the Act. The First Respondent in his submissions conceded that he was not prejudiced by the Applicant’s delay, but urged the Court to refuse to grant an extension, as the applicant had neither adequately explained his delay, nor demonstrated that the substantive case he sought to make, had reasonable prospects of success. Therefore, it was not necessary in the interests of the administration of justice to make the order sought. The Court agreed with the submissions of the First Respondent and made orders at hearing dismissing the Application with costs. These are the reasons for that decision.
Background
The Applicant is a citizen of Sri Lanka. He is of Tamil ethnicity. He arrived in Australia as an irregular maritime arrival on 15 July 2012 and participated in an entry interview on 17 August 2012. On 28 September 2012, he applied to the Department of Immigration and Citizenship (as it then was) for a protection visa, after the First Respondent lifted the bar in s.46A(2) of the Act. He appointed a migration agent to represent him throughout the process. On 13 February 2013, a Delegate of the First Respondent (’the Delegate’) refused to grant the Applicant a protection visa.
On 15 February 2013, the Applicant applied through his migration agent to the Tribunal for review of the Delegate’s decision. On 10 April 2013, the Tribunal invited the Applicant to attend a hearing before it in respect of the Applicant’s application for review of the decision of the Delegate to refuse to grant the applicant a Protection (Class XA) visa. The Tribunal set out the hearing date of 10 May 2013 in its invitation to appear before it, and advised the Applicant that such invitation to appear was to give evidence and present arguments relating to the issues arising in his case. An interpreter in the Tamil and English languages was made available to the Applicant in each of his hearings before the Tribunal.
By correspondence of 8 May 2013, the Applicant’s authorised representative BMA Lawyers provided written submissions to the Tribunal. Those submissions included relevant country information. They provided comment in relation to the Delegate’s finding as to credibility, and sought to address many of the adverse findings made by the Delegate.
On 10 May 2013, the Applicant attended the Tribunal hearing accompanied by his authorised representative.
On 31 May 2013, the Applicant’s authorised representatives provided post-hearing written submissions to the Tribunal. Those submissions sought to address the various issues raised by the Tribunal during the hearing that was held on 10 May 2013.
On 3 December 2013, the Tribunal invited the Applicant to attend a second hearing before it scheduled for 16 December 2013. The Applicant was again invited to give evidence and present arguments relating to issues arising in relation to the decision under review.
On 16 December 2013, the Applicant attended the second tribunal hearing accompanied by his authorised representative and assisted by a Tamil interpreter.
In between the first and second tribunal hearings the Tribunal provided to the Applicant a copy of the recording of the hearing held on 10 May 2013 as requested by the Applicant.
By correspondence of 23 December 2013, the Tribunal notified the Applicant through his authorised recipient that it had determined to affirm the decision under review and, thus, refused to grant the Applicant a Protection (Class XA) visa.
Claims of the Applicant and Tribunal findings
The Applicant’s claims were as set out accurately in the First Respondent’s Written Submissions as follows:-
(1)The Applicant’s claims were articulated in a statutory declaration accompanying his application for the Protection visa and submissions provided by his representative to the delegate.
(2)In substance, he claimed to fear persecution in Sri Lanka from the army and Criminal Investigation Division (CID) on the basis of:
(a) his race (Tamil);
(b) his imputed political opinion; and
(c)his membership of a particular social group - namely being a returnee from a Western Country and a failed asylum seeker.
(3)The Applicant claimed that due to his ethnicity he was harassed, beaten, intimidated and threatened with torture by army officers at a camp in Udappu after he refused to do chores for them (such as buying cigarettes). The Applicant claimed that he needed to commute from near the camp in order to go school in Chillaw and stopped going to school at the time out of fear of the army. He claimed that the camps are set up in Tamil regions to enable army harassment of the Tamil population.
(4)The Applicant claimed that in March 2012, his uncle was abducted in Udappu, possibly due to his real or imputed LTTE connections. The Applicant claimed that following his uncle’s abduction, CID threatened and beat the Applicant’s mother and threatened the Applicant, demanding to know there whereabouts of the Applicant’s older brother. The Applicant believed that the CID were interested in his brother as he worked with his uncle on a prawn farm and also may have had connections with the LTTE.
(5)The Applicant claimed that CID officers threatened that they would find and kill the Applicant if he did not help them find his brother, and that he is now wanted by them and (sic) are active throughout Sri Lanka and that he would be targeted as a young Tamil male.
Consideration
The Tribunal’s decision was as set out accurately in the First Respondent’s submissions as follows:-
a)The Tribunal did not accept the Applicant’s claim that he had any interaction with the Sri Lankan army based in Udappu, given that school records indicated that he went to school in Chillaw and had no reason to travel to Udappu and that as a result there was no sound or logical basis for finding that the Applicant faced any real chance of serious harm from the army. Fundamentally, the Tribunal’s reasoning on this issue was based on the inconsistency and objective unlikelihood of the factual account the Applicant advanced, and the conclusions as to the Applicant’s credibility the Tribunal drew against that background.
b)For similar reasons, the Tribunal did not accept the Applicant’s claim that his uncle had been abducted or that or that authorities had sought to detain his brother. It characterised the account he gave as “vague, undetailed and speculative”,[4] so that it was “not willing to accept uncritically that something in the uncle’s background triggered adverse interest in him in 2012”.[5]
c)The Tribunal found the Applicant’s uncle’s ease of travel to be strongly suggestive that he was not suspected by the authorities of LTTE involvement or even being a supporter. The Tribunal noted that given the Applicant’s uncle was related to him through marriage, there was no real chance the authorities would suspect him of LTTE involvement having regard to his circumstances as a student and his stable residence in Udappu.
d)The Tribunal considered a statement provided by the Applicant’s brother that detailed the account of their uncle’s disappearance, but attached no weight to this document as it did not overcome credibility issues with the Applicant’s account. The Tribunal noted that given his brother’s protection application was unsuccessful, this was strongly suggestive that his claims were not accepted by the Tribunal (differently constituted); in any case, the Tribunal said, the brother’s statement “[did] not overcome the credibility findings elsewhere about the applicant’s own account”. [6]
e)The Tribunal did not accept the Applicant’s claims that his brother came under suspicion from authorities in 2012 and that the Applicant and his mother were beaten by the CID to discover the location of his brother. The lack of any problems experienced by his parents after his departure from Sri Lanka was “strongly suggestive”[7] that there was no adverse interest by the CID or the authorities in the Applicant.
f)The Tribunal considered country information from the UNHCR and found that there was nothing in the Applicant’s circumstances to indicate that he faced any real chance of serious harm simply on the basis of his Tamil ethnicity.
g)The Tribunal also considered country information in relation to the treatment of returned failed asylum seekers and did not accept that the Applicant would face a real chance of serious harm from detention for questioning given his circumstances.
h)The Tribunal did accept that the Applicant would be charged for his illegal departure under a Sri Lankan law “applied generally and without apparent discrimination or selectivity”. It found that the chances were remote that he would spend more than a “very short period” in detention or that he would be targeted and seriously harmed. Further, on country information, the Tribunal found it likely that the Applicant would face a “minor or moderate fine”,[8] which he had the capacity to pay, rather than be sentenced to any term of imprisonment.
i)The Tribunal, in considering the cumulative evidence; its factual findings; and the Applicant’s representatives claim that he faced a “risk of enforced disappearance”, found there was no sound basis for finding that the Applicant faced any real chance of harm for any reason advanced.
j)The Tribunal also assessed the Applicant’s eligibility for complementary protection. It considered that based on its previous findings of fact that there was no real chance of serious harm, there was also no real risk of significant harm.
[4] Refugee Review Tribunal Decision Record dated 20 December 2013 at [19].
[5] Ibid.
[6] Refugee Review Tribunal Decision Record dated 20 December 2013 at [24].
[7] Refugee Review Tribunal Decision Record dated 20 December 2013 at [25] to [27].
[8] Refugee Review Tribunal Decision Record dated 20 December 2013 at [45] to [46].
Consideration
Section 477 of the Act is as follows:-
“(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit 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.
(3) In this section:
date of the migration decision means:
(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975—the date of the written decision under that subsection; or
(b) in the case of a migration decision made by the Migration Review Tribunal—the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or
(c) in the case of a migration decision made by the Refugee Review Tribunal—the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or
(ca) in the case of a migration decision made by the Immigration Assessment Authority—the date of the written statement under subsection 473EA(1); or
(d) in any other case—the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”
The fact that the Applicant applied for Ministerial intervention has been held not to be an adequate explanation of delay for the purposes of s.477(2) of the Act.[9] The delay of 133 days is a substantial one and it exists without any adequate explanation. The Applicant had legal advice available to him at least up until the delivery of the Tribunal’s decision. There is nothing before the Court to suggest that in the interests of the administration of justice the Court should exercise its discretion to extend the time limit legislatively provided for, in the Applicant’s favour.
[9] Singh & Anor v Minister for Immigration & Anor [2015] FCCA 831 at [20]; Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [25]; MZZBM v Minister for Immigration & Anor [2013] FCCA 321 at [19]; Applicant A2 of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 576 at [9]-[10]; M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 at [24].
Further, the Court will not extend a statutory time limit if the substantive case sought to be put has no prospect of success.[10] The proposed substantive application for judicial review contains no particulars of the ground alleged. It is not for this Court to create and make out grounds for the Applicant. His Application in its present form is meaningless. The Applicant failed to take the opportunity to rectify his Application before the hearing.
[10] SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] and the cases therein cited.
On a fair reading of the Tribunal’s decision there is no jurisdictional error. The Applicant was afforded procedural fairness which involved putting to him matters as required pursuant to s.424A of the Act which also provides for matters which are not necessary to put to him. No breach of that section is apparent in Tribunal’s reasons. The Tribunal relied upon country information and gave it such weight as it deemed appropriate, as it was entitled to do. It complied with s.425 of the Act. Indeed the Tribunal held two hearings to provide to the Applicant ample opportunity to comment upon and provide submissions with respect to matters of concern to the Tribunal.
There is no utility in extending time. That application is dismissed. The Tribunal’s decision remains “final and conclusive” (s.474(1) of the Act) in accordance with orders made by Registrar Caporale. The lack of a meaningful ground to found a judicial review application is sufficient in itself to find the application unable to succeed.[11]
[11] SZNXA v Minister for Immigration and Citizenship (2010) FCA 775 at [21] (Reeves J).
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 10 June 2015
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