MZYFP v Minister for Immigration and Citizenship
[2010] FCA 881
FEDERAL COURT OF AUSTRALIA
MZYFP v Minister for Immigration and Citizenship [2010] FCA 881
Citation: MZYFP v Minister for Immigration and Citizenship
[2010] FCA 881Appeal from: Application for extension of time: MZYFP v Minister for Immigration & Anor [2010] FMCA 210 Parties: MZYFP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: VID 314 of 2010 Judge: LANDER J Date of judgment: 19 August 2010 Catchwords: PRACTICE AND PROCEDURE – application for extension of time to file and serve a notice of appeal – whether the applicant has sufficient prospects of success on appeal.
Held: The applicant has no prospect of success.
MIGRATION – judicial review – whether the Refugee Review Tribunal complied with its obligations under s 424A of the Migration Act 1958 (Cth).
Held: The Refugee Review Tribunal had complied with its obligations.
Legislation: Migration Act 1958 (Cth) s 424A(1)
Federal Court Rules 1979 (Cth) O 52 r 15Cases cited: MZYFP v Minister for Immigration & Anor [2010] FMCA 210 Date of hearing: 4 and 6 August 2010 Place: Adelaide (heard in Melbourne) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 23 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Counsel for the Respondents: Ms S Koya Solicitor for the Respondents: DLA Phillips Fox Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 314 of 2010
BETWEEN: MZYFP
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE OF ORDER:
19 AUGUST 2010
WHERE MADE:
ADELAIDE (HEARD IN MELBOURNE)
THE COURT ORDERS THAT:
1.The application for an extension of time within which to appeal be dismissed.
2.The applicant pay the first respondent’s costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 314 of 2010
BETWEEN: MZYFP
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE:
19 AUGUST 2010
PLACE:
ADELAIDE (HEARD IN MELBOURNE)
REASONS FOR JUDGMENT
This is an application for an extension of time to file and serve a notice of appeal against an order made by a Federal Magistrate dismissing the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (RRT) given on 1 July 2009 in which the RRT affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.
Because the Federal Magistrate made his orders on 6 April 2010, an appeal from those orders needed to be lodged by 27 April 2010: O 52 r 15(1)(a) of the Federal Court Rules.
No appeal was lodged within that time but an application for an extension of time was filed on 30 April 2010. The application was accompanied by an affidavit in which the applicant deposed that he mistakenly thought that he had 28 days in which to appeal from the Federal Magistrate’s orders and for that reason did not file the notice of appeal within time. He also stated that “English not bring (sic) my language”.
Order 52 rule 15(2) empowers the Court, for special reasons, to give leave to a party to file and serve a notice of appeal outside the time prescribed in O 52 r 15(1)(a). On an application such as this an order is not made granting an extension of time unless it is proper to do so having regard to at least the following matters: first, that there is some acceptable explanation for the delay; secondly, that such an order would not cause prejudice to the respondent; and thirdly, the merits of the application are such that it is appropriate to grant an extension of time.
In this case the delay is only three days. The explanation for the failure to lodge the notice of appeal is credible, especially having regard to the applicant’s lack of familiarity with the English language. There is no prejudice to either respondent, but especially the first respondent. Whether or not an extension of time should be granted must depend upon an examination of the applicant’s prospect of success on such an appeal.
The application was also accompanied by a notice of appeal which identifies only one ground:
1.The FM failed to find that the tribunal’s decision was in breach of s 424A of the Migration Act 1958 (Cth) and therefore fall under jurisdictional error.
(a) There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1).
The notice of appeal does not particularise the adverse information or any information which was said not to have been provided to the applicant.
The applicant is a citizen of India who arrived in Australia on 5 September 2008. On 29 September 2008 he applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. On 26 November 2008 the delegate made a decision to refuse the grant of a visa and notified the applicant of that decision and his review rights by letter dated 26 November 2008. On 15 December 2008 the applicant applied to the RRT for a review of the delegate’s decision.
The applicant claimed that he feared persecution because he was a Christian who had been subject to continuous and constant persecution and because of his political opinions he had suffered persecution by members of the Akali Dal, Shiv Shena and Bajrang Dal.
The initial hearing of the RRT was on 18 February 2009 when the applicant gave evidence and produced documents.
Following upon that hearing, the RRT indicated to the applicant that there were other matters arising from his evidence which they needed to raise with him for consideration.
On 20 April 2009 the RRT conducted a second hearing at which the applicant again attended.
Following the second hearing on 22 April 2009, the RRT wrote to the applicant in accordance with its obligations under s 424A. The letter, which I need not set out in detail, raised three separate issues, being:
(1)information relating to a letter dated 12 February 2008 from the Sacred Heart Church, Jalandhar;
(2)information relating to a medical report dated 31 March 2008 from the Bajaj Hospital Kartarpur;
(3)information relating to the date of the medical from the Bajaj Hospital Kartarpur.
In relation to each of those matters the RRT set out the material which had been supplied by the RRT by the applicant and the evidence which he had given. In respect of all three matters, it also identified why the information was relevant to the review and indicated that unless a satisfactory explanation was given for the matters raised the RRT may find that the applicant did not have a well-founded fear of persecution for a Convention reason and was not entitled to a Protection visa.
On 15 May 2009 the applicant responded to the RRT letter giving an explanation in relation to each of the matters raised.
In the end the RRT did not find the applicant to be credible on a number of critical issues. It found that his evidence in the RRT was different from that contained in the application for the Protection visa. It addressed each of his claims and rejected them.
The applicant brought an application in the Federal Magistrates Court seeking judicial review of the RRT decision on three grounds:
(1)That the tribunal’s decision was in breach of section 424A(1) of the Migration Act 1958 (Cth).
Particulars: (a) There was certain adverse information used by the Tribunal to affirm the decision under review.
(b)The Tribunal did not disclose the information in accordance with s.424A(1).
(2)That the tribunal made error of law and lack of procedural fairness and therefore committed jurisdictional error.
(3)That the Tribunal made denial of natural justice. Because it failed to provide further opportunity before the tribunal.
In his application the applicant did not identify the adverse information in relation to ground (1) of the application.
The Federal Magistrate considered the RRT’s reasons. He concluded that there had been no breach of s 424A of the Act. He found that all of the information to which the RRT referred in its reasons was included in the s 424A letter and there was no further obligation resting upon the RRT. That as I have indicated is now the only ground in the draft notice of appeal. The other grounds before the Federal Magistrate have been abandoned.
When the matter came on for hearing I asked the applicant what information was it that he said was in the RRT’s possession which should have been given him by the RRT in compliance with s 424A. He answered by saying his life was in danger. He was at risk from the opposition party. He said the RRT said that there was no danger.
The respondent had provided the applicant with an affidavit which exhibited the first respondent’s delegate’s decision on 26 November 2008, the RRT’s decision of 1 July 2009, the applicant’s application to the Federal Magistrates Court made on 27 June 2009 and accompanying affidavit, and the reasons for judgment of the Federal Magistrate from which the applicant seeks an extension of time to appeal. All of the documents had previously been provided to the applicant in the course of the application to the first respondent, the RRT review and the Federal Magistrates Court proceeding. However, the applicant sought further time to read the documents and I adjourned the hearing for two days to enable that to occur. When the hearing resumed the applicant failed to appear. The respondent asked me to proceed generally with the appeal in accordance with O 52 r 38A(1d), a course which to me seemed appropriate.
The applicant’s difficulty, both before the Federal Magistrate and on this application, is his inability to identify the information which it is said was relied upon by the RRT but not provided him in accordance with the statutory obligation under s 424A. I have read the RRT’s letter to the applicant which was sent in accordance with s 424A and the RRT’s decision, and I am unable to discern any information that should have been provided by the RRT to the applicant which was information of the kind that might be the reason or part of the reason for affirming the delegate’s decision.
In my opinion, the applicant has no prospects of success on the appeal and, for that reason, the application for an extension of time should be refused.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 19 August 2010
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