Mzyhe v Minister for Immigration

[2010] FMCA 603

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYHE v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 603

MIGRATION – Application for extension of time to lodge application – substantive application wholly unparticularised – reasons for delay in application unpersuasive – Refugee Review Tribunal’s decision not revealing jurisdictional error – application dismissed.

Migration Act 1958, s.477

SZMNO v Minister for Immigration and Citizenship [2009] FCA 797
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs & Environment (1984) 3 FCR 344
Jess v Scott (1986) 12 FCR 187

Applicant: MZYHE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1570 of 2009

Judgment of: Burchardt FM

Hearing date: 16 July 2010

Date of Last Submission: 16 July 2010

Delivered at: Melbourne

Delivered on: 17 August 2010

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr W. Mosley

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1570 of 2009

MZYHE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant applies for an order that the time for making her application be extended under s.477 of the Migration Act 1958

   
   

   (“the Act”).  If granted such extension, she seeks judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) dated

   
   

   27 February 2009.  For the reasons that follow, I do not think that it is appropriate to grant the applicant the extension of time she seeks and I have decided to dismiss the application with costs. 

The nature of the claim and the application

1. In her affidavit filed on 4 December 2009, in support of her application, the applicant relevantly deposed:

   “1.    I am a Cathloic (sic).  I am an active member of the Local church in China. 

   2.    I will be persecuted by Chinese Government if I go back to China.”

2. Otherwise, the affidavit merely annexed a copy of the decision of the Tribunal. 

3. The grounds set out in the application for the extension of time were:

   “1.    When I got RRT refuse letter.  I felt upset.

   2.    I am not familiar with the Australian law at the moment.  So i missed the time to lodge in the application in FMC.

   3.    i have not enough money to pay more money.  So i had to delay.”

4. The substantive grounds of the application were:

   “1.    RRT considered my case unfairly.  They doubt my claim without substantive evidence.

   2.    Procedural Fairness has been denied by RRT.

   3.    RRT did not consider my situation in China.  I will be put in jail if I go back.”

The applicant’s case at trial

1. The applicant appeared at the hearing before the Court on 16 July 2010 with the assistance of an interpreter.  When invited by the Court to make any submissions she felt would assist her, she said through the interpreter words to the effect that in respect of other applicants with what was described as the same conduct, some were granted and some were refused.  She went on to say that it took a long time until she finally made up her mind because she thought it was unfair. 

2. In substance, I take those remarks to mean that the applicant pointed to the fact that other persons making the same or similar allegations as herself had been both successful and unsuccessful in their applications for visa status.  The second remark I took to mean that she had taken a long time before she had decided, in the ultimate, to pursue her application for extension of time, which she had pursued because she thought that the Tribunal’s decision was unfair. 

3. It should be noted that notwithstanding the making of interlocutory orders by Registrar Allaway on 3 February 2010, the applicant has not at any stage filed any amended application giving proper particulars of the grounds of application, a supplementary court book, and/or any written submissions.  Accordingly, as was deposed by Ms Koya of DLA Phillips Fox, solicitors for the first respondent, the first respondent attended to the preparation of the court book on his own. 

4. I mention these matters not to criticise the applicant who, given her language problems and other difficulties, might well have struggled to comply with Registrar Allaway’s orders, but rather to emphasise that the Court has very little material, other than the Tribunal’s decision itself, upon which to evaluate the matters raised by the applicant’s application and application for extension of time. 

Consideration of the application for an extension of time

1. In his response filed on 22 December 2009, the first respondent opposed the application for an extension of time.  The response referred to the case of SZMNO v Minister for Immigration and Citizenship [2009] FCA 797. In that decision, Barker J referred to the well known remarks of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs & Environment (1984) 3 FCR 344, which set out a number of relevant considerations in extension of time applications.

2. I accept the first respondent’s submission that in this case the question of whether an acceptable explanation for the delay has been provided and the question of the merits, such as they may be, of the substantive application are relevant considerations.  I also note the quotation from Jess v Scott (1986) 12 FCR 187 at 195, set out at [12] in SZMNO to this effect:

   “It would require something very persuasive indeed to justify a grant of leave after, for example, a year;  equally, it may be said, something much less significant might justify leave where a party is a few days late.”

3. Here, the delay is of the order of eight months.  While it is clear that the applicant was upset by the decision of the Tribunal, on her own explanation it simply took her a long time to make up her mind to challenge it.  While I accept that the applicant may well be generally unfamiliar with Australian law, the fact is that she has been able to pursue her application from the delegate to the Tribunal and then, ultimately, to this Court. 

4. Although the applicant refers to a lack of funds, it is not apparent how this operated to prevent the application being brought.  All these matters strongly militate against granting an extension of time. 

The merits of the application

1. The substantive grounds set out in the application are wholly unparticularised.  The first ground is that the Tribunal considered the case unfairly and doubted the claim without substantive evidence.  An examination of the Tribunal’s reasons shows, in my opinion, that the Tribunal gave very detailed and comprehensive consideration to the applicant’s claims.  The Tribunal was not obliged to accept the applicant’s claims and tested a number of matters with her.  It concluded that it did not accept the truth of what the applicant was saying.  It was entitled to do so.  Putting the matter at its lowest, the conclusions of the Tribunal on these questions of fact were open to it on the materials and do not in my view reveal any jurisdictional error.  

2. The second ground is denial of procedural fairness.  I see no force in this submission.  Once again, and given the lack of particularity, I would only say that having read the Tribunal’s reasons for decision, I see no basis upon which that it could be fairly said the Tribunal denied procedural fairness to the applicant. 

3. The third ground is that the Tribunal did not consider the applicant’s situation in China and that she would be jailed if she returned.  Once again, in the absence of any particulars, I can only say that having read the Tribunal’s decision, I think the Tribunal did examine the applicant’s situation in China in considerable detail and it was clearly conscious that the applicant was asserting risks of mistreatment upon her return (see in particular paragraphs 85 and 86 of the Tribunal’s decision). 

4. In my view, the submissions of the first respondent that the substantive application is without merit are indeed correct. 

Conclusion

1. Given the inadequacy of the explanations advanced by the applicant for her delay in making her application and the absence of any apparent merit in the substantive application itself, it is my opinion that the application for an extension of time should not be granted and the application should be dismissed with costs. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: 

Date:  17 August 2010