MZYHQ v Minister for Immigration
[2010] FMCA 277
•7 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYHQ v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 277 |
| MIGRATION – Application for an extension of time to lodge application for judicial review – reason for late lodgement not accepted – application has no reasonable chance of success – extension refused. |
| Migration Act 1958 (Cth), ss.417, 424, 474, 477 Acts Interpretation Act 1901, s.36 |
| Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132 Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Devries v Australian National Railways Commission (1993) 177 CLR 472 Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC) Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR Abebe v Commonwealth (1999) 197 CLR 510 at [137] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Lee vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 SHUB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 137 FCR 43 Yao-Jing Lee v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 |
| Applicant: | MZYHQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG101 of 2010 |
| Judgment of: | Turner FM |
| Hearing date: | 7 April 2010 |
| Date of Last Submission: | 7 April 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 7 April 2010 |
REPRESENTATION
| The Applicant appearing In Person with the assistance of a Punjabi interpreter |
| Counsel for the Respondent: | Ms Holt |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application filed 25 January 2010 is dismissed.
That the applicant pay the first respondent’s costs fixed at $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 101 of 2010
| MZYHQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore and Revised)
The applicant arrived in Australia on 16 September 2008 on a visitors visa (Court Book “CB” 21). The applicant had arrived in Australia previously on a visitor’s visa on 8 July 2008 to attend the World Youth Day (“WYD”) and returned to India on 22 July 2008 (CB 21). The applicant returned to Australia on 16 September 2008 and applied for a Protection (Class XA) Visa on 16 October 2008 (CB 19).
By decision dated 27 November 2008 a Delegate of the Minister refused to grant the visa.
The applicant applied to the Refugee Review Tribunal (the “RRT”) on 22 December 2008 for a review of the delegate’s decision (CB 96).
By decision dated 7 April 2009 – the RRT affirmed the decision of the Delegate not to grant the applicant a visa.
The applicant now seeks judicial review of the decision of the RRT.
The applicant lodged his application with this Court on 25 January 2010.
Application for an extension of time
Section 477, the Migration Act 1958 (the “Act”) provides:
(1)An application to the Federal Magistrates 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 Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Magistrates 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 Magistrates 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)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)the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the written statement under subsection 368(1) or 430(1); or
(c)in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the oral decision; 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.
Section 477(1) provides that the application to the Court must be made within 35 days of the date of the migration decision. The decision of the RRT is dated 7 April 2009 (CB 120). The applicant lodged his application for judicial review by the Court on 25 January 2010. Pursuant to s.477 of the Act, the last date for filing was 35 days from
8 April 2009 inclusive. (The Court refers to s.36 of the Acts Interpretation Act 1901). The last date for filing was therefore 12 May 2009. The application therefore is more than eight months out of time.
The Court may extend the 35-day period as it considers appropriate if:
a)An application for that order 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 the order; and
b)The Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The applicant has applied in writing for an extension of time, stating that it is necessary in the interests of administration of justice to extend time, because he “was not aware of court procedure and there was no assistance.”
In assessing whether the Court is satisfied that it is necessary in the interests of the administration of justice to make an order extending time, the Court needs to consider first the reasons given by the applicant. The Court then needs to consider whether, if an extension is granted, the application would have a reasonable change of success, including whether the decision of the RRT is free from jurisdictional error.
The Court does not accept the applicant’s stated reason for not lodging his application for judicial review by 12 May 2009. In particular, the Court does not accept that the applicant was “not aware of the Court procedure” as stated in his application to the Court. In the applicant’s application to the Minister on 21 May 2009, the applicant stated:
“I have sought advice and as an appeal to Federal Court has good chance of success, but it is beyond my financial capacity. Thus I have been advised the most favourable course of action is this final desperate appeal to your Honour to use the power of s.417 of the Migration Act…to substitute a more favourable decision.” (Annexure “SAT-3” to the affidavit of Sarah Ainslie Thompson sworn 24 March 2010)
The Court notes that the applicant was assisted in the preparation of his application to the RRT by a registered migration agent. The Court refers to Court Book p.123 at point 4, where that is stated.
The applicant clearly had received advice and assistance on procedures available under the Act and, instead of seeking judicial review which “was beyond his financial capacity”, he decided to apply to the Minister pursuant to section 417 of the Act. The application pursuant to section 417 was refused by the Minister by letter dated 14 December 2009 [Annexure “SAT-4” to the affidavit of Thompson (supra)]. It was only after receipt of that letter dated 14 December 2009 that the applicant lodged his application for judicial review on 25 January 2010.
The applicant lodged his application out of time because of his informed choice, after receiving advice to lodge an application under s.417 of the Act. A request to the Minister pursuant to s.417 is not an acceptable explanation for delay in seeking judicial review. The Court refers to the decisions in Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132 at [7] and Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [29]. The Court therefore rejects the applicant’s stated reason for late lodgement. It was lodged late because the applicant chose a different course of action. The applicant was aware of his right to apply to the Court, but chose not to because it was beyond his financial capacity.
The Court is not satisfied that the reason stated by the applicant shows that it is necessary in the administration of justice to make an order extending the 35 day period. The application was lodged out of time because the applicant, on advice, chose not to lodge it.
The Court will now consider the grounds in the applicant’s application to ascertain whether they would have a reasonable chance of success, in particular, whether there has been a jurisdictional error.
Ground one is “jurisdictional error” with no particulars provided. Ground two is “Facts of the matter dealt wrongly (incorrect) as I am a Christian, which the Tribunal did not believe.”
The Court invited the applicant to expand on those grounds today, but nothing of substance was added.
Ground one – jurisdictional error
This ground is not particularised. The applicant has not established a jurisdictional error.
In support of this ground, the applicant merely states that he complains about findings of fact by the Tribunal. The applicant was invited to appear at the hearing before the RRT (CB 107). The applicant responded that he would appear and may have witnesses (CB 114). The applicant appeared before the Tribunal on 22 January 2009 with the assistance of an interpreter (CB 124.5). The applicant did not call witnesses in support of his case.
At that hearing, the RRT informed the applicant that as his evidence in relation to his membership of St Joseph’s Church and of St Francis’ Church was inconsistent, that may cause the Tribunal to form the view that he was not a credible witness and form the view that his claims were not true. Pursuant to s.424AA of the Act the Tribunal invited him to comment or respond to information or to request an adjournment in order to respond. The applicant requested an adjournment of 10 minutes and then responded (CB 124-125 at [29]).
The RRT told the applicant at the hearing that, as his evidence in relation to the ownership of the grocery shop in which he worked was inconsistent with statements in his application for a visitor’s visa, that may cause the RRT to form the view that he was not a credible witness and that his claims were not true. The RRT invited him to respond or to request an adjournment in order to respond. The applicant elected to respond immediately (CB 125 at [30]).
The Tribunal then found that the applicant’s evidence in his application for a protection visa and his oral evidence at the hearing in relation to his claim of being attacked on 24 December 2007 was inconsistent and that the incident had been fabricated by the applicant for the purposes of his claim for protection (CB 127.6). That information had been given by the applicant for the purposes of the application for review and is covered by the exemption in s.424A(3)(b).
The Tribunal then found that the evidence in the applicant’s application for a protection visa and his oral evidence at the hearing in relation to a threat he received early in July 2008 when he was walking along the road outside his village was “significantly inconsistent” (CB 127.7). That material was also covered by the exception in s.424A(3)(b). In any event, the Tribunal was not obliged to comply with s.424A, as it had complied with s.424AA. Section 424A(2)(a) reads as follows:
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA
A breach of s.424A or 424AA has not been established. A denial of procedural fairness has not been established. A jurisdictional error has not been established. Ground one of the application is dismissed.
Ground two
Ground two claims errors of fact and complains that the applicant was not believed. The RRT found that the applicant lacks credibility
(CB 126.9). The RRT sets out its reasons for that find including inconsistent evidence about who owned the grocery shop (CB 126.9). The RRT found that the applicant’s evidence about which church he attended was inconsistent (CB 127.2). The RRT found that that the applicant’s evidence about an alleged attack on 24 December 2007 had been fabricated (CB 127.5).
The RRT found that the applicant’s statement in his application about being chased by a car in early July 2008 was inconsistent with his evidence at the hearing (CB 127.7). Those findings of fact were open to the RRT on the material before it and are not amenable to review. The decision of the Court will contain a number of quotes from cases as follows.
In W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703, Tamberlin and R.D Nicholson JJ stated at [64]:
“The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding”
The Court does not find that the probabilities here are against the adverse finding of credibility. In Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; ALR 641 at 646 the High Court stated:
“If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
The Court does not make such findings here.
The Court refers to the following decisions:
“The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence: If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event then reason for disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged. Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 McHugh J at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v MIMA (1998) 86 FCR 547 (FC) at 558-559; W148/00A v MIMA (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let along a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].”
The adverse finding of credibility therefore stands. The RRT found also that the applicant was not harmed because he was poor as claimed in his application for a protection visa (CB 124.2) as he stated at
the hearing that he was not persecuted because he was poor
(CB 125.10 and 127.9).
The RRT found that the applicant is not a Christian as claimed and he was not targeted by members of the Sikh community.
The RRT found that the applicant does not face a real chance of suffering serious harm now or in the reasonably foreseeable future for reasons of his religion or because he is poor or for any other Convention ground (CB 128.1).
The RRT was satisfied that the applicant has not suffered persecution in the past or that he has a well founded fear of persecution, within the meaning of the Convention, if he returns to India now or in the reasonably foreseeable future (CB 128.2).
The RRT found that the applicant does not face a real chance of persecution for reason of his religion or his membership of a particular social group, namely a poor person or for any other Convention ground in the reasonably foreseeable future (CB 128.3).
All of the above findings of fact were open to the RRT on the material before it and are not amenable to review.
The decision of the Court will then obtain quotes from cases as follows: In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided as follows:
“To engage in fact-finding about the merits of the appellant’s case is no part of the function of the Court…It is necessary for the appellants to show jurisdictional error on the part of the Tribunal if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.”
As stated by the Federal Court of Australia in Lee vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]:
“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”
The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:
Decisions of the tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as the Attorney-General (NSW) v Quin (1990) 170CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76, errors of fact do not give rise to jurisdictional errors.
The Court finds that the issues the applicant seeks to agitate in this case are no more than an impermissible attack on the factual findings of the Tribunal. The challenge is no more than an invitation to review the merits. The authorities make clear that the making of findings of fact is uniquely a matter for the decision-maker. In SHUB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 137 FCR 43, the Full Court at [12] quoted from a passage of Selway J as follows:
“The appellant asked the court to undertake a review on the merits of the decision of the tribunal. The court has no jurisdiction to do so.”
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making. ( Yao-Jing Lee v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.
A decision-maker is not required to make the appellant’s case for him or her – Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155.
Ground two of the applicant’s application is no more than an impermissible attempt to review the findings of fact by the Tribunal. Ground two is dismissed.
The Court finds that the Tribunal’s decision is a privative clause decision that has not be infected with jurisdictional error. In such circumstances and pursuant to s.474 of the Act, there will be no jurisdiction for this Court to interfere. There is therefore no reasonable chance that the applicant’s application would succeed, if an order extending the time for lodgement was made. The requirements for an extension under s.477 of the Act do not exist.
The Court therefore does not find that it is necessary in the interests of the administration of justice to make the order extending the 35 day period.
The application for an extension of time is dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Erin Firns
Date:
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