MZYII v Minister for Immigration & Citizenship

[2011] FMCA 193

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYII v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 193

MIGRATION – Refugee Review Tribunal – application for an extension of time – no reasonable explanation for delay – poor prospects of success – application dismissed.

Migration Act 1958, ss.351, 417, 426, 477

Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198; [2004] FCA 21
Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118
SZFGO v Minister for Immigration and Citizenship [2008] FCA 1478
Vu vMinister for Immigration and Citizenship [2008] 101 ALD 211; [2008] FCAFC 59

Applicant: MZYII

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 524 of 2010

Judgment of: Riley FM

Hearing date: 10 March 2011

Date of last submission: 10 March 2011

Delivered at: Melbourne

Delivered on: 29 March 2011

REPRESENTATION

Counsel for the Applicant: Thomas Hurley

Solicitors for the Applicant: Nevett Ford

Counsel for the First Respondent: Emily Latif

Solicitors for the First Respondent: Clayton Utz

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Clayton Utz

ORDERS

1. The application for an extension of time filed on 13 April 2010 and amended on 8 March 2011 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 524 of 2010

MZYII

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for an extension of time for the filing of an application for judicial review of a decision of the Refugee Review Tribunal.  Subsections 477(1) and (2) of the Migration Act 1958 provide that:

   (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.

2. In this case, the decision of the Tribunal was dated 3 February 2009.  It was agreed that the thirty-five days in which a review application could be made to this court as of right expired on 10 March 2009.  The application was filed in this court on 13 April 2010.  The application was about 13 months out of time.

3. The applicant relied on her affidavits sworn on 13 April 2010,

   
   

   25 February 2011 and 3 March 2011 in this proceeding and her husband’s affidavit sworn on 13 April 2010 in Federal Magistrates Court proceeding number MLG523 of 2010.  The husband’s affidavit was marked exhibit 1.  The applicant was cross-examined.

4. The factors to be considered in an extension of time application are well known.  They are:

   a)the extent of the delay;

   b)the explanation for the delay;

   c)the prejudice to the applicant in not granting the extension;

   d)the prejudice to the respondent and any other relevant person in granting the extension; and

   e)the applicant’s prospects of success in the substantive application.

Extent of the delay

1. The delay was 13 months.  That is a considerable period where the time limit is 35 days. 

Explanation for the delay

1. The applicant explained her delay as follows.  In her affidavit sworn on 13 April 2010, the applicant said that she adopted her husband’s affidavit.  He said at paragraph 7 of his affidavit that:

   I did not know I could appeal the decision to this Court.

2. However, the applicant acknowledged in cross examination that she had received a letter from the Tribunal dated 4 February 2009 (CB163) which said, in part:

   If you disagree with the Tribunal’s decision, you may have a limited right to seek judicial review in the Courts.  There are strict time limits in which an application for judicial review must be lodged.  You should obtain independent legal advice immediately if you wish to seek judicial review.

3. The applicant said that she was not clear about whether the Federal Court and judicial review were the same thing.[1]  However, she then said in cross-examination that, after receiving the Tribunal’s decision on 4 February 2009, she sought advice from the Asylum Seeker Resource Centre and Legal Aid.  She said:

   everybody was saying it is, anyway, going to be unsuccessful. … even if they go to court ….[2]

   [1] Transcript page 23 line 1

   [2] Transcript page 25 lines 31 and 34.

4. The applicant and her husband then decided to make applications to the Minister under s.417 of the Act. Those applications were made without legal assistance.

5. The applicant applied to the Minister under s.417 on 10 March 2009. That application was refused on 6 July 2009. The applicant became pregnant in November 2009. She lodged a second s.417 application on 9 March 2010. It was refused on 17 March 2010. On 23 March 2010, the applicant was advised that she might have Thalassemia. She was advised to have further blood tests on 12 April 2010. On 13 April 2010, the current application was lodged, albeit with different grounds to those that were ultimately argued.

6. The applicant argued that her s.417 applications and her pregnancy and suspected Thalassemia explained her delay in filing her application to this court.

7. Even if it is accepted that a s.417 application provides a reasonable explanation for a delay in lodging an application in this court, that explanation would only apply up until the refusal of the first s.417 application on 6 July 2009, and the period between the lodgement and refusal of the second application, being the eight days between 9 and 16 March 2010.

8. The first s.417 application does not explain why the applicant did not lodge an application at any time between the refusal of the first s.417 application on 6 July 2009 and the date when the application to this court was lodged on 13 April 2010. That in itself is a delay of about nine months.

9. There is no explanation of how becoming pregnant in November 2009 could have hindered the applicant in lodging an application in this court.  The Thalassemia was not suspected until about 23 March 2010.  In any event, there was no medical evidence that the applicant actually had Thalassemia and no medical evidence about how such a condition might have hindered her in filing an application.

10. However, even if becoming pregnant in November 2009 was an obstacle to lodging an application in this court, the applicant offered no explanation for the delay between the refusal of the first s.417 application on 6 July 2009 and becoming pregnant in about November 2009. That is a delay of about four months.

11. There are numerous cases which consider whether a s.417 application constitutues a reasonable explanation for a delay in lodging a judicial review application. However, it must be emphasised that the Parliament has vested a discretion in the court which is called upon to decide that issue in each particular case. The discretion must be exercised judicially. Some wisdom may be found in previously decided cases. However, the previously decided cases do not establish absolute rules that fetter the court’s discretion in a particular case.

12. Having said that, in Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198; [2004] FCA 21 Goldberg J said at [14], in relation to an application to the Minister:

    This course of conduct, in my view, should properly be characterised as an indication by the applicant that he was prepared to accept that the tribunal’s decision was correct and that he did not intend to challenge that decision further in the court.

13. On the other hand, in SZFGO v Minister for Immigration and Citizenship [2008] FCA 1478, Edmonds J, after referring to the passage cited above from Daniel, said at [17]:

    I very much doubt that what his Honour said in this extract from his reasons was being put as a general statement of principle; more likely, a conclusion drawn from the facts of the case before his Honour.  But if I am wrong, then, with respect, I cannot agree with it.

14. The first respondent relied particularly on Vu vMinister for Immigration and Citizenship [2008] 101 ALD 211; [2008] FCAFC 59. That case concerned an extension of time in which to lodge an appeal from a decision of this court. It might therefore be considered to be a little different to the present matter.

15. In any event, at [29] and [30], Jessup J, with whom Gyles and Besanko JJ agreed, said:

    [29]I do not think that the applicant’s approach to the minister under s 351 of the Act provides an acceptable explanation for his failure to lodge an appeal within time. Indeed, particularly considering the timing of that approach, I am disposed to the view, in the absence of any helpful evidence from the applicant to the contrary, that the applicant’s present attempt to place himself in a position whereby he might lodge an appeal well out of time appears to be a kind of “plan B” to which resort was had once the approach under s 351 proved unsuccessful.

    [30]This is not a case in which the applicant intended to appeal, but misunderstood the nature of his obligations, or in which there was a slip-up or oversight in the office of his solicitors.  The applicant was legally represented throughout, and it could hardly be doubted that the very nature of the proceedings before the Federal Magistrate would have made him, or at least his representatives, keenly aware of the significance of time limits.  Be that as it may, the fact is that there is no evidence before the court which would make inappropriate the inference, which I would draw, that the applicant and his advisors, being full conscious of the time limit provided by the Rules of Court, chose not to appeal within that time.

16. Those two paragraphs make it clear that an application to the Minister under s.351, or its equivalent, s.417, is a matter to be considered in the overall context of all of the circumstances of the case to determine whether the applicant has a reasonable explanation for his or her delay or not. The position is not as simple as a s.417 application is always or is never a sufficient explanation for the delay.

17. The surrounding circumstances are relevant in determining whether the applicant has a reasonable explanation for his delay. Those surrounding circumstances include such matters as whether the applicant was legally represented, whether his or her actions were deliberate and whether he or she filed in this court promptly after the refusal of the s.417 application.

18. In the present case, I do not accept that the applicant does have a reasonable explanation for the delay in lodging her application in this court. She said that she was given legal advice that any application to the court would be unsuccessful. She then made a s.417 application to the Minister. When that application was refused, she took no action between 6 July 2009 and 9 March 2010. Even then, her one relevant action was to lodge another s.417 application. When that was refused on 17 March 2010, the applicant reasonably promptly filed in this court on 13 April 2010.

19. I do not accept that the applicant’s pregnancy, or suspected Thalassemia, hindered the applicant’s ability to lodge an application in this court.  Some women, of course, can become quite ill when they are pregnant.  However, in the present case, there was no medical evidence to that effect, or indeed, any claim to that effect.

Prejudice to the applicant

1. There may be considerable prejudice to the applicant if an extension of time were not granted.  The applicant would be obliged to return to

   
   

   Sri Lanka.  If her claims are true, she may suffer serious harm as a result.

Prejudice to the respondent and others

1. The first respondent did not suggest that he, or anyone else, would suffer any particular prejudice if an extension of time were granted, though, obviously, the public has an interest in the finality of litigation.

Prospects of success

1. The applicant did not pursue the first ground in her amended application filed on 8 March 2011.  The second ground of review in the amended application is:

   The decision of the Tribunal involved a failure to comply with the requirements of section 426 of the Act in that the Tribunal failed to properly consider the request of the Applicant received 1 December 2008 that it call her mother to give evidence.

2. On an extension of time application, it is not appropriate to consider the grounds of review as exhaustively as would be done at a final hearing.  In the present case, there was evidence that the first respondent would wish to challenge if the matter proceeded to a final hearing.  However, those issues were held over pending determination of the extension of time question. 

3. At this stage, it is sufficient to say that the applicant put a good deal of evidence before this court about what her mother would have said if she had been called by the Tribunal.  Most of that evidence was not before the Tribunal.  Therefore, it cannot be considered in determining whether the Tribunal dealt appropriately with the applicant’s request for the Tribunal to receive evidence from the applicant’s mother.  The applicant through her counsel appeared to accept that, and said the evidence simply went to show that it would not be futile to remit the matter to the Tribunal, if that issue arose.

4. In any event, s.426 of the Act provides as follows:

   (1)In the notice under section 425A, the Tribunal must notify the applicant:

   (a)that he or she is invited to appear before the Tribunal to give evidence; and

   (b)     of the effect of subsection (2) of this section.

   (2)The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

   (3)If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.

5. The leading case dealing with that section, or its equivalent, s.361, is Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118. In that case, Kenny and Lander JJ, with whom Spender J agreed, said at [37] and [38]:

   [37]It is in keeping with the tribunal’s inquisitorial nature that the tribunal does not err if it decides that, notwithstanding the applicant wants oral evidence to be obtained from persons named in a notice under s 361(2), it decides not to obtain such evidence, always providing that it acts in conformity with s 361(3) of the Act and has regard to the notice that the applicant has given.  In this circumstance, there is no obligation on the tribunal to take oral evidence from anyone other than the applicant.

   [38]It does not follow from this, however, that the appeal in this case should be upheld.  By virtue of s 361(3), the tribunal is obliged to have regard to any notice given by an applicant under s 361(2) or (2A) of the Act.  This means that the tribunal must genuinely apply its mind to the contents of the notice and, in particular, to the question whether it should take the oral evidence of the nominated individuals in accordance with the applicant’s wishes.  The tribunal must not merely go through the motions of considering the applicant’s wishes as expressed in the notice.  As the respondents’ counsel said, the authorities establish that the invitation to appear before the tribunal must be “real and meaningful and not just an empty gesture”: NALQ at [30]; SCAR at [37] and Mazhar at [31]. It follows that the consideration that the tribunal gives to the wishes of the applicant concerning the evidence to be taken at the hearing must also be genuine. The tribunal must not decline to comply with the applicant’s wishes capriciously, but must take account of such relevant matters as the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness (cf W360/01A v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 449; [2002] FCAFC 211 (W360/01A) at [2] per Lee and Finklestein JJ and [30]-[32] per Carr J), the sufficiency of any written evidence that has already been given by a witness, and the length of time that would afford the applicant a fair opportunity to put his or her case before the tribunal.  These considerations flow from the nature of the tribunal’s overarching objective, which is to provide a review that is “fair, just, economical, informal and quick”: see s 353(1).  The tribunal must bear in mind this statutory objective when considering the weight to be given these matters.

6. In the present case, the applicant responded to the invitation to appear before the Tribunal by saying, among other things, that she wanted the Tribunal to take evidence from her mother in Sri Lanka:

   to confirm all the information provided in my application and to witness my life is in danger.[3]

   [3] CB159

7. The applicant argued before this court that her request needed to be assessed in the context of all of the information contained in her application as it stood before the Tribunal. 

8. Relevantly, the applicant claimed that she had a son in Sri Lanka by a man from Thailand whose whereabouts were unknown.  She said that she became engaged in Sri Lanka to a Mr X, who came from a rich and powerful family. Mr X agreed to pay money into the applicant’s mother’s bank account for the applicant’s son’s upkeep in exchange for the applicant nominating Mr X as her dependant in a student visa application. 

9. The applicant then came to Australia as a student with Mr X as her dependent fiancé.  On route, “the Sri Lankan airport” stopped and questioned the applicant and her fiancé.  He made one telephone call which resulted in the applicant and her fiancé being allowed to go on their way.[4]

   [4] CB89

10. Mr X left the applicant after two months in Australia.  The applicant then told the department that Mr X had presented false documents in support of his visa application. The applicant said her fiancé’s real name was Mr Y.  (Subsequently, the applicant has said the fiancé’s real name was Mr Z, a nephew of the President of Sri Lanka, but that was not explained to the Tribunal.) 

11. The applicant said that she feared harm from her former fiancé as revenge for her telling the Department that he had presented false documents.  The applicant said that her fiancé’s family were rich and powerful and they would kill her if she returned to Sri Lanka.

12. The applicant said that her fiancé’s rich and powerful family brought false charges of theft against her mother, related to the money they paid for the applicant’s son’s upkeep.  The applicant’s mother was imprisoned for a month and two weeks as a result.

13. The applicant provided a transcript of certain passages of the hearing before the Tribunal that the applicant said touched on the issues in this matter.  The relevant passages are as follows:

    1.Member: I am not sure at this moment whether I will ring your mother or not… go through the preliminaries first…In terms of ringing your mother, the issue is very simple… I don’t quite know exactly what you want her to testify about, but if I believe it is necessary for her to testify then we will call her

    …

    32.Member:  You also said that your mother was jailed when was she jailed

    33.    SD:  like two months back

    34.    Member:  For how long

    35.    SD: she was in like one month and two weeks

    36.Member:  What happened with your son while she was in jail

    37.SD: there was nobody to take care of my son at that time… my big aunty she took my son for the period when my mum was in jail

    38.    Member: Why was she jailed

    39.SD: because my boyfriend they paid my school fees $5,000 in this country they paid my air ticket they paid for my everything and they kept some money in my account in my country before I left because they also knew that I had my son and I was saying that I can’t go because I had to provide everything for my son… he said ok ok I promise I will give you money so then he put some money in my account… it was enough for like one year because I wasn’t supposed to work here fulltime I had to study instead.  and I had addition like [$600] in my account it was enough for the time being for cooking and school and for my mum and everything… my mum has seen this gentleman in Sri Lanka one month but that means he has gone back to Sir Lanka and his family they have put a case against my mum that she took all the money.

    40.Member: So hang on, so [inaudible] has gone back to

    
    

    Sri Lanka

    41.    SD: I really don’t know but my mum says she saw him

    42.    Member: When did she say that

    43.    SD: day before actually

    44.    Member: So she saw him recently

    45.SD: she said that she saw him she said that it’s him I think it’s him

    46.Member: So for this sort of amount of money why was your mother jailed for a month

    47.SD: they were trying to recover all their money because I don’t know… they want to recover all of their costs they think I have a very good job here, they don’t know that I have this thing

    48.Member: But from my knowledge of the way Sri Lanka judicial system works this is very fast for a case to come up

    49.SD: actually it’s like this [inaudible] father he’s a very well known businessman in my country they know him in my country Sri Lanka you can do anything if you have…

    50.    Member: So we do know what his surname is…

    51.    SD: oh I know his surname yes…but it is fake…

    …

    57.Member:…if you were to go back I understand that there are issues that people deal with differently in Sri Lanka I am not suggesting anything else and that your mother has suffered because of this thing as well and your son probably as well because he has been left without his grandmother but the point is if I consider these issues I cannot call it persecution they are bad things that’s happening to people but… it’s not persecution in the way that the refugees convention intended it.  That’s where we’re at this morning I want you to know that because I just can’t see that you would be persecuted in the way that the convention understands it

    …

    60.Member: If we ring your mother she is going to say to me is she not that she was in jail because of this… [inaudible] there’s no point telling me I don’t have a kind of saying yeah I know you’re not saying the truth so I don’t know whether you think its worth ringing your mother

    61.    SD: yeah, because

    62.Member: To achieve I don’t know what given what I have already explained to you

    63.SD: my mum because of me she was very proud in my country I was educated have a good job doing nothing problem with her only I have a child without a man so she cried enough because I put her as a witness because last time when there was a hearing.. she says that I have not given any proof to prove that my mum was in jail but it takes time the bail documents everything in Sri Lanka it takes time to come out so she has done some work with the lawyer so has took the documents so that’s why I wanted to witness her because she was the person in jail

    64.Member: I understand but even if we prove that your mother was in the jail

    65.    SD: it’s not going to effect this I know

    66.Member: Exactly, so I’m just wondering whether it’s worth bothering her and you know in Sri Lanka it’s early in the morning as well… I would have put the hearing later but given that I only got this in response to the hearing so it’s up to you I don’t mind calling your mother and talking to her its just that I don’t see whether that testimony is going to get us any further in your case in terms of the protection visa but if you want me to call her there’s no problem

    67.SD: no I really don’t want to call her I don’t want to bother her but I need – because they said that I lied

    68.Member: Look, I understand you are in an unfortunate situation I can see that and but I think I’ve explained what the issues are with the refugees convention I won’t repeat is there anything else you want to tell me

    69.    SD: no, nothing

1. In relation to these matters, the Tribunal made the following findings:

   31.The applicant has claimed that she fears harm from her ex fiancé and his family. These circumstances involve the projected attitude and actions of the family of the person she came to Australia with and concerns a private matter between individuals in terms of their personal relationship and the apparent breakdown of that relationship. The Tribunal accepts that the applicant’s former fiancé has threatened her and that he broke into her room and stole her passport. The applicant has also claimed that his family in Australia has followed and attacked her; the applicant did not provide any further information about these claims at the hearing. The Tribunal does not accept these claims as they are vague and lacking in detail. While the Tribunal is cognizant of the possibility that these claims are multifaceted, the evidence does not indicate that any harm which the applicant might come to as a result of the breakdown in relationship with her former fiancé has been claimed to occur for the essential and significant reason of race, religion, nationality, political opinion, or because of membership of a particular social group. The Tribunal finds that any violence perpetrated in these circumstances involves personal animosity and the motivation of the aggressor cannot be attributed, on the evidence, to a Convention reason.

   32.The Tribunal has considered whether there would be discriminatory withholding of state protection in relation to her fear of harm by her former fiancé and his family (non-state agents) on return to Sri Lanka. The Tribunal notes that a dispute appears to have arisen regarding the financial arrangements with the applicant’s mother to do with the relationship and that her mother was jailed for a month in relation to this dispute. The Tribunal accepts that this has occurred and finds that this is a clear indication that recourse through legal means has already been taken by the family of the applicant’s former fiancé. There is no evidence before the Tribunal to indicate that she would not have access to protection from the authorities if she fears harm from her former fiancé’s family or that this protection would be denied her for a Convention reason.

2. That is, the Tribunal accepted that the applicant’s mother had been imprisoned in relation to a dispute involving the applicant’s former fiancé’s family.  The Tribunal did not accept that any harm the applicant feared from her former fiancé or his family was Convention related.  The Tribunal did not accept that state protection would be withheld from the applicant for a Convention reason.

3. It seems to me that the transcript of the excerpts of the Tribunal hearing shows that the Tribunal did genuinely consider the applicant’s request to take evidence from her mother.  The Tribunal gave the applicant a number of opportunities to explain how the mother’s evidence could add to her case.  The applicant herself said that her mother’s evidence would not affect the matter, and did not press the issue. 

4. Reading between the lines, it seems that during the course of the hearing, the Tribunal had formed at least a preliminary view that the applicant’s mother had in fact been imprisoned for the reasons claimed but did not accept that there was any Convention nexus.  In those circumstances, the Tribunal fairly concluded that there was nothing to be gained by calling the applicant’s mother. 

5. Accordingly, I consider that the applicant’s prospects of success on the substantive application are poor.

Conclusion

1. The prejudice to the applicant in the extension of time being refused must be balanced against the fact that the applicant has poor prospects of success in the substantive application and does not have a reasonable explanation for the delay in lodging her application in this court.  In my view, the balance is tipped heavily against an extension of time being granted.  The application will be dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate: 

Date:  29 March 2011