MZYRZ v Minister for Immigration

[2015] FCCA 3540

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZYRZ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3540

Catchwords:
MIGRATION – Application for judicial review of decision – Protection (Class XA) visa application – application dismissed – no matter of principle.

Legislation:

Migration Act 1958 (Cth)

Applicant: MZYRZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 921 of 2015

Judgment of: Judge Riethmuller

Hearing date: 13 December 2015

Date of Last Submission: 18 December 2015

Delivered at: Melbourne

Delivered on: 18 December 2015

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Ms Gangemi

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: No Appearance

ORDERS

1. The application filed 29 April 2015 be dismissed.

2. The Applicant pay the Respondent’s costs fixed at $3416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 921 of 2015

MZYRZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(EX TEMPORE)

1. This is an application for judicial review of a decision of the Refugee Review Tribunal made on 27 September 2011.  The matter has a lengthy procedural history in that proceedings were brought in the Federal Magistrates Court, as this Court was then known, to seek judicial review of the decision of the Refugee Review Tribunal refusing the applicant a protection visa.  Those proceedings came before Federal Magistrate O’Dwyer, as his Honour then was, and ultimately concluded with consent orders dismissing the application made on 17 April 2012.

2. Importantly, the orders were not for leave to withdraw the application and costs, but consent dismissal of the application.  It appears to me that prima facie this creates an estoppel, given that the parties have resolved the issues between themselves and made consent orders.  It is in distinction to leave to withdraw an application, which would leave the issue unresolved.  On this basis alone the current proceedings should be dismissed.

3. Following that, the applicant sought a spouse visa, and sets out in a letter that she hands up to the court which I have marked exhibit 1 in these proceedings, that she thought as a result of marrying in Australia she no longer had need to fear returning to India, and therefore a dismissal of the proceedings was suitable, because she would get a visa on the basis of being married to an Australian.

4. She says that the visa application for the spouse visa did not succeed because ultimately the marriage broke down due to domestic violence.  The issues relating to the spouse visa were then the subject of litigation before this Court, the Federal Court, and the High Court, in various judicial review application decisions.  The fact that there was domestic violence does not, of itself, explain why she would not have received a spouse visa, given that there is a specific exemption in the visa rules to enable a person who has left a relationship due to domestic violence to still obtain a visa.

5. It is not, however, ultimately for me in these proceedings to traverse in some form of review what occurred in the spouse visa cases, which were heard in this court, then on appeal for the Federal Court, and then on a special leave application refused by the High Court. 

6. Putting aside the for the moment the estoppel issue the applicant seeks to commence proceedings again by these proceedings with respect to the original Refugee Review Tribunal decision from 2011. Not surprisingly the Minister opposes any extension of time given that the extension is for effectively three and a half years. The ordinary time limit is 35 days.

7. The cases identify that there are a number of factors that one should ordinarily consider in determining whether to extend time: the amount of time involved; the reasons for delay; prejudice to the applicant and respondent; and whether or not there is an arguable case. 

8. In this case, there was lengthy delay, and whilst there are some reasons for it that may have some plausibility, they do not entirely explain the lengthy delay involved in this particular case.  However, in cases involving refugee visas, or protection visas, the fact that there may be a lengthy delay even without a satisfactory explanation is rarely the most significant factor, because of the seriousness of the litigation and potential consequences to the person.

9. I turn then to consider primarily whether or not the applicant has an arguable case, because even if there were a relatively lengthy delay without adequate explanation, it would be difficult not to grant an extension of time if a person seeking a protection visa had an arguable case. 

10. In this application the applicant can only say that she believes the case was “not looked into deeply” by the Tribunal.  She says that as a result it should be heard again.  She was not able to articulate any complaint about the process the Tribunal adopted, nor the reasons that they gave for their decision.

11. To the extent that the applicant says there are further developments, that evidence is not admissible unless it is evidence that goes to something such as fraud on the tribunal, and so to that extent does not provide a basis for judicial review.  With respect to the complaints about paragraph 119, that paragraph reads as follows:

    For reasons set out above, the Tribunal does not accept that the applicant’s sister was harassed in 2004 and 2005 by boys connected to Avtar Hanery or any other person. If follows that the Tribunal does not accept that those boys killed her father’s friend, Chejit (sic) Singh because he attempted to intervene in that harassment. The Tribunal further notes that the applicant stated that Chenjit Singh’s death was not reported to the police because her father was deliberately targeted and seriously injured in an accident with the truck the day before he was intending to make the police report. When it was pointed out to the applicant that her father appeared to have been injured before speaking to the police, she stated that the boys discovered that her father had intended to make a complaint about Chenjit Singh’s death although she was unable to articulate how this might have happened. The applicant later told the Tribunal that her father intended to report Chenjit Singh’s death to the police but that his family wouldn’t let him because they were scared. At another point in the hearing she stated that Chenjit Singh belonged to a poor family and his family said that they did not wish to get involved in other litigation in case other members of the family were hurt.

12. This seems to be the only example paragraph given to support the claim that the Tribunal had not looked into the matter deeply.  It seems to me that this section of the Tribunal’s reasons does squarely deal with the issue.  The fact that the reasons do not set out at great length precisely what was said in the hearing and the documents does not mean that the Tribunal has not dealt with an issue properly.  Indeed, the whole point of reasons for tribunals and judges is to provide a proper explanation of the reasoning process of the decision maker, not to simply recount everything that has gone on in the proceedings.  With respect to those specific examples, there is no arguable case before me in this matter.

13. The reasons that the Tribunal gave appear to deal with all of the matters that the applicant raised.  In substance, the applicant appears to be seeking a merits review of the decision of the Tribunal refusing to grant her protection visa application.  In these circumstances, the applicant has not established an arguable case, and therefore there seems to be no purpose in giving her an extension of time to bring the proceedings. For this reason, I would also refuse the current application.

14. When one takes this into account, coupled with the very lengthy delay, and the intervening pursuit of an alternative category of visa, it appears to me that the case is overwhelmingly against the applicant, even if there were not already a consent order dismissing the proceedings. I therefore dismiss this application.

[further argument ensued]

1. In this application, the applicant has been entirely unsuccessful.  In the circumstances, it is appropriate that she pay the costs.  It seems to me that this is in fact an interlocutory application, given that it seeks an extension of time. I accept the argument that there is some complexity in this case, and that of course whether or not there is an arguable case needs to be addressed even on an interlocutory basis, however, the scale fee appears to me to be appropriate at $3416.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date:  14 January 2016