MZYVK v Minister for Immigration
[2012] FMCA 776
•31 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYVK & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 776 |
| MIGRATION – Judicial review of Refugee Review Tribunal decision – application for extension of time pursuant to s.477(2) of the Migration Act 1958 – application refused. |
| Migration Act 1958 (Cth), ss.424A, 477 |
| Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs (2005) 216 ALR 1 Fisher v Minister for Immigration & Citizenship (2007) 162 FCR 299 Li v Minister for Immigration & Anor [2011] FMCA 12 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 SZLPI v Minister for Immigration and Citizenship [2008] FCA 1841 SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 SZNZU v Minister for Immigration & Anor [2009] FMCA 366 |
| First Applicant: | MZYVK |
| Second Applicant: | MZYVL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 181 of 2012 |
| Judgment of: | Hartnett FM |
| Hearing date: | 19 July 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 31 August 2012 |
REPRESENTATION
| The First Applicant: | In person |
| The Second Applicant: | In person |
| Solicitors for the First Respondent: | Sparke Helmore (Ms Whittemore on behalf of the First Respondent) |
THE COURT ORDERS THAT:
The applicants’ application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.
The applicants pay the first respondent’s costs fixed in the sum of $5,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 181 of 2012
| MZYVK |
First Applicant
| MZYVL |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By application filed 22 February 2012 the applicants seek judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made 23 September 2011. The Tribunal affirmed a decision of a delegate of the first respondent dated 31 December 2010 to refuse to grant a Protection (Class XA) visa to the applicants.
The application was filed 117 days outside the time provided for in s.477(1) of the Migration Act 1958 (Cth) (‘the Act’). The applicants sought an extension of time in their application filed 22 February 2012, pursuant to s.477(2) of the Act on the grounds stated in the application being:
“The applicants were never aware that the Tribunal’s decision could be challenged.
2. The applicants could not get any professional help after the RTT decision was made”
In affidavits sworn by the first and second applicants on 22 February 2012 each applicant states further that:
“6. I have genuine fear of suffering persecution if I am returned to Malaysia and I ask the Court to grant me extension of time as may be required.”
The application for an extension of time is opposed by the first respondent, as is the substantive application as set out in response filed 13 March 2012.
The application for judicial review was filed well in excess of the 35 day period provided for in the Act, being 35 days after the date of the Tribunal decision. The applicants require firstly this Court to grant an extension of time pursuant to s.477(2) of the Act before proceeding with their substantive application made pursuant to s.476 of the Act.
Pursuant to s.477(1) of the Act, the following is required:-
“(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.”
An extension of time will only be granted in the following circumstances:-
“s. 477(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.”
The applicants have satisfied the requirement set out in s.477(2)(a) of the Act as set out in the preceding paragraph. There remains to be considered whether this Court is satisfied that it is necessary in the interests of the administration of justice to make the order extending time. The factors to be considered include:-
“the extent of the delay, the reasons for it, any prejudice to the respondent, the impact on the applicant if time is not extended, the interests of the public at large, any exercise of the Court’s discretion, and the merits of the substantive application (not an exhaustive list)” (Li v Minister for Immigration & Anor [2011] FMCA 12 at [35]; SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [44]; SZNZU v Minister for Immigration & Anor [2009] FMCA 366 at [55]).
“consideration not only of the reasons for not meeting the original time limit but also whether the application, were the extension of time to be granted, would have any prospect of success” (Fisher v Minister for Immigration & Citizenship (2007) 162 FCR 299).
A determination of the extension of time application is a threshold question.
The applicants’ justification for their delay in making this application is inadequate. The period of delay is significant and the applicants have not put before the Court any reasonable explanation as to such significant delay. No other evidence supports the assertions made by them in their application.
As to the substantive application, for the reasons which follow, I do not consider it to have any merit. This is a significant consideration in this application for leave out of time and leads to the conclusion that the Court’s discretion to extend time should be exercised against the applicants.
Background
The applicants who are husband and wife and citizens of Malaysia, arrived in Australia on 13 August 2010 and made applications for Protection (Class XA) visas on 12 November 2010.
On 31 December 2010, a delegate of the Minister for Immigration and Citizenship refused to grant the applicants Protection (Class XA) visas. On 27 January 2011, the applicants lodged an application for review with the Tribunal. They appointed a migration agent as their representative. The applicants attended a hearing on 4 May 2011 and a subsequent hearing on 6 May 2011. An interpreter in the Malaysian Mandarin language was available to assist them. At this second hearing, the Tribunal put inconsistencies in the evidence given by the applicants to the applicant wife. Later in letters dated 3 June 2011, the Tribunal wrote separately to each applicant pursuant to s.424A of the Act inviting them to give comments or a response to inconsistencies in the evidence provided by them at the Tribunal hearings. A third hearing occurred on 10 August 2011 wherein, amongst other things, relevant country information was put to the applicants. A further letter of 12 August 2011 was then sent to both applicants pursuant to s.424A of the Act inviting them to give comments or a response to inconsistencies in the evidence provided by them at the Tribunal hearings.
The Tribunal’s findings as to the evidence of the applicants are succinctly set out in one part of the first respondent’s outline of submissions filed 5 July 2012 and are as follows:-
“25. The Tribunal accepted that the applicants were followers of Yi Guan Dao.
26. The Tribunal accepted that the applicant wife’s brother was married to [a] Mr Taib’s daughter and that Mr Taib had demanded that her parent’s fulfil their promise that his son could marry the applicant wife in 2000 and again in 2007. The Tribunal accepted that Mr Taib became angry when he discovered that the applicants were married. The Tribunal found, however, that on her evidence, the applicant wife was no longer concerned that she would be forced to marry Mr Taib’s son and concluded that she had no subjective fear of this occurring on her return to Malaysia.
27. The Tribunal did not accept that the applicants or their daughters would be forced to convert to Islam, or that the applicants’ daughter would be subject to female genital mutilation, on the basis of [country information] before it … which indicated that adults could not be compelled to convert and children could not be compelled to convert without the consent of at least one Islamic parent.
28. The Tribunal did not accept that Mr Taib had harassed either of the applicants at their workplaces in light of inconsistencies in their written evidence to the Department and oral evidence to the Tribunal.
29. The Tribunal did accept that Mr Taib had destroyed an idol in the applicant wife’s parent’s home, but found that the applicants had established their own separate household in 2006 and so this event did not constitute a threat to the applicants in the reasonably foreseeable future... The Tribunal did not accept that Mr Taib or his associates had visited the applicant’s home. The Tribunal found that the applicants’ evidence about these events was inconsistent and implausible and that its concerns were not overcome by photographs the applicant had submitted of a destroyed altar in their home.
30. The Tribunal did not accept that the applicants had been harassed or assaulted in Kuala Lumpur by the religious police, Mr Taib or any of his associates, finding that the applicants had given inconsistent evidence about these claims. The Tribunal had regards to the police report and photographs of the applicant husband’s injuries, but as the photographs did not detail when and where the injuries occurred and the police report was only produced at the third Tribunal hearing, the Tribunal afforded these documents little weight.
31. As the Tribunal rejected that the [applicants] had ever been harassed by Mr Taib, it did not accept that they went into hiding in Sungai Petani. The Tribunal accepted that the applicant husband may have believed that he had been followed home from work and that the applicant wife had reported him missing, but found it was not satisfied by the applicants’ evidence or the police report submitted that he was followed by Mr Taib for reasons of his religion... Nor was the Tribunal satisfied that the applicant husband’s car had been vandalised in Penang on the basis of inconsistencies in the applicants’ evidence about this claim.
32. The Tribunal had regard to [country information] on Yi Guan Dao and the applicants’ evidence that they had not experienced difficulty practising their faith prior to their troubles with Mr Taib and found that they did not face a real chance of persecution on account of their religion.
33. The Tribunal also had regard to [country information] and found that whilst the applicants may face some discrimination and disadvantage on account of their Chinese ethnicity, that discrimination would not amount to ‘serious harm’ for the purposes of s.91R(1)(b) of the Act.
34. The Tribunal concluded that there was no real chance that the applicants would face serious harm on account of their religion, or for any other Convention reason, on their return to Malaysia and found that [their] fear of harm was not well founded.”
The grounds of application for judicial review as set out in the application filed with this Court on 22 February 2012 are as follows:-
“1. The decision [of] the Refugee Review Tribunal is affected by its failure to find Applicants’ right of religious freedom being violated at state level – The Country Report on which its based its decision generally touched on the subject at the federal level.
2. The decision of the Tribunal is affected by its failure to consider personal harms inflicted upon the applicants; and that the State failed to protect them.”
No jurisdictional error appears in the approach to the hearing taken by the Tribunal nor in its findings. The selection and weight of relevant country information is a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11] –[13]; Applicant NABD of 2002 vMinister for Immigration & Multicultural Affairs (2005) 216 ALR 1 at 8 per Gleeson CJ; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 at [81] – [84]).
No error is revealed in the Tribunal’s approach and its adverse credibility findings were open to it as a sole arbiter of the facts and evidence. The Tribunal was not required to accept the applicants’ claims at face value and the weight to be given to their claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). Further, the question of whether effective State protection is available only arises if the Tribunal accepts the applicants had a well-founded fear of harm from non-State agents. As the Tribunal concluded that the applicants’ fear of harm was not well-founded there was no ensuing obligation on the Tribunal to consider the question of whether effective State protection was available to the applicants (SZLPI v Minister for Immigration and Citizenship [2008] FCA 1841).
The application for an extension of time will be refused.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 31 August 2012
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