MZYWK v Minister for Immigration
[2012] FMCA 802
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYWK v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 802 |
| MIGRATION – s.477(1) and s.477(2) – acceptable explanation for delay – merit of the substantive application – application to extend time dismissed. |
| Migration Act 1958 (Cth), ss.477(1), 477(2), 422B, 424A, 425, 426A |
| Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 |
| Applicant: | MZYWK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 304 of 2012 |
| Judgment of: | Whelan FM |
| Hearing date: | 23 August 2012 |
| Date of Last Submission: | 23 August 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 23 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondents: | Ms Holt |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application for an extension of time pursuant to s.477(2) of the Migration Act 1958 is dismissed.
The Application filed 19 March 2012 is dismissed as incompetent pursuant to s.477(1) of the Migration Act 1958.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 304 of 2012
| MZYWK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 6 February 2012. The application does not actually indicate the final orders being sought by the Applicant. The application was filed on 19 March 2012. The Applicant, therefore, failed to comply with the requirements of s.477(1) of the Migration Act 1958 (“the Act”). The Applicant has, however, made an application in writing for an extension of time. The Court must be satisfied that it is necessary in the interest of the administration of justice to make an order extending the period of time specified in s.477(1) of the Act.
The Applicant provided the following written reasons in support of the application for an extension of time:
·First, that he had read the instruction page but could not fill in the application;
·Second, that he went to Legal Aid in Dandenong, but no one there could help him fill out his application and they just gave him information; and
·Third, that he filed the application by himself as far as he understood it.
Both the Federal Court[1] and this Court have adopted the principle set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen[2] in determining whether an extension of time should be granted. Those principles are these:
(1)Applications for an extension of time are not to be granted unless it is proper to do so. The legislative time limits are not to be ignored;
(2)There must be some acceptable explanation for the delay;
(3)Any prejudice to the respondent in defending the proceedings caused by the delay is a material factor mitigating against the granting of an extension;
(4)The mere absence of prejudice to the respondent is not enough to justify the grant of an extension; and
(5)The merit of the substantive application is to be taken into account in considering whether an extension is to be granted.
[1] SZMNO v Minister for Immigration and Citizenship [2009] FCA 797.
[2] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.
In this case the First Respondent agrees that principles 1, 2 and 5 are the principles that should be considered by the Court. I accept that those are the relevant considerations for my determination.
Background
I will go firstly to the background of this matter, and then to the explanation that the Applicant has provided.
The Applicant is a citizen of Nepal who arrived in Australia on 6 December 2008 on a student visa. On 24 May 2011, he filed an application with the Department of Immigration and Citizenship (“the Department”) for a protection visa and provided documents in support of that. On 11 July 2011, a delegate of the Minister invited the Applicant to attend an interview, which he did on 10 August 2011 and provided further documentation on that occasion.
On 19 August 2011, the delegate made a decision to refuse to grant a protection visa to the Applicant. On 27 September 2011, the Applicant applied to the Tribunal for a merits review of the delegate’s decision. On 3 January 2012, the Tribunal sent the Applicant a letter inviting him to appear before the Tribunal on 6 February 2012. The Applicant did not attend that hearing. On 6 February, the Tribunal made a decision affirming the delegate’s decision under review.
The Applicant’s explanation for delay in lodging his application to this Court appears to rely on his difficulty in filling out the form and obtaining assistance to do so.
The form makes it clear that an extension of time is required if the application is not lodged within 35 days of the date of the migration decision. The Applicant does not say when he first obtained the form, but difficulty in completing is not, in my view, an acceptable explanation for delay in and of itself.
I therefore turn to the second issue which is the question of merit. The Applicant gives as his grounds for review of the decision of the Refugee Review Tribunal the following:
1. I am not happy about the decision gave me by RRT.
2. The reasons what I put in my application they weren’t satisfied and they refuse my protection visa.
3. That’s why, I am going to review their decision in Magistrate Court. I am hoping I can get some good response from here so, I can stay in Australia without fear.[3]
[3] Application filed 19 March 2012.
The Applicant was given an opportunity to amend his application and to provide written submissions. He did not do so. He filed an affidavit on 2 July 2012 enclosing certain documents on which he relied. He was also given the opportunity at this hearing to address the Court. In doing so, he has raised nothing new in addition to the material already before the Court.
The Tribunal’s decision
The Tribunal in its decision referred to the Department’s file which included the delegate’s decision, the material referred to in the delegate’s decision and other material available to the Tribunal.
The Tribunal set out the Applicant’s evidence and his claims, and also the delegate’s reason for decision. The Tribunal was satisfied that the Applicant had been invited to appear before the Tribunal in accordance with s.425 of the Act and that no response had been received from the Applicant or an application for any adjournment. The Tribunal determined for the purposes of s.426A of the Act to make a decision on the evidence before it without taking any additional action to enable the Applicant to appear.
The Tribunal found that the Applicant was a national of Nepal. The Tribunal accepted that if the Applicant’s claims were made out that they were capable of bringing him within the scope of the Convention for the reasons claimed. However, the Tribunal noted that the Applicant had provided very few details and no independent evidence in support of his claim to have become or decided to become a Christian, and that by failing to attend the hearing, the Tribunal was unable to ask him any other questions or seek any further details or information relevant to his claims. The Tribunal noted that it would have raised certain issues concerning the Applicant’s credibility with him, in particular misrepresentations made in support of his student visa application, had he attended the hearing.
Due to the lack of supporting evidence and the Applicant’s failure to attend the hearing to provide further evidence and to respond to the Tribunal’s questions in relation to credibility concerns, the Tribunal did not accept that the Applicant had become a Christian or turned away from his Hindu beliefs as he claimed, nor that he was involved in a serious relationship with a Christian girl or that he had fallen out with his parents for religious reasons or that he faced any threat of harm for the reasons claimed in the event that he returned to Nepal in the reasonably foreseeable future.
The Tribunal further did not accept that he had a subjective fear of being persecuted in Nepal, let alone a fear that was objectively well-founded. The Tribunal was, therefore, not satisfied on the basis of claims and evidence before it that if the Applicant returned to Nepal in the reasonably foreseeable future that he would face a real chance of serious harm amounting to persecution, whether for any Convention reason or for any other reason. The Tribunal, therefore, concluded that it was not satisfied that the Applicant satisfied the criteria required for a protection visa.
The First Respondent’s submissions
The First Respondent submitted that the Applicant had not specified why, in the interest of justice, an extension of time should be granted.
In relation to the merits of the substantive application, the First Respondent submitted that the Applicant had not identified any jurisdictional error in the Tribunal’s decision. Further, it was not the Court’s function in reviewing an administration decision to substitute its own decision for that of the Tribunal. The Tribunal’s concerns about the Applicant’s credibility were a matter for the Tribunal within its jurisdiction and not a matter for the Court.
Further, the First Respondent submitted that whether there had been a breach of the rules of procedural fairness depends upon the terms of the governing statute. In this case, the content of the rules of procedural fairness depend upon Division 4 of Part 7 of the Act. In particular, s.422B of the Act states that Division 4 Part 7 is an exhaustive statement of the requirements of natural justice in relation to the matters dealt with. The common law rules of natural justice, therefore, do not apply unless it can be established that the Tribunal failed to comply with its statutory obligations. The First Respondent submits that the Tribunal complied with those obligations. It complied with its obligation under s.424A of the Act, as the information relied upon was based upon the Tribunal’s own appraisal, thought processes and considerations of the Applicant’s evidence and claims.
The information relied upon was information that the Applicant gave for the purpose of the application and, further, the Tribunal had invited the Applicant to attend a hearing in compliance with its obligations under the Act and to present evidence and arguments relating to issues arising in relation to the decision under review. The letter sent to the Applicant complied with the requirements of the Act and, under those circumstances, the Tribunal had complied with the statutory regime. Section 426A of the Act further provides that if an applicant is invited in accordance with the provisions of the Act to appear before the Tribunal and does not appear before the Tribunal, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it, provided that, in doing so, it acts reasonably. There is no obligation of the Tribunal to make any inquiry as to the failure on the part of the Applicant to appear.
The First Respondent, therefore, submits that the Tribunal did not err in exercising its discretion to proceed to make a decision in the Applicant’s absence. It did not act unreasonably or capriciously. By proceeding to a decision without hearing from the Applicant the Tribunal acted in accordance with the statutory scheme. On the material before it, the Tribunal was unable to be satisfied that the Applicant was a person to whom Australia had protection obligations and accordingly had no option but to affirm the delegate’s decision.
Conclusions
Unless this Court grants the Applicant an extension of time to lodge the substantive application, there is no valid application before the Court. In determining if it is necessary in the interest of the administration of justice to make such an order the merits of the substantive application are to be taken into account.
The grounds relied upon by the Applicant raise no jurisdictional error on the part of the Tribunal. A judicial review of the decision of the Tribunal is not a review of the merits of the Applicant’s case. Findings of fact or credit are not matters which the Court may examine, unless such findings are made on the basis of no evidence, or the conclusions are so unreasonable as to amount to a failure of the Tribunal to properly exercise its statutory duty.
The Tribunal gave consideration to the material before it, including the material which the Applicant chose to present. The Tribunal invited the Applicant to appear before it, having put him on notice that it was unable to make a favourable decision on the basis of his application alone. The Tribunal referred in its decision to discrepancies in the information given to the Department in support of his student visa and his protection visa; matters which had already been referred to in the delegate’s decision. It also referred to the lack of supporting evidence provided by the Applicant. The Tribunal was not required to accept the claims made by the Applicant. It gave cogent reasons for its failure to accept many of those claims.
I am satisfied that the Tribunal dealt with the application in accordance with the requirements of the statute. The Applicant was given an opportunity to be heard, and I can see no breach of the statutory requirements of procedural fairness in how the Tribunal dealt with his application. As I have already indicated, I am not satisfied that there is an acceptable explanation for the delay in lodgement. Further, I am not satisfied that the substantive application has merit. I am, therefore, not satisfied that it is necessary in the interests of justice to make an order extending the period of time specified in s.477(1) of the Act.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 5 September 2012
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