MZZBH v Minister for Immigration

[2013] FCCA 327

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZBH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 327

Catchwords:
MIGRATION – Judicial review of Refugee Review Tribunal decision – significant delay in filing of Application – reasonable explanation not given –insufficient merit on the grounds of the proposed substantive application – time not extended to the Applicant – Application dismissed.

Legislation: 

Migration Act 1958 (Cth), ss.417, 477

Plaintiff M90/2009 v Minister for Immigration and Citizenship & Anor [2009] HCATrans 279

Applicant: MZZBH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1266 of 2012

Judgment of: Judge Hartnett

Hearing date: 21 February 2013

Delivered at: Melbourne

Delivered on: 30 May 2013

REPRESENTATION6

The Applicant: In person

Counsel for the Respondents: Ms Whittemore

Solicitors for the Respondents: Sparke Helmore Lawyers

THE COURT ORDERS THAT:

1. The Application filed 9 October 2012 for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) be refused.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $4,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1266 of 2012

MZZBH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal dated 5 March 2012. The grounds of the Application filed 9 October 2012 are as set out as follows:-

   “1. The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction;

   PARTICULARS

   a. the credibility of the article which the applicant had written was disputed by the tribunal, yet the member has omitted to acknowledge that the article has been reproduced over the years, such that the internet publishing date should not be a relevant or weighted factor for the discrediting of the article.

   b. That even in the absence of the full name of the applicant on the article should not discount the fact that the political figure Kuldip Singh, blames and has discovered that it was the applicant who was the author of the article. However, even if the applicant was not the writer, this would not prevent Kuldip Singh from targeting the person he assumed to be the writer.

   c. The tribunal has made comments about the ease in which fraudulent documents can be obtained in India and refers to the letter from the Senior Editor of the [tribunal]. The tribunal was bound to have this article and others relied upon by the applicant examined by their document authentication unit, so that it could come to a definite conclusion that these documents were not authenticate rather that relying upon an implication relayed by country information.”

   The Applicant also relies upon an Affidavit sworn by him on 9 October 2012.

2. The Response filed by the First Respondent on 24 October 2012 seeks dismissal of the application on the basis that firstly, s.477(1) of the Migration Act 1958 (Cth) (‘the Act’) applies and secondly, that the application does not establish any jurisdictional error in the decision of the Refugee Review Tribunal dated 5 March 2012.

Background

1. The Applicant is a citizen of India who travelled to Australia on 12 March 2009 as the holder of a Subclass 572 Student visa issued on 2 March 2009 and valid until 7 April 2011.  He made application for a Protection (Class XA) visa on 18 May 2010.  On 19 April 2011 a Delegate of the First Respondent (‘the Delegate’) refused to grant the Applicant a Protection (Class XA) visa. The Applicant made application to the Refugee Review Tribunal (‘the Tribunal’) on 25 May 2011 for review of the decision of the Delegate.  The Applicant was invited to appear before the Tribunal on 3 August 2011 at 1.30pm to give evidence and present arguments.  He requested that the hearing be postponed.  A new hearing date and time was provided to him of 2 September 2011 at 10.00am.  The Applicant sought a further adjournment.  A further hearing date was provided of 20 October 2011 at 1.30pm.  The Applicant made a further request for an adjournment of the hearing which was declined by the Tribunal.  The Tribunal by letter of 14 October 2011 notified the Applicant it intended to proceed with the hearing. An invitation to comment on or respond to information was sent to the Applicant by letter dated 24 October 2011.

2. The Applicant appeared before the Tribunal on 20 October 2011 to give evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  The Applicant’s authorised migration agent also attended the hearing.  The Tribunal considered the claims made by the Applicant, the totality of the evidence before it and made findings consistent with that evidence.  The Tribunal did not accept the Applicant as credible in relation to his protection claims and did not regard him as a witness of truth.  The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.

Consideration

1. On the hearing of this application for judicial review, the Applicant made oral submissions about the state of his mental health at the time of the Tribunal hearing. He did not explain, nor sought to, the reason for his delay in the filing of his application for judicial review. Such application was to be filed in accordance with s.477 of the Act which is as follows:-

   “(1)  An application to the Federal Circuit 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 Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a)  an application for that order has been made in writing to the Federal Circuit 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 Circuit 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) in 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)  in 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.”

2. At the time of the Tribunal hearing, the Applicant had a registered migration agent assisting him. Following his receipt of the Tribunal decision, the Applicant attended upon the solicitors acting on his behalf and obtained legal advice as to his future course of action. He was advised that he could appeal to this Court or seek Ministerial intervention pursuant to s.417 of the Act which is as follows:-

   “(1)  If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

   (2)  In exercising the power under subsection (1) on or after 1 September 1994, the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.

   (3)  The power under subsection (1) may only be exercised by the Minister personally.

   (4)  If the Minister substitutes a decision under subsection (1), he or she must cause to be laid before each House of the Parliament a statement that:

   (a)  sets out the decision of the Tribunal; and

   (b)  sets out the decision substituted by the Minister; and

   (c)  sets out the reasons for the Minister’s decision, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.

   (5)  A statement made under subsection (4) is not to include:

   (a)  the name of the applicant; or

   (b)  any information that may identify the applicant; or

   (c)  if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.

   (6)  A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:

   (a)  if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

   (b)  if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

   (7)  The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.”

3. The Applicant instructed his solicitors, on the basis that he was a person of limited financial means, to make application to the Minister of Immigration and Citizenship which was duly done. By letter of 17 September 2012, the Applicant was advised that the Minister would not exercise his discretion in favour of the Applicant. The seeking of Ministerial intervention rather than commencing legal proceedings within time is “not a sufficient reason to justify the Applicant’s delay in bringing the present application to this Court”. In PlaintiffM90/2009 v Minister of Immigration and Citizenship & Anor [2009] HCATrans 279 Crennan J said at line 1270:-

   “The plaintiff has given two reasons for his delay in bringing these proceedings. The first is that the plaintiff decided to seek ministerial intervention and only came to this Court after the Minister had refused to intervene in the plaintiff’s case and after he had made an application to the Federal Magistrates Court. The second is that the plaintiff claims not to have had sufficient funds to commence judicial review proceedings.

   The plaintiff’s decision to seek ministerial intervention rather than commence legal proceedings within time is not a sufficient reason to justify the plaintiff’s delay in bringing the present application to this Court. In Re Minister for Immigration and Multicultural Affairs; Ex Parte Sithamparapillai [2004] HCATrans 364 Justice Hayne in an ex tempore judgment said:

   “Resort to the alternative path provided by sections 48B and 417 of the Act entailed, so the applicants contended, that there be no continuing legal proceedings extant. Nonetheless, the pursuit of that path is, in my opinion, not a sufficient explanation for the failure to institute proceedings making the allegation which now it is sought to pursue. That of itself would be reason enough to conclude that the proceedings brought should stand dismissed.”

   As regards the plaintiff’s second reason, the plaintiff has asserted that he lacked the necessary funds to institute proceedings within time. No particulars of the plaintiff’s financial position are provided so there is no basis upon which to assess the assertion made. These considerations are not a sufficient explanation of the delay in bringing the application to this Court.

   As in Vu v Minister for Immigration and Citizenship [2008] FCAFC 59, bringing a late application in this Court appears to be an alternative approach to be employed after the application under section 417 has failed. This is sufficient reason for finding that it is not necessary in the interests of the administration of justice to grant an extension under section 486A(2) if the Act. However, because the delay is relatively short, it is appropriate to also approach the matter by consideration of the utility of granting an extension of time.”

4. The Applicant’s delay in filing his application is significant. It is a period of almost six months.  No reasonable explanation is given by him beyond that he proceeded down the path of seeking Ministerial intervention first. That of itself leads the Court to conclude that the proceedings should be dismissed.

5. However, additionally, there is insufficient merit on the grounds of the proposed substantive application for judicial review to justify an extension of time being granted.

6. Particulars a. and b. of the grounds alleged in the Application attack, in essence, the merits of the Tribunal’s findings which were clearly open to it on an assessment of the evidence before it.  The Applicant takes issue with the Tribunal’s credibility findings in relation to a newspaper article submitted to it by the Applicant. The Tribunal findings are set out in paragraphs 134 to 137 of its Reasons as follows:-

   “134. In relation to the applicant’s claim to have reported on a murder committed by Kuldeep Singh in September 2007, the Tribunal notes that the copy of the article and certified translation do not record of the year in which the report was made. However, the online media report put to the applicant in writing after the hearing states the incident occurred “today” and is dated 3 September 2009. The Tribunal finds the applicant’s explanation that the murder occurred exactly 2 years earlier and that the report in September 2009 was triggered by the later arrest of Mr Singh highly implausible. This explanation is not borne out by the wording of the report nor by the certified translation of the article the applicant claims to have authored and provided to the Tribunal after the hearing.

   135. The Tribunal considered the copy of the letter the applicant provided to the Tribunal purportedly from the Senior Chief Editor of the Tribune (see [100 b] above). As put to the applicant at the hearing, given the available country information about the ease with which fraudulent documents can be obtained in India and for the same reasons given in relation to many of the other documents provided by the applicant (see [134] below), the Tribunal gives very little weight to this letter. The Tribunal concludes that it has been generated in India solely for the purpose of attempting to explain away the significant inconsistency in issue and that it is not a genuine document from the Senior Chief Editor of the Tribune.

   136. In relation to the copies of the article and the certified translation that the applicant claims to have authored, the Tribunal notes that the author of the article is named “Satinder” but finds that this does not establish that the author of the article was the applicant because “Satinder” is not his full name and so the report could have been authored by another journalist with that name. Given the serious discrepancy between the date when the applicant claims this incident occurred and was reported to him and when the objectively identifiable online media report shows this incident occurred, the Tribunal finds that the article and certified translation provided by the applicant were not authored by the applicant.

   137. Accordingly, the Tribunal finds that the incident referred to in the report took place on September 2009 and, given that by that time the applicant had been living in Australia for more than six months, the Tribunal does not accept that the applicant reported on that incident. Further, the Tribunal finds that the applicants persistent claim that he did in fact report on that event in September 2007 to raise fundamental concerns about the credibility of his claims.  As a result, the Tribunal does not accept him as a witness of truth.”

7. Particular c. of the grounds alleged in the Application was addressed in the Tribunal’s findings in paragraph 135 as cited in the preceding paragraph. This was a factual finding made by the Tribunal. The Tribunal was under no obligation to investigate the Applicant’s claims or to make further enquiries on the Applicant’s behalf. It was open to the Tribunal to make the factual findings it did in light of country information before it and the inconsistency it had found in respect of the other document that the Applicant had submitted in relation to the date when the purported shooting took place.

8. The Applicant this day claimed that his mental condition was not good at the time of the Tribunal hearing. It is clear in reading the decision of the Tribunal that it was aware of the Applicant’s claimed health difficulties and that it assessed the Applicant on the day of the hearing as having capacity to engage in the proceedings in the giving of evidence and presenting of arguments to the Tribunal.  It is also clear that the Applicant did participate meaningfully in the hearing and was subsequent to it, given an opportunity to comment on the matters raised by the Tribunal, being its concerns as to his evidence.

9. Time is not extended to the Applicant to file his Application and the proceedings are dismissed. Costs will follow the event, though in a sum less than scale for final hearing, no written submissions being required.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date:  30 May 2013