MZZBM v Minister for Immigration & Anor
[2013] FCCA 321
•2 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZBM v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 321 |
| Catchwords: MIGRATION – Extension of time sought under s.477(1) of the Migration Act – six months delay – no jurisdiction error on the part of the Tribunal alleged – extension of time refused – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.417, 425, 425A, 477(1), 477(2) |
| Cases cited: Hunter Valley Developments v Cohen (1984) 3 FCR 344 SZIGQ & Anor v Minister for Immigration and Citizenship & Anor [2007] FCA 328 SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 |
| Applicant: | MZZBM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1296 of 2012 |
| Judgment of: | Judge Whelan |
| Hearing date: | 2 May 2013 |
| Date of Last Submission: | 2 May 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 2 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the Application for an extension of time pursuant to s.477(2) of the Migration Act 1958 is dismissed.
That the Applicant filed 16 October 2012 is dismissed as incompetent pursuant to s.477(1) of the Migration Act 1958.
That the Applicant shall pay the costs of the First Respondent fixed at the sum of $6,200.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1296 of 2012
| MZZBM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(as revised from transcript)
This is an application for review of a decision by the Refugee Review Tribunal (“the Tribunal”), of 5 April 2012. The Tribunal decided to affirm the decision of a delegate of the Minister, to refuse to give the Applicant a protection visa. The Applicant seeks, first, an extension of time in which to lodge his application, and second, a declaration that the recommendation of the Independent Protection Assessment Reviewer (“the Reviewer”), was not made in accordance with law. The order sought is not relevant to a decision of the Tribunal. However, if the Applicant is successful, the Court could make appropriate orders.
The Applicant is an Indian citizen. He arrived in Australia on 12 August 2009, on a student visa. On 20 June 2011, his student visa was cancelled. He failed to comply with condition 8202, as he was not enrolled in a course of study. Some four months later, on 6 October 2011, the Applicant applied for a protection visa. With the application was a document setting out his claims for protection, and documents in support of his claims.
On 6 January 2012, a delegate of the Minister determined that the Applicant was not a person to whom Australia had protection obligations, and refused to grant the visa.
On 7 February 2012, the Applicant applied to the Tribunal for a review of the delegate’s decision. On 7 February 2012, he filed a submission in support of his application. On 8 February 2012, the Tribunal wrote to the Applicant, acknowledging receipt of his application. The acknowledgement stated that it was important, amongst other things, that the Applicant tell the Tribunal if he changed his contact details. On 6 March 2012, the Tribunal wrote again to the Applicant, stating that it was unable to make a favourable decision on the information before it. It invited him to attend a hearing on 5 April 2012.
The Tribunal’s letter was sent by registered post, to the address nominated by the Applicant in his application for review, as the address for receiving correspondence. The invitation was returned unclaimed. On 2 April 2012, the Tribunal sent an email to the Applicant at the email address he had provided on his application for review. The email enclosed a copy of the hearing invitation. The Tribunal received an automatically generated delivery status notification advising that the email message had been successfully relayed.
The Applicant did not respond to the hearing application, and did not appear. In submissions today, the Applicant said he was ill at the time, although there was no evidence that he notified the Tribunal of any illness. On 5 April 2012, the Tribunal affirmed the delegate’s decision. The Applicant was notified of the Tribunal’s decision by letter, and also by email to the email address given by him. On 16 October 2012, the Applicant lodged this application for review.
Grounds for review
The grounds for review given by the Applicant were as follows:
1. My Minister appeal has been refused
2. the RRT [Tribunal] application has been refused as well
3. I am seeking judicial review under the Migration Act by requesting the extension of 35 days tim [sic].[1]
[1] Application filed on 16 October 2012 at page 2.
The grounds for the application for an extension of time state as follows:
1. Under S 477, I am imploring to grant the extension to consider judicial review application
2. I have thought Minister give me positive reply but it has been ended up with negative
3. I did not have that much money to spent [sic] federal court application fee, when RRT refused[2]
[2] Application filed on 16 October 2012 at page 3.
The Applicant’s claims for protection were set out in the documents attached to his application for the visa, and in the documents provided to the Tribunal with his review application. They may be summarised as follows:
·The Applicant claimed to fear harm as a result of politically motivated violence in his home area in India, Andhra Pradesh.
·He claimed that his parents were active participants in the Telangana separatist movement, and had experienced trouble.
·He claimed that the situation in Andhra Pradesh was growing worse.
·He claimed that there had been widespread violence.
The decision of the Tribunal
The Tribunal, at the hearing, noted that the Applicant had been notified of the hearing invitation. It noted that the Applicant did not appear before the Tribunal, and had not made any contact with the Tribunal. In the circumstances the Tribunal decided to make its decision on the evidence available to it, without taking any further action to enable the Applicant to appear. The Tribunal referred to the claims that were before it, but did not accept those claims. The Tribunal found there was very limited evidence available to it in relation to the Applicant’s claims.
It found the claims to be vague and unsubstantiated. It noted that most of the claims related to the general situation in Andhra Pradesh, and were not specific to him or to his parents’ personal circumstances. The Tribunal found it was unable to establish the basic facts of the Applicant’s claims, as there was insufficient information about key aspects of the claims. It referred in particular to the claims concerning his parents’ involvement in the Telangana agitation, the timing of any claimed events, any threats made to his family, and the harm he claimed to fear on his return.
The Tribunal did not accept the Applicant’s claim that his parents were active participants in the Telangana agitation. It did not accept that they have suffered any harm as a result of their claimed political activity. For these reasons, the Tribunal was not satisfied that the Applicant had a genuine or well-founded fear of persecution for a convention reason. For the same reasons, the Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to India, there was a real risk he would suffer significant harm.
The submissions
The Applicant provided a written submission in support of his application for an extension of time, the application having been lodged more than six months after the decision was made by the Tribunal. The written submission was contained in a letter dated 15 October 2012. It referred to his application for ministerial intervention and to the negative decision of the Minister. In his affidavit in support of the application for judicial review, the Applicant refers to his contact with the Department and to the merits of his claim. He makes no allegation of jurisdictional error on the part of the Tribunal in any of that material, save to say that he is seeking natural justice on protection visa refusal.
In oral submissions he stated that:
·He was ill at the time of the Tribunal hearing;
·He did not see the letter from the Tribunal inviting him to appear;
·The Tribunal did not consider the matters he put to them;
·The Tribunal should not have made a decision if it did not have enough information and he did not appear; and
·That he had problems in India and that that was why he had applied for a protection visa.
In written submissions the First Respondent submitted, that the Court should refuse the application for an extension of time and dismiss the application as incompetent or if the Court was satisfied that the extension of time should be granted that the substantive application should be dismissed.
The First Respondent refers to the length of time between the decision of the Tribunal and the application for review. Under s.477(2) of the Migration Act 1958 (“the Act”), the Court may make an order extending the 35-day time period if, first, an application has been made in writing which specifies why the Applicant considers it necessary in the interest of the administration of justice to make such an order and, second, the Court is satisfied that it is necessary in the interest of justice to make such an order.
The First Respondent referred to the Applicant’s grounds for an extension of time. The First Respondent referred, also, to the decision of Nicholls FM in SZMFJ v Minister for Immigration & Anor,[3] where he identified the following considerations as relevant:
[3] SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [44].
(1) The extent of the delay and the reasons for the delay.
(2) Whether there is any merit in the application.
(3) Whether there is any prejudice to the respondents.
(4) The impact on the applicant.
(5) The interests of the public at large.
(6) The court’s discretion itself.
The First Respondent submits that the delay in this case is significant and that the Applicant has not provided a satisfactory explanation for the delay.
To the extent that the Applicant relies on an explanation that he was awaiting the outcome of an application for ministerial intervention, that explanation is inadequate. An application to the Minister under s.417 of the Act, indicates an acceptance of the decision of the Tribunal and a decision to take another course.[4] A decision to seek intervention under s.417 of the Act is not a satisfactory explanation for a delay in seeking judicial review.[5] The claim that he did not have much money is also not a satisfactory explanation.
[4] Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 at [9] and [10].
[5] SZJYR v Minister for Immigration and Citizenship [2010] FCA 135 at [12].
Turning to whether there is any merit in the application, the First Respondent submits that the grounds allege no jurisdictional error on behalf of the Tribunal. The Applicant’s appeal simply repeats his claims for protection and does not disclose any ground for review. It follows that there is no merit in the application, such as would be in the interest of justice to extend time. The Applicant was invited to a hearing on the basis that the Tribunal had considered all the material before it but was unable to make a favourable decision.
When the Applicant did not appear before the Tribunal the inevitable consequence was the rejection of his application.[6] The reason for non-attendance does not matter. If the Tribunal complies with s.425 and s.425A of the Act when inviting the Applicant to a hearing, then, it is entitled to proceed to consider and decide the matter without making any further inquiries.[7] In this case the Tribunal invited the Applicant to appear before it, therefore, complying with its obligation under s.425 of the Act. The notice complied with s.425A of the Act. The notice stated:
[i]f you fail to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.[8]
[6] NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5].
[7] SZIGQ & Anor v Minister for Immigration and Citizenship & Anor [2007] FCA 328 at [5].
[8] Court Book, page 98.
It follows, that having complied with s.425 and s.425A of the Act, the Tribunal was entitled to proceed to make a decision on the review without taking any further action. In making its decision on review the Tribunal considered all of the Applicant’s claims. The Tribunal affirmed the delegate’s decision because, based on the limited evidence before it and the vague and unsubstantiated nature of the Applicant’s claims, it was unable to be satisfied of them. These findings were open to the Tribunal.
The rejection of the application for an extension of time would clearly have an impact on the Applicant. Similarly, the interest of the public at large would not be served by the refoulement of a person owed Australia’s protection. In this case the Applicant has been found not to meet the criteria for protection under the Act, in circumstances where, without explanation, he did not attend the hearing to press his claims.
Conclusions
Both the Federal Court and this Court have adopted the principles set out by Wilcox J in Hunter Valley Developments v Cohen[9] in determining whether an extension of time should be granted. Those principles are these:
(1) An application for an extension of time is 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 granting 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.[10]
[9] Hunter Valley Developments v Cohen (1984) 3 FCR 344.
[10] Hunter Valley Developments v Cohen (1984) 3 FCR 344 at [348]-[349].
Nicholls J, in SZMFJ v Minister for Immigration & Anor,[11] added some additional principles which have been addressed by the First Respondent. 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 an order extending time, the merits of the application are to be taken into account.
[11] SZMFJ v Minister for Immigration & Anor [2009] FMCA 771.
The reasons given for the delay, in my view, do not provide an acceptable explanation. The fact that the Applicant chose to pursue another avenue, rather than seek a review of the Tribunal’s decision by this Court, is not an acceptable reason for his failure to comply with the time requirements of the Act. It is apparent that he effectively abandoned the option of judicial review and only sought to institute these proceedings when his application under s.417 of the Act was unsuccessful.
The other reason given appears to be a financial one. There was no evidence concerning his financial position provided, and in any event, impecunity of itself, will not be an acceptable explanation for a six-month delay in instituting proceedings. Likewise there was no evidence about the Applicant’s health at the time of the Tribunal hearing, nor did he contact the Tribunal to say he was ill. Further there was evidence, that a letter advising him of the hearing was sent to his email address and a delivery status notification advised that it had been received. The Tribunal was entitled, on that basis, to proceed in his absence.
The grounds relied upon by the Applicant raise no jurisdictional error on the part of the Tribunal. A judicial review of the Tribunal’s decision 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 duty.
The Tribunal gave consideration to the material before it, including 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 was not required to accept the claims by the Applicant. It gave cogent reasons for its failure to accept those claims.
I am satisfied that the Tribunal dealt with the application in accordance of 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 the Applicant. I am not satisfied that there is an acceptable explanation for the delay in lodgement in this application. Further, I am not satisfied that the substantive application has merit.
I am, therefore, not satisfied that it is necessary in the interest of justice to make an order extending the period time specified in s.477(1) of the Act. As there is, therefore, no valid application before the Court, the application is dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 21 May 2013
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