MZZPT v Minister for Immigration

[2014] FCCA 2495

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZPT v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2495

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – application to extend time – no merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.477(1), 477(2)

SZMFJ v Minister for Immigration & Anor [2009] FMCA 771

Applicant: MZZPT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1177 of 2013

Judgment of: Judge Manousaridis

Hearing date: 16 April 2014

Delivered at: Sydney

Delivered on: 31 October 2014

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents: Mr D. Brown
Australian Government Solicitor

ORDERS

1. The application pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day time limit prescribed by s.477(1) of the Act is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1177 of 2013

MZZPT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application under s.477(2) of the Migration Act 1958 (Cth) (Act) for an order extending the 35 day time limit prescribed by s.477(1) for the making of an application to this Court for judicial review of a decision of the second respondent (Tribunal). By that decision, the Tribunal affirmed a decision of a delegate of the first respondent (Minister) refusing to grant the applicant a protection visa.

2. The application for an extension of the 35 day time limit is necessary because the application for judicial review was filed 67 days after the day on which the Tribunal made its decision.

Principles governing exercise of power under s.477(2)

1. The power conferred by s.477(2) to extend the 35 day time limit prescribed by s.477(1) is discretionary; and the factors the Court should usually consider when exercising that discretion were identified by Nicholls FM (as his Honour then was) in SZMFJ v Minister for Immigration & Anor.[1]Although his Honour there identified five separate factors, the determining factor in an application for an extension of time will usually be whether the applicant has a meritorious claim.

   [1] [2009] FMCA 771 at [44]

2. Whether the claim the applicant proposes to make in these proceedings has merit, therefore, will be the principal question I will consider in these reasons. But before I do that, it will be necessary to set out the relevant background.

Background

1. The applicant is a citizen of Sri Lanka, and an ethnic Tamil. He claims he fears persecution if he were to return to Sri Lanka because he would be suspected by the Sri Lankan authorities of having links with the Liberation Tigers of Tamil Eelam (LTTE); he was a prominent member of a union, having played a prominent role in that union protesting against the government; and he would be suspected of having a connection with international Tamil organisations, and of supporting the LTTE, because he had twice fled Sri Lanka.

2. The Tribunal affirmed the decision because it found the applicant was not a witness of truth, and, for that reason, it could not rely on the applicant’s account of his experiences.

Grounds of application

1. The application contains two grounds of review. The first is that the Tribunal “did not afford me procedural fairness”. The second ground is that the Tribunal “applied the wrong legal test”. On their own, neither of these grounds raises an arguable case for relief.

2. At the hearing before me, the applicant, who was not legally represented, was invited to make submissions. In relation to the first ground, the applicant, as I understood him, in effect requested me to intervene if there is any doubt the Tribunal’s decision can be reviewed. That does not state any arguable ground for review.

3. In response to my invitation that the applicant make a submission in relation to the second ground, the applicant submitted he was given insufficient time to present his case at the second hearing before the Tribunal. The applicant informed me that the interpreter said to him “I don’t have time – much time. Whatever you want to say, tell me quickly”.[2] For that reason, the applicant submitted that the interpreter was not up to the mark. The following exchange then took place with the applicant:

   [2] T6.40

   HIS HONOUR: All right. At the time, did you say anything to the tribunal to indicate that you wanted more time than you had?

   THE INTERPRETER: I mentioned that and then I asked for the reason. They said the interpreter has to go early – has to go, so – and that there is not much time.

   HIS HONOUR: Did you tell the tribunal that you wanted more time to present your arguments?

   THE INTERPRETER: If the judge tells me something I have to obey or listen to him. How can I say something different? I have totally abided by that, what the – what the member says or the judges says.

   HIS HONOUR: Sorry, I didn’t understand that. I will ask the question again. Did you inform the tribunal that you required more time than was given to you to present to the tribunal arguments and evidence in support of your claim?

   THE INTERPRETER: No, I didn’t mention, your Honour.

   HIS HONOUR:  Is there any reason why you didn’t do that?

   INTERPRETER: I was told the interpreter does not have enough time, so he has to go, and that is what I was told.

4. The applicant made no further submissions.

5. At the conclusion of the hearing, I informed the parties that I would listen to the audio recording of the second day of the hearing, and in particular, I would listen to what was said towards the end of the hearing. I indicated to the parties that if there was nothing in the recording that would raise any issue, I would invite no further submissions from the parties. If, on the other hand, I were to conclude that some issue arose from what I heard, I would inform the parties of the issue and invite submissions.

Does the applicant’s proposed application have merit?

1. I listened to the audio recording of the last few minutes of the second hearing before the Tribunal. The applicant was represented by a migration agent. The last phase of the hearing consisted of the applicant’s agent making submissions to the Tribunal. The agent regularly paused to permit the interpreter to interpret the agent’s submissions.

2. When the agent completed her submissions, the Tribunal member said the following incomplete sentence:

   If you wanted to talk about anything else, that is, anything we have not already covered or talked about of anything that is relevant to your claims . . . .

3. This appears to have been interpreted to the applicant. The applicant then said words in his language which were interpreted as follows:

   I have revealed everything that I have to tell you. I have nothing more to add.

4. I am satisfied the applicant was given, and the applicant himself believed he was given, such time as he required in order to present his case to the Tribunal. The applicant, therefore, has no arguable case that he was denied procedural fairness.

5. It is possible that the applicant complains about the hearing before the Tribunal having taken place over two different days. If the applicant in fact makes that complaint, there is nothing that I can see from the material before me that the applicant would have a reasonable case that the Tribunal made jurisdictional error by holding a hearing over two sessions on different days. As I note above, the applicant stated to the Tribunal at the end of the second day of hearing that he had revealed everything he had to tell the Tribunal, and that he had nothing more to add.

6. I am also satisfied the applicant has raised no arguable case that the Tribunal applied any incorrect legal test. In my opinion, the Tribunal considered the applicant’s claims but, unfortunately for the applicant, it did not accept the applicant was a witness of truth. There is nothing in the material I have reviewed to indicate it was not reasonably open to the Tribunal not to accept the applicant as a witness of truth based on the matters on which the Tribunal relied.

Disposition

1. Given the proposed application for judicial review does not disclose any arguable case for the relief it would seek if I were to extend the 35 day time limit prescribed by s.477(1) of the Act, I propose to dismiss that application, and order that the applicant pay the Minister’s costs.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 31 October 2014