MZZQO & Anor v Minister for Immigration & Anor - [2014] FCCA 2646

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZQO & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2646

Catchwords:
MIGRATION – Extension of time – whether reasonable and adequate explanation for the delay – whether substantive case is significantly arguable to justify an extension – extension refused.

Legislation:

Migration Act 1958 (Cth), s.477

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Islam v Minister for Immigration & Anor [2013] FCCA 1687
Kostas v HIA Insurance Services Pty Ltd(2010) 241 CLR 390
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24
MZXGP v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 1314
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319

First Applicant:

MZZQO

Second Applicant:

MZZQP

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1289 of 2013

Judgment of:

Judge F. Turner

Hearing date:

24 October 2014

Date of Last Submission:

24 October 2014

Delivered at:

Melbourne

Delivered on:

20 November 2014

REPRESENTATION

Counsel for the Applicants:

Mr Watters

Solicitors for the Applicants:

Victoria Legal Aid

Counsel for the Respondents:

Mr Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application for an extension of time is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1289 of 2013

MZZQO

First Applicant

MZZQP

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of the decision of the Refugee Review Tribunal (the “Tribunal”) dated 12 April 2013 (Court Book “CB” p.289). That decision affirmed the decision of a delegate to the Minister not to grant the applicants Protection (Class XA) visas.
The first named applicant is the husband of the second named applicant. The applicants applied for visas on 19 September 2012 (CB p.42). The visas were refused (CB p.188). The applicants then applied for a review by the Tribunal; they now seek judicial review of the decision of the Tribunal.
At the hearing before the Court on 24 October 2014, Mr Watters of Counsel appeared for the applicants and Mr Rielly of Counsel for the first respondent.

Submissions on behalf of the Applicants

The applicants seek an extension of time under s.477 of the Migration Act 1958 (the “Act”). The first respondent opposes an extension of time.
Mr Watters stated that he had not prepared submissions supporting an extension of time because he did not realise that it was to be contested. However, written submissions by the first respondent filed 17 October 2014, submitted at [7] that “no extension of time should be granted as the delay is substantial and the proposed grounds unmeritorious”.
Further, it was submitted at [12] that “the application for an extension of time under s 477(2) should be dismissed with costs”.
The issue was therefore raised squarely. Mr Watters made no submissions on the issue other than to submit that the grounds for judicial review have merit. An affidavit was filed by the second applicant in support of an extension. The deponent states that the decision was sent to her lawyer on 15 April 2013, who then advised her that she could no longer act for her. The second named applicant then went to the Asylum Seeker Resource Centre, but did not get the assistance she required.
Section 477 of the Act provides as follows:
Time limits on applications to the Federal Circuit Court
(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.
The applicants had 35 days in which to seek judicial review of the Tribunal’s decision dated 12 April 2013. They lodged their application for judicial review on 15 August 2013. The time for making the application expired on 17 May 2013. The application was therefore filed just under three months late.
Section 477(2) provides that the Court may extend the time limit as it 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.
The amended application filed 26 September 2014 contains an application in writing and states why the applicants consider that it is necessary in the administration of justice to extend time.
In SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, Judge Foster considered the requirements for an extension of time under s.477 of the Act, and stated at [47]:
(47)The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a)Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b)Whether there is any prejudice to the Minister;
(c)Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
In Islam v Minister for Immigration & Anor [2013] FCCA 1687, Judge Lucev decided at [17] to [19] as follows:
(17)Even without the mandatory requirements of r.44.05(2) of the FCC Rules, there is no satisfactory explanation for the delay. Ignorance of time limits, without any further justification, is not generally regarded as a satisfactory explanation for delay.[1] As the Federal Court observed in SZSDA:
In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay....[2]
(18)In this case there is no evidence as to the reason for the delay, and no evidence that the applicant is in any different a position to all of the other persons applying for visas around Australia, the vast majority of whom file any judicial review application under s.476 of the Migration Act with this Court within time.
(19)In all of the above circumstances, the Court does not consider that there has been any satisfactory explanation for the delay.
[1] SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 at para.38 per Foster J (“SZSDA”).
[2] SZSDA at para.38 per Foster J
Here, the explanation for the delay is that the applicants did not have the financial means to seek legal support and have therefore been delayed in submitting the application while finding legal representation. The Court infers that this means that the applicants may not have known that they had the capacity to bring a judicial review in this Court and/or did not know the time limits.
The Court applies the decision in SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319, and finds that the applicants have not provided an adequate explanation for the delay. They were in no different position from other applicants who find it difficult to access legal advice, but still file within time. In the affidavit (supra), the second applicant states that she left it for a “month” before following up with the Asylum Seeker Resource Centre non-legal case worker. That is inexcusable
The Court finds that there would be no prejudice to the Minister if the time limit is extended.

The Merits of the Grounds for Judicial Review

Ground One

Ground 1 of the amended application provides:
(1)The Tribunal erred by making a positive finding for which there was no probative evidence, namely that the provisions of the Islamic Penal Code of Iran (‘Penal Code’) relating to dress were of universal application.
Particulars
(a)The Second Applicant claimed to face persecution as a woman in Iran, including by being forced to wear the hijab and facing punishment if she did not do so.
(b)She claimed, and the Tribunal accepted, that she had in the past come to the attention of the Basij and been detained by them for not wearing the hijab.
(c)Nonetheless, the Tribunal found that being compelled to wear the hijab was not persecutory conduct because the laws requiring the Second Applicant to do so were:
(i)Of ‘universal application’; and
(ii)Not selectively enforced.
(d)A finding about the operation of a law in a foreign country is a finding of fact and must be based on probative evidence.
(e)In its reasons, the Tribunal did not identify any evidence in support of its conclusion that the provisions of the Islamic Penal Code relating to dress were of universal application.
(f)Accordingly, the Tribunal fell into jurisdictional error.
There is evidence to support the finding that the dress code has universal application. On CB p.166 at Item 25, there is evidence that was before the delegate that there was a “Necklace ban for men as Tehran’s ‘moral police’ enforce dress code…”.
Particular (d) recognises that the finding is a finding of fact. However, “a tribunal that decides a question of fact when there is “no evidence” in support of the finding makes an error of law[3]. What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law”: see Kostas v HIA Insurance Services Pty Ltd(2010) 241 CLR 390 at [91].
[3] Lombardo v Federal Commissioner of Taxation [1979] FCA 66; (1979) 28 ALR 574 at 578 per Bowen CJ; TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175 at 187 per Gummow J.
The Court accepts the submission by Mr Rielly that there is evidence to support the finding that the dress code is of universal application, and refers to the evidence above. Ground 1 is not sufficiently arguable to justify an extension of time.

Ground Two

Ground 2 of the amended application provides:
(2)Further, or alternatively, the Tribunal erred by failing to consider whether the provisions of the Penal Code relating to dress could be discriminatory in their operation, notwithstanding that they were not selectively enforced.
Particulars
(a)The Second Applicant claimed to face persecution as a woman in Iran, including by being forced to wear the hijab and facing punishment if she did not do so.
(b)The Tribunal found this requirement did not amount to persecution because the laws were:
(i)If ‘universal application’; and
(ii)Not selectively enforced.
(c)Punishment under a law of general application may be persecution for the purposes of the Convention where the law operates discriminatorily against a particular group or is selectively enforced.
(d)In considering whether the dress code provision of the Penal Code could not amount to persecution, the Tribunal failed to consider the question of discriminatory operation as opposed to selective enforcement.
(e)Accordingly, the Tribunal fell into jurisdictional error.
Having found that the Penal Code relating to dress was of universal application, the Tribunal was not required to decide whether the Penal Code could be discriminatory in its operation.
In any event, failure to take a relevant consideration into account can only be made out where the Tribunal failed to take into account a consideration which it is bound under the Act to consider: see Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 at [39] to [40].
In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]:
“It may be that it is unnecessary (for the Tribunal) to make a finding on a particular matter because it is subsumed in findings of greater generality.”
In MZXGP v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 1314, Middleton J said at [13]-[15]:
It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
In the present case, the factual premise upon which the contention rests was rejected by the Tribunal’s finding that the dress code is of general application.
In the present case, the factual premise of discriminatory effect, was rejected by the Tribunal’s finding that the Penal Code relating to dress is of universal application. A finding of whether it is discriminatory is subsumed in that finding.
Ground 2 is not sufficiently arguable to justify an extension of time.
The Court refuses to grant an extension of time as there is not a reasonable and adequate explanation for the delay, and the applicants’ substantive case for judicial review is not sufficiently arguable to justify an extension.
The application for an extension of time is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate:

Date: 20 November 2014