MZZTY v Minister for Immigration

[2013] FCCA 1944

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZTY v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1944

Catchwords:
MIGRATION – Extension of time – whether necessary in the interests of the administration of justice – grounds of application for judicial review considered – without merit – therefore extension refused – no application for judicial review properly before the Court.

Legislation:

Migration Act 1958 (Cth), ss.357A, 422B, 425(1), 476, 477

Fisher v Minister for Immigration and Citizenship(2007) 162 FCR 299
Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214
NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
SZHOA v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 501
SZHWY v Minister for Immigration and Citizenship (2007) 159 FCR 1
SZMKG v Minister for Immigration and Citizenship [2009] FCAFC 99

Applicant: MZZTY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1662 of 2013

Judgment of: Judge F. Turner

Hearing date: 13 November 2013

Date of Last Submission: 13 November 2013

Delivered at: Melbourne

Delivered on: 13 November 2013

REPRESENTATION

The Applicant appeared In Person with the assistance of a Tamil interpreter

Counsel for the First Respondent: Mr Knowles

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application filed 7 October 2013 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,646.00

3. All extant applications are dismissed and the matter is removed from the list of pending cases.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1662 of 2013

MZZTY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex-tempore & Revised)

1. The applicant is a citizen of Sri Lanka who arrived in Australia on

   
   

   17 May 2012 (Court Book “CB” p.23). The applicant applied for a Protection (Class XA) visa on 30 August 2012 (CB p.21). That application was refused by a delegate to the Minister on 8 October 2012 (CB p.131).

2. The applicant filed an application for review to the Refugee Review Tribunal (the “Tribunal”) on 10 October 2012 (CB p.134). By a decision dated 8 May 2013, the Tribunal affirmed the decision of the delegate not to grant the applicant a Protection (Class XA) visa (CB p.254). This is an application for judicial review of that decision of the Tribunal.

3. The grounds of the application are:

   (1)The Refugee Review Tribunal did not afford me procedural fairness:

   (2)The Refugee Review Tribunal applied the wrong legal test.

4. The applicant appeared before the Court by telephone on 8 October 2013. As there was insufficient material before the Court for the matter to proceed on that day, orders were made, including that the applicant file and serve written submissions in support of his application. The Court has had regard to the content of the Affidavit filed by the applicant on 8 October 2013. The Affidavit contains factual detail, but no submissions in support of the application for judicial review.

5. The applicant is currently in detention at the Brisbane Immigration Transit Accommodation Centre. The solicitors for the Minister sent an email to the applicant’s representatives seeking the applicant’s agreement to appear before the Court by telephone. No response was received. On 8 November 2013, the solicitor for the Minister spoke to the applicant’s representatives by telephone, requesting a response as to an appearance by telephone. On 11 November 2013, the solicitor for the Minister attempted to contact the applicant’s representatives by telephone. That attempt was not successful, and a message was left to call back. No response was received. The solicitor for the Minister then sought the Court’s approval for the applicant to appear by telephone. That approval was given at 1.18 pm on 11 November 2013. The applicant therefore appears today by telephone, with the assistance of a Tamil interpreter.

6. The Court invited the applicant to make submissions today in support of his application, but the applicant stated that he had no submissions to make to the Court. 

7. The application for judicial review was filed on 7 October 2013. An application for judicial review under s.476 of the Migration Act 1958 (the “Act”) must be made within 35 days of the date of the migration decision. That is provided in s.477(1) of the Act. The decision is dated 8 May 2013 (CB 234). The Court notes that the date on CB p254 is

   
   

   9 May 2013. The 35 days therefore, ended on 12 or 13June 2013, and the application was filed on 7 October 2013.

8. Section 477 of the Act provides:

   (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.

9. The application having been made on 7 October 2013 was made nearly three months outside the 35 day period. An application for an extension of time has been made in writing, without specifying why the applicant considers it is necessary in the interests of the administration of justice to make an order extending or granting an extension of time.

10. There are details in the application for judicial review stating the grounds of application for extension of time, but there are no matters that would support a finding that it is necessary in the interests of the administration of justice to grant an extension. The Minister opposes an extension of time.

11. In determining the application for an extension of time, the Court will include a consideration of the prospects of the applicant succeeding in his application for judicial review. That process is supported by the decision in Fisher v Minister for Immigration and Citizenship(2007) 162 FCR 299 at [35].

12. Ground 1 of the application for judicial review is that the Tribunal “did not afford me procedural fairness”.

13. Section 422B of the Act provides that:

    (1)“This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

    …

    (3 )In applying this Division, the Tribunal must act in a way that is fair and just.”

14. The court refers to the following decisions.

15. The Court accepts to be a correct statement of law that the effect of s.357A of the Act is that the common law rules of procedural fairness have been largely excluded. In Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214, the Full Court held that s.422B (which is relevantly identical to s.357A) operates to exclude the “hearing rule” aspect of procedural fairness in relation to decisions of the Tribunal. The Court said at [66]-[67]:

    “What was intended was that Subdiv AB provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule.

    Other aspects of the common law of natural justice, such as the bias rule are not excluded…”.

16. The decision in Lay Lat was followed by the Full Court in SZHWY v Minister for Immigration and Citizenship (2007) 159 FCR 1. Thus, in NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419, Young J (with Gyles and Stone JJ in agreement) said at [85] that:

    “… there is no scope for the operation of general requirements of procedural fairness outside the specific provisions of Div 4 of Pt 7 of the Act: see s 422B(1); Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 at [66]; and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8].”

17. The judgments of the Full Court concerning the meaning of ss.357A and 422B have settled the operation of those sections until the Full Court or High Court says otherwise: see SZHOA v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 501 per Allsop J at [17]. Accordingly, the applicant’s contention that the Tribunal erred by denying him procedural fairness cannot succeed as the rules of procedural fairness do not apply to decisions of the Tribunal.

18. The effect of s.357A(1) of the Act is to exclude the Tribunal from common law obligations of procedural fairness: see SZMKG v Minister for Immigration and Citizenship [2009] FCAFC 99 at [49]-[50] and SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [48].

    Section 422B has the same effect.

19. Section 425(1) of the Act provides that the “Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

20. The applicant was invited through his migration agent, to attend before the Tribunal (CB p.153 and 161). The first hearing before the Tribunal was on 28 March 2013 (CP p.237 [18]). The applicant appeared on

    
    

    28 March 2013, to give evidence and present arguments (CB p.235 [3]).

21. On 3 April 2013, the applicant’s migration agents sought an extension until 15 April 2013, to lodge a response to information raised at the hearing on 28 March 2013 (CB p.217). Written submissions dated

    
    

    15 April 2013, were received by the Tribunal. Those submissions were considered by the Tribunal (CB p.239 [30], p.240 [34], p.241 [41], p.242 [45] and p.244 [59]). The applicant has not established a breach of the Act. Ground 1 has no merit and the Court would dismiss it.

22. Ground 2 is that the Tribunal “applied the wrong legal test”. The Court finds that the Tribunal set out correctly details of the relevant legal principles (CB p.235). The decision shows that the Tribunal applied the correct principles of law. The applicant has not established a failure by the Tribunal to deal with any of his claims. Ground 2 has no merit and the Court would dismiss it.

23. The Court finds that the grounds of the application for judicial review have no merit. An extension of time is therefore, not necessary in the interests of the administration of justice. An extension is therefore denied.

24. There being no application for judicial review properly before the Court; judicial review of the decision of the Tribunal dated 8 May 2013 is denied.

25. Alternatively, if, as a matter of law an extension of time should be granted the Court has considered the applicant’s case for judicial review and finds it to be of no merit. The application for judicial review would be dismissed on that basis also.

26. The Minister, having succeeded in this case, seeks the costs that have been incurred by the Minister in the sum of $6,646.00. That is the amount provided in the Schedule to the Federal Circuit Court Rules 2001. Costs of that amount are awarded to the Minister.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate: 

Date:  22 November 2013