SZLVG v Minister for Immigration
[2009] FMCA 811
•10 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLVG v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 811 |
| MIGRATION – Application for extension of time to make an application under s.476 of the Migration Act in relation to a decision of the Refugee Review Tribunal – where prior judicial review proceedings – extension refused – application dismissed as incompetent. |
| Migration Act 1958 (Cth), ss.476, 477 |
| SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18 SZJTK v Minister for Immigration & Anor [2009] FMCA 543 SZLUC v Minister for Immigration &Anor [2009] FMCA 378 SZLVG v Minister for Immigration & Anor [2008] FMCA 960 SZLVG v Minister for Immigration and Citizenship [2008] FCA 1674 SZLVG v Minister for Immigration and Citizenship & Amor [2009] HCASL 127 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 |
| Applicant: | SZLVG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1462 of 2009 |
| Judgment of: | Barnes FM |
| Hearing date: | 10 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 10 August 2009 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application for an extension of time be refused.
The application be dismissed as incompetent.
The applicant pay the costs of the first respondent, fixed in the sum of $1,900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1462 of 2009
| SZLVG |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This matter is before me for determination of an application for an extension of time within which to make an application to the Court for review of a decision of the Refugee Review Tribunal. The application was filed on 19 June 2009.
The background to these proceedings is that the applicant, a citizen of India, arrived in Australia in March 2007. He applied for a protection visa in April 2007. The application was refused and the applicant sought review by the Tribunal. The applicant claimed to be in fear of persecution arising from his membership of an organisation known as the TMC that was engaged in a struggle with the CPIM in West Bengal, the area of India from which he came.
By decision handed down on 4 December 2007 the Tribunal affirmed the decision of the delegate of the first respondent, being satisfied that the applicant did not have a well-founded fear of persecution in relation to India as a whole. In essence, the Tribunal was of the view that it would be reasonable for the applicant to relocate to another part of India.
The applicant first sought review of that Tribunal decision by application filed in this Court on 28 December 2007. That application was dismissed by Raphael FM on 30 June 2008 after consideration of the grounds raised by the applicant (see SZLVG v Minister for Immigration & Anor [2008] FMCA 960). The applicant unsuccessfully appealed to the Federal Court. The appeal was dismissed on 8 December 2008 (see SZLVG v Minister for Immigration and Citizenship [2008] FCA 1674). Jagot J considered the grounds of appeal and also another possible basis for jurisdictional error. The applicant then lodged an application for special leave to appeal to the High Court. That was also unsuccessful (see SZLVG v Minister for Immigration and Citizenship & Amor [2009] HCASL 127). Heydon and Bell JJ saw no basis for doubting the correctness of the Federal Court’s conclusion that the Tribunal did not misapprehend the principles explained in SZATV vMinister for Immigration and Citizenship and Another (2007) 233 CLR 18 in dealing with the question of relocation or that the decision of the Tribunal was not affected by jurisdictional error in the other respects that were the subject of challenge.
On 19 June 2009 the applicant filed a further application for judicial review of the Tribunal decision in this Court. In that application he sought an extension of time under s.477 of the Migration Act 1958 (Cth) on the basis that a new government has come into power in his country. This appears to be an assertion that conditions have changed. The application for an extension of time was listed for a preliminary hearing today.
Section 477(1) as it now stands and as it stood at the time of this application provides for an application under s.476 to be made within 35 days of the date of the migration decision. As the application relates to a migration decision made before 15 March 2009, the date of commencement of Schedule 2 of the Migration Legislation Amendment Act (No.1) 2009 (Cth), by transitional provisions in that Act the date of the migration decision is to be treated as the date of commencement of the legislation (see s.2(1) and Item 7 of Schedule 2).
The effect of these provisions is that the date of the decision of the Refugee Review Tribunal, was deemed to be 15 March 2009 for the purposes of s.477 of the Migration Act. As the application was not filed before 21 April 2009 it would be outside the 35 days, unless an extension of time was granted pursuant to s.477(2) of the Act (see SZJTK v Minister for Immigration & Anor [2009] FMCA 543 and SZLUC v Minister for Immigration &Anor [2009] FMCA 378).
Section 477(2) gives the Court discretion to extend the 35 day period as it considers appropriate if two prerequisites are satisfied. First, there must be an application in writing to the Court specifying why the applicant considers it necessary in the interests of the administration of justice to make the order and second, the Court must be satisfied that it is necessary in the interests of the administration of justice to make the order.
The only reason asserted in the application for an extension of time is the reference to a new government coming into effect in the applicant’s country. However, as submitted by the first respondent, while this may provide an indication as to why the applicant has brought this application, it essentially seeks to raise factual matters relating to his claim to be a refugee. Merits review is not available in this Court (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 272). Similarly, when given the opportunity today to address his application for an extension of time, the applicant took issue with the Tribunal decision on the merits and its conclusions in relation to relocation. His concerns in relation to the Tribunal’s approach to relocation were raised and considered in the prior judicial review proceedings. Factual matters do not provide a sufficient basis on which the Court can be satisfied that the interests of the administration of justice are served by extending the time for the filing of an application for review of a Tribunal decision. Beyond this, in his affidavit filed on the same day as his application for review, the applicant contended that the Tribunal made an error of law, jurisdictional error and failed to follow procedural fairness. He indicated that he believed there were arguable grounds. The grounds in his application are that the Tribunal failed to apply the correct test for state protection and that the Tribunal failed to take into account relevant considerations in reaching a conclusion about relocation.
However these are not the first proceedings seeking review of the decision of the Tribunal. As set out above, the applicant had and took the opportunity to seek judicial review of the Tribunal decision in this Court and in the Federal Court and also unsuccessfully sought special leave to appeal to the High Court.
In all the circumstances, the applicant has had the opportunity for prior judicial review of the Tribunal decision that justice requires. The first respondent submitted that a further application would be of no utility, because res judicata and issue estoppel would apply to bar the proceedings. Without determining such matters in these proceedings, the fact that there has been prior judicial review of the Tribunal decision is significant in relation to whether it is in the interests of the administration of justice to grant the extension of time sought.
The applicant’s submissions and the material before me in relation to his case are not such as to satisfy me that it is necessary, in the interests of the administration of justice, to grant an extension of time, particularly having regard to the prior review of the Tribunal decision by this Court and the Federal Court and the special leave application to the High Court.
As I am not satisfied that there should be an extension of time under s.477(2), the application has been brought out of time and ought to be dismissed as incompetent.
The other matter raised by the applicant in oral submissions today was the fact that he had received a letter from the Department of Immigration in relation to his visa and work status. As I explained to the applicant, these are not matters that can be addressed by this Court in these proceedings.
The applicant has been unsuccessful. The Minister seeks costs in the sum of $1,900. The applicant told the Court that he had no work, that his work permit had been seized, as he put it, some 15 days ago. The applicant’s lack of funds and absence of a work permit are not in all the circumstances of the case, matters that warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent, although they may be matters to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 21 August 2009
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