SZNOS v Minister for Immigration & Anor
[2009] FMCA 564
•15 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNOS v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 564 |
| MIGRATION – Refugee Review Tribunal – practice and procedure – application for extension of time – whether grounds disclose arguable case – whether delay in filing application is reasonable. |
| Migration Legislation Amendment Act (No.1) 2009 (Cth), ss.477; 477(1); 477(2) Migration Act 1958 (Cth), ss.417; 424A |
| Daniel v Minister for Immigration and Multicultural and Indigenous Affairs and Others [2004] FCA 21 |
| Applicant: | SZNOS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1129 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 15 June 2009 |
| Date of Last Submission: | 15 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 15 June 2009 |
REPRESENTATION
| Applicant appeared in person with Punjabi interpreter |
| Solicitors for the Respondents: | Ms E. Baggett, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1129 of 2009
| SZNOS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant filed an application on 11 May 2009 seeking judicial review of a decision of the Refugee Review Tribunal dated 29 April 2008.
Under s.477 of the Migration Legislation Amendment Act (No.1) 2009 (Cth), time to lodge an application for judicial review from the Refugee Review Tribunal (“the Tribunal”) begins to run against an applicant from the date of the Tribunal’s decision. The date of the Tribunal’s decision 15 March 2008. The applicant lodged his application to this Court seeking judicial review on 11 May 2009. Under s.477(1) as amended the applicant has 35 days from the date of the Tribunal’s decision to lodge an application seeking judicial review of the Tribunal’s decision. Under s.477(2), if the Court is satisfied that it is necessary in the interests of the administration of justice, the Court may extend that time.
On 11 June 2009, the first respondent filed a Response and a Notice of Objection to Competency to the applicant’s application on the basis that the applicant’s application was filed in after the 35 days period had expired. On 11 June 2009, the first respondent also filed an affidavit in support annexing a copy of the decision of the Tribunal and deposing to the fact that the decision was signed and sent to the applicant on 20 May 2009.
The Court explained to the applicant that it would be necessary for the applicant, if he so chose, to seek the leave of the Court to give evidence to explain his delay in filing his application before this Court. The applicant sought that leave and, by consent, it was granted.
The applicant stated that he received letters from the Minister for Immigration and Citizenship (“the Minister”) stating that his application had been refused, so he immediately lodged an application and was not aware of the law. This evidence was clarified during cross examination.
In cross-examination the applicant stated that on two occasions he had written to the Minister asking the Minister for a more favourable decision and on each occasion that request had been refused. When asked why he chose to seek ministerial intervention instead of appealing the Tribunal’s decision the applicant answered that his life was in danger in India and he thought he had a better chance with the Minister.
In support of the Minister’s objection to competency Ms Baggett also read her affidavit, affirmed 15 June 2009, annexing correspondence between the applicant and the Department for Immigration and Citizenship (“the Department”). That correspondence discloses that:
i)On 4 June 2008 the applicant wrote to the Minister stating that he had received a letter from the Tribunal refusing to grant him a protection visa. The letter sought the assistance and intervention of the Minister.
ii)On 23 December 2008, the Department responded to the applicant’s letter and informed the applicant that the Minister had declined to exercise his power to grant the applicant a more favourable decision.
iii)On 22 January 2009, the applicant’s migration agent, Adrian Joel & Co, wrote to the Ministerial Interventions Unit on behalf of the applicant again seeking Ministerial intervention pursuant to s.417 of the Migration Act 2001 (Cth) (“the Act”).
iv)On 24 April 2009 the Department responded on behalf of the Minister informing the applicant that his request had been denied.
The solicitor for the first respondent, Ms Baggett, submitted that, in the circumstances, it is evident from the applicant’s own oral evidence and the evidence of his correspondence with the Minister, that the applicant had approached the Minister because the applicant thought he would receive a better outcome from the Minister.
Ms Baggett also referred the Court to Daniel v Minister for Immigration and Multicultural and Indigenous Affairs and Others [2004] FCA 21 (“Daniel”) where Goldberg J refused an application for an extension of time where nine months had elapsed between the Order dismissing the application for review in the Federal Court of Australia and the filing of an application in the High Court of Australia. His Honour noted that during that period the applicant had chosen to write to the Minister pursuant to s.417 of the Act seeking a more favourable decision on behalf of the applicant. His Honour found that by taking that course of action the applicant was indicating that he had abandoned any course that would seek to challenge the decision of the Tribunal on grounds available under the Act or otherwise at law. His Honour characterised such conduct as an indication by that applicant that he was prepared to accept the Tribunal’s decision as correct and did not intend to challenge the decision further in the Courts. His Honour referred to a number of authorities in support of those notions at [14] of his reasons.
The applicant’s oral evidence and evidence of his correspondence with the Minister in the case before this Court indicates a situation similar to the case before Goldberg J in Daniel. In the case before this Court, the applicant chose on two occasions to seek the intervention of the Minister to provide him with a more favourable decision. In evidence to this Court this morning, when asked why he chose to pursue seeking ministerial intervention rather than appealing the Tribunal’s decision, the applicant said that he thought he had a better chance with the Minister.
In my view the applicant’s explanation for the delay of more than 13 months in seeking judicial review of the Tribunal’s decision is neither reasonable nor satisfactory. I find that the applicant, in accordance with his evidence, elected to pursue Ministerial intervention because he thought it would give him a more favourable outcome. By his conduct, the applicant indicated that he was prepared to accept the Tribunal’s decision as correct rather than to challenge the Tribunal’s decision further in the Courts.
I further have regard to the grounds identified by the applicant in his application, filed on 11 May 2009, seeking judicial review of the Tribunal’s decision. Those grounds are as follows:
“1. I have solid grounds for defending this action.
2. Minister of previous government approved & accepted my application for protection visa under Migration Regulation 866.221. Then the new government null and void the decision made by the previous Minister.
3. I shall submit shortly – new evidence that I am still chased by the Indian government.”
In addition in the applicant’s affidavit filed in support of that application the applicant annexed the Tribunal’s decision. Those complaints in the affidavit seem to be a reformulation of the applicant’s grounds of his application and are as follows:
“1. I have very strong & solid grounds for defending this action.
2. I was already granted the PV by the previous Minister of Immigration. Then the new immigration delegate refused it.”
Plainly, those grounds do not disclose any error capable of review by this Court.
The applicant’s statement that he has new evidence to submit that he is being chased by the Indian Government cannot go to the issue which this Court must consider, which is whether or not the decision of the Tribunal is affected by a jurisdictional error. It cannot be a jurisdictional error for the Tribunal to have failed to consider information that was not placed before it by the applicant in support of his review application. Otherwise, the complaint made by the applicant in Ground 3 is one that would go to the merits of the Tribunal’s decision. The Court has no jurisdiction to reconsider the merits of the applicant’s application to the Tribunal.
In those circumstances, the grounds of the applicant’s application do not disclose any ground with any prospect of success.
I note also the submission made by Ms Baggett that the Minister contends that the decision of the Tribunal does not disclose a jurisdiction error. A perusal of the Tribunal’s decision record discloses that the applicant attended a hearing before the Tribunal. The Tribunal’s decision record suggests that the Tribunal had regard to the evidence of the applicant, including documentary evidence, and heard evidence from a witness called by the applicant on his behalf. The Tribunal sent the applicant a letter pursuant to s.424A appearing to note information that it was of the view may form part of its reasons for affirming the decision under review. The Tribunal’s reasons disclose that it did not find the applicant a witness of truth and found that the applicant was unable to provide sufficient details of his alleged activities in the Khalistan movement, which the Tribunal found indicated that such an allegation was a late invention because it was not put in the applicant’s protection visa application.
Whilst I express no final view, neither have I considered fully the issue of whether or not the decision of the Tribunal discloses a jurisdiction error, it would appear that no error is apparent on the face of the Tribunal’s decision record and the applicant has not identified any error.
For the applicant to succeed in his application for an extension of time, it is necessary for the applicant to persuade the Court that he has a reasonable and satisfactory explanation for his delay, and that the grounds of his application disclose at least an arguable case. The applicant has failed to persuade the Court in respect of either of those matters.
At the conclusion of the applicant’s submissions in reply this morning the applicant sought an adjournment to engage a lawyer. However, the applicant has sought advice as recently as 22 January 2009 from Adrian Joel & Co. There is no evidence before this Court that the applicant has taken any steps to engage another lawyer, nor did the applicant identify any lawyer which he sought to engage. The applicant has had a substantial amount of time in which to seek whatever advice he wished in relation to his rights following the Tribunal’s decision and for that reason his application for an adjournment was refused.
Accordingly, for the reasons referred to above and given that the applicant’s application for an extension of time is refused, the proceeding before this Court should be dismissed with costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 17 June 2009
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