SZNYJ v Minister for Immigration

[2009] FMCA 1029

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNYJ v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1029

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – application to the Court out of time – consideration of an extension of time – refusal of an extension of time.

Federal Court of Australia Act 1976 (Cth), s.24
Migration Act 1958 (Cth), ss.476, 476A, 477, 477A

Applicants M160/2003 v Minister for Immigration [2005] FCA 195
M211 of 2003 v Minister for Immigration [2004] FCAFC 293
Rinka v Minister for Immigration [2009] FCA 1028
SZGGP v Minister for Immigration & Anor [2007] FMCA 965

Applicant: SZNYJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2339 of 2009

Judgment of: Driver FM

Hearing date: 21 October 2009

Delivered at: Sydney

Delivered on: 21 October 2009

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K Whittemore

INTERLOCUTORY ORDERS

1. The name of the applicant is not to appear on the transcript of proceedings.

2. The applicant’s request for an extension of time for the filing of the application is refused.

3. The application is dismissed as incompetent.

4. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2339 of 2009

SZNYJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 24 September 2009 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 January 2009. The Tribunal affirmed a decision of a delegate of a Minister not to grant the applicant a protection visa. It is plain that an extension of time is required for the application, having regard to the terms of s.477 of the Migration Act 1958 (Cth) (“the Migration Act”):

   (1) An application to the Federal Magistrates 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 Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:

   (a)  an application for that order has been made in writing to the Federal Magistrates 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 Magistrates 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.

2. The applicant has sought that extension of time. The application is supported by an affidavit filed on the same day which relevantly states that an extension of time should be granted due to the applicant’s agent not notifying her about appeal rights and an extension of time should be granted because the applicant was not told about the result of the Tribunal hearing until recently by her agent. The Minister’s response, filed on 12 October 2009, asserts that the Court has no jurisdiction because of the operation of s.477(1) of the Migration Act and an extension of time pursuant to s.477(2) is opposed.

3. In addition to the applicant’s affidavit already referred to, I have before me as evidence the court book filed on 19 October 2009. 

4. Section 476A(3) provides that despite s.24 of the Federal Court of Australia Act 1976 (Cth), an appeal may not be brought to the Federal Court from:

   (a)a judgment of the Federal Magistrates Court that makes an order or refuses to make an order under subsection 477(2); or

   (b)a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2).

5. I am not aware of any judicial consideration of s.476A(3)(a), but I note that s.476A(3)(b) was considered by his Honour Perram J in Rinka v Minister for Immigration [2009] FCA 1028. I proceed on the basis that the applicant has no right of appeal against my decision under s.477(2) of the Migration Act. I take the view that in the light of that restriction on the applicant’s rights, a decision under s.477(2) must be carefully made and reasoned.

6. I invited the applicant to give oral evidence in relation to her request for an extension of time.  She accepted that invitation.  In the light of her oral evidence and having regard to the other material before me I have decided to refuse the applicant’s request for an extension of time. 

7. The first consideration is the period of time which has passed since the Tribunal decision.  That is a period of approximately eight months.  The delay by the applicant in bringing the present proceeding in this Court has been a significant one. 

8. Secondly, the applicant has not proffered an adequate explanation for the delay.  I am satisfied, on the basis of the applicant’s oral evidence, that the explanation for the delay in her affidavit is not accurate.  It is tolerably clear from the applicant’s oral evidence that the real facts are that, in or about February 2009 the applicant met with her then migration agent, He Ping Zhang, of HP Migration and Education Agency, 507-368 Sussex Street, Sydney, at which time Mr Zhang informed the applicant of the Tribunal decision and provided her with a number of documents which included a copy of the decision.  The following month the applicant consulted a second migration agent, Ms Weming Qian, who advised her to make an approach to the Minister for him to intervene in her case in the exercise of his discretion.  The applicant was, of course, entitled to pursue that course but it involved a decision to refrain from making an appeal to this Court.  The approach to the Minister did not result in a favourable outcome.  Upon finding out, in about August of this year, that her approach to the Minister was unsuccessful the applicant consulted a third migration agent, whose name she does not know, but who she refers to by the nickname of I-Xin.  That person recommended that the applicant make her present application to this Court and he is also responsible for what appears in the application and in the two affidavits which accompanied it.  In my view, the applicant’s decision to bring the present application is a belated one following the failure of her approach to the Minister and the time taken in pursuing that approach is not a sufficient explanation for the delay in coming to court[1]. 

   [1] M211 of 2003 v Minister for Immigration [2004] FCAFC 293 and SZGGP v Minister for Immigration & Anor [2007] FMCA 965 at [74]-[84]; cf Applicants M160/2003 v Minister for Immigration [2005] FCA 195

9. Thirdly, the application does not, in my view, raise a serious question to be tried.  The applicant asserts that she is a genuine Falun Gong member.  That is not an issue which the Court can decide.  She makes an unparticularised allegation of bias against the Tribunal, but there is no evidence to support that allegation.  She asserts that the Tribunal disregarded her participation in Falun Gong but it is apparent to me, from the Tribunal decision, that the Tribunal gave adequate consideration to her claims. 

10. In all the circumstances, I have decided that the request for an extension of time should be refused.  It follows that the application before the Court is incompetent and I will order that it be dismissed on that basis.

11. In consequence of the dismissal of the application, the Minister seeks an order for costs, fixed in the sum of $2,400.  Scale costs in this instance would be $1,175 but I accept that the Minister has been put to additional expense in this matter because of the need to prepare for and argue the issue of an extension of time.  The applicant says that she has no work but impecuniosity is not a reason for the Court to refrain from making a cost order.  I am satisfied the costs of not less than $2,000 have been properly and reasonably incurred on behalf of the Minister, when assessed on a party and party basis.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in that amount.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  27 October 2009