SZOIJ v Minister for Immigration
[2010] FMCA 565
•21 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOIJ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 565 |
| MIGRATION – Whether leave should be granted to file an application for review out of time – grounds of application considered. |
| Migration Act 1958 (Cth), ss.91R, 417, 477(2) |
| SZMFJ v Minister for Immigration [2009] FMCA 771 VQAN v Minister for Immigration [2003] FCA 1541 |
| First Applicant: | SZOIJ |
| Second Applicant: | SZOIK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1238 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 21 July 2010 |
| Date of Last Submission: | 21 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 21 July 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Newman & Associates |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Application dismissed.
The Applicants pay the First Respondent’s costs assessed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1238 of 2010
| SZOIJ |
First Applicant
| SZOIK |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
There comes before me today an application made under s.477(2) Migration Act 1958 (the “Act”) for the court to extend time for the lodgement of an application for review of a decision of the Refugee Review Tribunal that was, in this particular case, made on 30 May 2005 and which was handed down on 23 June 2005. Section 477 provides that an application to this court for a remedy that the court may give must be made to the court within 35 days of the date of the migration decision. Although this decision was handed down in 2005 it is conceded that by virtue of certain transitional provisions to amendments to the Act the date upon which this particular application is deemed to have been handed down was 13 March 2009. So the delay in making the application is from that date until 3 June 2010. Subsection 477(2) states:
“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.”
The history of the applications was dealt with in an affidavit by the second applicant, the wife of the person who the Tribunal, in its decision, considered to be the principal applicant. The wife attended the hearing and was asked by the Tribunal whether she wished to give any evidence but said that she did not [CB 79]. Today in her evidence she seemed to indicate that she had not been given this opportunity but her evidence was slightly confused by the fact that she was also saying that she did what she was told by the lawyer and by her husband and that she had been told by those persons that she need not say anything. I think it is most likely that she was asked by the Tribunal and she did declined to speak.
In her affidavit, the second applicant tells that early in 2005 after she and her husband had arrived in Australia with her son, they went to see a Mr Kumar, who they believed was a migration agent, and who worked out of a firm of solicitors, she does not name, in Fairfield. Mr Kumar agreed to undertake the filing of an application for a protection visa on their behalf, and clearly did so, although he is not named as their migration agent or as their authorised representative in any of the standard forms that were completed. The second applicant went with her husband back to Mr Kumar after their original application had been denied by the delegate and he appears to have agreed to assist them in making an application to the Refugee Review Tribunal. Once again, if he did so, then he is not nominated. The second applicant did not deny that they received a copy of the Tribunal’s decision. She said that they went again to Mr Kumar and had a conversation with him and he told them not to worry and that he would look after it. Mr Kumar does not appear to have explained to them what he intended to do but she says that she paid him a considerable amount of money. Mr Kumar then appears to have gone to ground but the applicants hunted him down, first, to an Indian grocery shop in Ingleburn and later to a house in Parramatta. On each occasion he told them that he was dealing with their claim and he was taking care of it.
It would appear from the second applicant’s evidence that by November 2005 they had some doubts about Mr Kumar. They went to see another solicitor who told them that they were too late to do anything about the decision. That advice would appear to have been correct at the time it was given. The applicant then tells of a series of unfortunate incidents to members of her family between 2006 and 2008 culminating in the death of her brother in August 2009. She says that during the course of 2008 they went to see a solicitor who the court recognises as an experienced practitioner in this field. Once again, they were told that their application was out of time and once again that advice would appear to have been correct.
One may wonder why it took four years, but it would appear that in November 2009 officers from the Department of Immigration came to visit the applicants. They then attended the DIAC Office and were granted Bridging Visa Es. They went to see a migration agent and he made an application on their behalf pursuant to s.417 of the Act. The Minister declined that application in March 2010. Following that, they went back to the last solicitor, not for themselves, but on behalf of their son. When the application made on behalf of the son was rejected the solicitor repaid the money they had given him. They then found their way to their current solicitor who filed the application with which I am now dealing.
The second applicant was cross-examined upon her affidavit. I accept that she probably was told that she did not need to say anything at the hearing before the Tribunal because her husband was the principal applicant and the person who had made all the claims. On the other hand I do believe that she was given an opportunity to speak if she wished. I note, however, that she does not make any independent claims in her application form and I do not think it could be alleged that the Tribunal fell into any jurisdictional error by not hearing from her in those circumstances. In any event, no such claim is made in the application which was filed with this court on 3 June.
The principal applicant was not called to give evidence and did not file an affidavit.
As Mr White, who appears on behalf of the Minister, says in his helpful written submissions, when the court comes to consider an application such as this it must take into account a number of matters. Those are:
a)the extent of the delay and the reason for the delay;
b)whether there is any merit in the substantive application;
c)whether there is any prejudice to the respondent;
d)the impact on the applicant;
e)the interests of the public at large;
f)the court’s discretion.
See SZMFJ v Minister for Immigration [2009] FMCA 771 at [44] and VQAN v Minister for Immigration [2003] FCA 1541 at [23].
The delay in this case is extensive if one looks back to the original decision. However, I can see that the applicants were unable to have done anything by way of application to this court until the amendments to the Act and Regulations were put in place in 2009. However, after that date there is still a substantial delay in respect of which there is no real evidence of justification. The unfortunate family history that the second applicant details in paragraphs 20 to 23 of her affidavit conclude on 1 August 2009 when her brother passed away. I am conscious of the fact that the person who alleges that he had a genuine fear of persecution for a Convention reason was not the second applicant, but her husband, and no evidence is offered from him as to why the delay occurred. I think this is very significant.
The substantive application that was put before this court contained three grounds. It is always difficult in these matters to tread the line between deciding the case and giving an indication of why the court considers that the grounds are without sufficient merit to warrant providing an extension of time. Generally one errs on the side of providing a fuller explanation. The first ground was:
“The Tribunal erred in its jurisdiction when in considering the claim that the first applicant was beaten up at work, it ignored the evidence that the co-workers were native Fijians and that the violence was wholly or partially racially motivated.”
That background is, with respect to the drafter, bordering on the incorrect. In the last paragraph, found at [CB 79] of the Tribunal’s decision, the Tribunal says:
“The applicant said that about two years ago, around May 2002, he was “badly beaten”. He said there were a lot of racial problems in his workplace. He said he was attacked by his co-workers because he prepared a report concerning their work behaviour. He gave the report to his supervisor who failed to take proper action and told the applicant that he would be transferred. The applicant said that his colleagues were dismissed and he was beaten on the same day. The applicant said he reported the assault to police but they did not take any action. The Tribunal put to the applicant that it was difficult to accept that his ethnic background was the essential and significant reason for his assault and that it was entirely plausible that he was assaulted because he complained about his colleagues.”
The Tribunal makes further reference to his matter [CB 81] in its findings and reasons. It accepted that it was plausible that the applicant was harmed by his colleagues but it was not satisfied that his ethnic background was the essential and significant reason for the assault. It took the view that it was entirely plausible that the applicant was assaulted because of his complaints. That statement clearly infers the Tribunal was aware the co-workers were native Fijians. It cannot constitute ignoring evidence and to my mind there is no merit in the ground.
The second ground was:
“The Tribunal failed to consider the possibility that the murder of the applicant’s worker was racially motivated and whether the authorities, although taking action to apprehend the perpetrator, were powerless to control communal violence.”
Once again the drafter appears to have not taken into account that this matter was considered by the Tribunal at [CB 81] and came to a conclusion that it could not be satisfied that the murder took place for any of the reasons enumerated in the Convention definition. The Tribunal noted that not only had the murder been reported to the police but a suspect was arrested. However, the more serious criticism of this ground is that it was not suggested that the murder of the bus driver came as a result of communal violence and I find it difficult to see the connection between what occurred and the alleged powerless of the police to control communal violence. To my mind that ground has so little merit that it would not be appropriate to grant an extension of time so that it could be argued.
The third ground was:
“The Tribunal failed to consider whether the livelihood of the applicant was materially affected by the apparent refusal by the authorities to grant a licence for the minibus business, despite the fact that the applicant was unable to ascertain for a whole 10 years the outcome of his application for a licence.”
The applicant’s complaint about the refusal to grant the licence for a minibus business was considered by the Tribunal at [CB 80] and discussed by it in its findings and reasons [CB 82]. The Tribunal came to a view that it could not be satisfied that the difficulties which the applicant faced in obtaining a permit were connected with his race or political connection with the Labour party or any other Convention ground. This being the case, the effect of what occurred, which might have brought that action within s.91R of the Act, is irrelevant. It should also be noted that even thought the applicant did not have a licence he seemed to have operated the business during all that time so it may well have been difficult for him to establish a financial loss other than the fines that he occasionally suffered. That ground is not strong enough to warrant the grant of an extension of time.
Before me today Mr Newman raised a further ground. He pointed out that at [CB 57] the delegate quoted from independent country information to this effect:
“On several occasions members of parliament (MPs) made racist remarks against Indo-Fijians. Evictions of Indo-Fijians tenant farmers by indigenous Fijian landowners occurred, often with no government response.”
Mr Newman argues that this matter was not taken into account at all by the Tribunal and it provides a contextual background which constituted a material fact to which the Tribunal gave no attention. It would seem from the manner in which he addressed me that this was the one ground upon which he hung his hat as to responding to the criteria of whether there was any merit in the substantive application. I have difficulty with this ground, not only because it was not contained in the application, but because the Tribunal acknowledges that it considered the country information that had been obtained from the delegate at the commencement of its reference to the claims and evidence. It could not be said that he did not take that into consideration. The Tribunal is not obliged to make reference to every piece of evidence and also not obliged to explain why it does or does not accept it. I read the independent country information myself about three times during the course of the hearing. It is difficult to say exactly to what date it refers. It appears to be some time between 2000 and 2005. During the whole of that period the applicant, who had once come to Australia in 2000 and returned to Fiji of his own volition, and remained there. This would appear to justify the Tribunal’s view expressed at [83] but when all the matters raised by the applicant were considered cumulatively:
“The Tribunal finds the applicant’s explanation about the lack of lodging a protection visa in 2000 to be unpersuasive. Looking at the evidence as a whole, the Tribunal is satisfied that the delay in lodging an application for a protection visa supports a finding that the applicant does not have a genuine fear of persecution.”
Whilst I accept that Mr Newman could, at any subsequent hearing, embellish his argument on this point, it does seem to me to be one of sufficient strength to warrant the grant of an extension of time.
There is no prejudice to the respondent if I granted an extension of time. There is obviously a serious impact on the applicants if I do not, because they will, subject to the inevitable appeals, be removed and returned to Fiji in due course. However, if one takes into account the prospects of success in such an application before me, then possibly that impact is ameliorated. The interests of the public at large are for the speedy determination of administrative matters and this particular matter has not been speedily determined. The grant of an extension of time which, in my view, will inevitably lead to a rejection of the application will hardly assist those interests. Nothing has been said to me that would encourage me to exercise my discretion favourably to the applicants outside of the consideration that I have already given to the matters that need determination. This is not a case where the applicants have suffered from ill health or for any other extraneous reasons have been unable to make the application. In these circumstances I decline to grant leave. I dismiss the application and the substantive application. I order that the Applicants pay the First Respondent’s costs assessed in the sum of $4,000.00.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 3 August 2010
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