SZOUJ v Minister for Immigration

[2011] FMCA 83

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOUJ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 83

MIGRATION – Application for extension of time – where applicant received Tribunal decision some 18 months prior to filing application with the Court – where applicant claimed his migration agent told him not to take any action and gave inconsistent evidence about when he became aware that he could make an application to this Court – merits of the application considered – whether Tribunal failed to properly consider corroborative evidence.

Migration Act 1958 (Cth), ss.459, 477

SAAP v Minister for Immigration (2005) 228 CLR 294
Gararth v Minister for Immigration [2006] FCA 316
Vu v Minister for Immigration [2008] FCAFC 59
WAEE v Ministerfor Immigration (2003) 75 ALD 630
Minister for Immigration v SZNSP [2010] FCAFC 50

First Applicant: SZOUJ

Second Applicant: SZOUK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2500 of 2010

Judgment of: Raphael FM

Hearing date: 4 February 2011

Date of Last Submission: 4 February 2011

Delivered at: Sydney

Delivered on: 4 February 2011

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. Application for extension of time dismissed.

2. Applicants to pay the First Respondent’s costs assessed in the sum of $2,935.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2500 of 2010

SZOUJ

First Applicant

SZOUK

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There comes before me this morning an application to extend the time in which an applicant may be permitted to file an application to this Court seeking review of a decision of the Refugee Review Tribunal pursuant to s.477 of the Migration Act1958 (Cth) (the “Act”). That section imposes a time limit on applications to this Court of 35 days but provides in sub-s.2 that:

   “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.”

2. In the instant case, the application for extension of time was made in writing by being included within the application itself.  The form which the applicant used states:

   “Note: an extension of time is required if the application is not made within 28 days of the actual (as opposed to deemed) notification of decision; see section 477 The Migration Act 1958. If it is required, the applicant must file an affidavit explaining the delay and the reasons why an extension of time should be granted.”

   This note is inaccurate because s.477 was amended to provide for a 35-day limit some considerable time prior to 19 November 2010 when the form was completed. It is only to be hoped that the forms available on the internet which the applicant undoubtedly used have now been changed to accurately reflect the statutory position.

3. Underneath the note extracted above, the applicant has given as a ground for extension of time:

   “The decision of SAAP was not in force and therefore there was a miscarriage of justice.  The Tribunal fell into jurisdictional error in that it did not consider all the applicant claims.  I believe that it is important for the shake [sic] of natural justice that my application be allowed for filing with extension of time.”

   The applicant also filed an affidavit which he had sworn on 4 November 2010, but this only states that the Tribunal did not accept him as a credible witness and attaches the decision record. 

4. As SAAP v Minister for Immigration (2005) 228 CLR 294 was decided by the High Court of Australia in 2005, it can hardly be said that it was not in force in 2009 when the decision of the Refugee Review Tribunal was made. And as the applicant filed no evidence explaining the reasons for the delay and why an extension of time should be granted, this Court could well dismiss the matter at this point. However, the applicant gave some evidence as to the reasons for his delay and it is well that the Court deals with that.

5. The applicant told that he received a copy of the decision of the Tribunal shortly after it was handed down on 26 March 2009. He says that he didn’t speak much English and so he didn’t really understand the nature of the decision. He didn’t do anything about it immediately but contacted the person who he said was his migration agent. He had given no indication that he had a migration agent in either his PVA or his application to the Tribunal. Indeed, he told the Tribunal in section (c) of his application [CB 58] that he did not have an adviser authorised to act for him in relation to this application. There must, therefore, be considerable doubt as to whether the applicant had a registered migration agent acting for him or whether he just relied on the advice of “friends”.

6. He told the Court after he sent the documents to the agent, the agent informed him that he still had another year on his visa and that he should do nothing. The applicant then told that, in or around August 2009, he went to the Immigration Department because his wife was having a baby and he wanted some assistance. He was then advised that he was illegal, so he approached a friend and the friend advised him that he could make an application to the Minister. When he was giving his evidence, the applicant said that the friend also told him that he could apply to this Court.

7. The applicant did apply to the Minister in August 2009 and that application was rejected in January 2010.  The applicant told that he received the rejection letter and said that he knew at that time that he could make an application to the Court.

8. The applicant did nothing about the rejection from the Minister until about March 2010, when he told his boss. His boss told him that he thought he could sponsor him for a visa, presumably a s.459 type visa. The applicant told the Court that he knew then that he could apply to this Court for review of the decision of the Tribunal. There was then a hiatus until the application was made and, under cross-examination, the applicant said that it was only then that he was told that he could make an application to this Court.

9. I was not impressed by the way in which the applicant gave his evidence.  I quite understand that, even with the benefit of an excellent interpreter such as Mr Sani, it may still be difficult for a non-English speaker to grasp the full import of some questions.  However, Ms Whittemore made it clear to the applicant that she had concerns about the date upon which he was prepared to admit he knew about his rights to apply to this Court and he still effected to change that date three times in a manner which he considered would best assist his case.

10. I am, therefore, unable to accept that the first time the applicant became aware of his right to approach this Court for review of the decision was shortly before the application was filed.  I think his first evidence, that the person who told him about his rights to ask the Minister to intervene also told him about his rights to apply to the Court, is more likely to be the truth.

11. In my view, the delay by the applicant in making this application has not been satisfactorily explained to a state that the Court can be satisfied that it was necessary in the interests of the administration of justice to extend the period.

12. Even if it could be said, following the decision of Gararth v Minister for Immigration [2006] FCA 316, that the applicant was entitled to wait until after the Minister’s decision upon his request for intervention had been determined, there was still a delay of some 10 months before filing and I note that in Vu v Minister for Immigration [2008] FCAFC 59 Jessop J, with whom Gyles and Besanko JJ agree, held [29]:

    “I do not think that the applicant’s approach to the Minister under section 351 of the Act provides an acceptable explanation for his failure to lodge an appeal within time.”

13. Although I am of the view that the application should be dismissed because of the applicant’s lack of explanation, I believe I should consider the merits of the application itself because, if they were overwhelming, then perhaps the delay might be forgiven.  Unfortunately for the applicant in this case, they are not.

14. The applicant is a citizen of India who the Tribunal accepted had some connection with the Congress Party.  It did not accept that he controlled 8000 votes in his local area, as he claimed.  Nor did it accept that shortly before an election, the applicant and his wife were kidnapped and held by persons associated with the BJP in order to prevent him getting out those votes.

15. The Tribunal based its findings on the applicant’s credibility, which are findings that are for the Tribunal to make and not for this Court to interfere with.  Given the applicant’s evidence and the independent country information, the decision of the Tribunal was based upon available evidence and the conclusions it made were logical.

16. In a substantive application to this Court, the applicant says that the Tribunal constructively failed to exercise its jurisdiction.  He says:

    “The applicant provided documents to the Tribunal to corroborate his claims.  In particular, the applicant provided a copy of the membership card of the Congress Party and a letter from SB, a Congress Party MLA.  The Tribunal failed to engage in an active intellectual process in respect of those documents.  The Tribunal member ultimately gave the documents no weight on the basis of credit findings.  It was an error for the Tribunal to place no weight on the documents without engaging in an active intellectual process as to the contents of the documents.  It was an error for the Tribunal to assess the applicant credit without first assessing whether the substances of the documents corroborated his claims.”

    The statement contained in these particulars is not entirely accurate.  Firstly, the Tribunal accepted that the applicant was a member of a Congress Party and noted the existence of the Congress Party membership card, so the applicant was not in any way prejudiced in that regard.  Secondly, the Tribunal noted that the MLA had given a letter [70] [CB 101] and again at [74] [CB 101] where it said:

    “SB had provided him with a reference.  I am satisfied that the applicant has contact with an MLA and I do not accept that he is unable to express his view to those in positions of power.”

17. The letter from the MLA states that the applicant is from his parliamentary constituency and goes on to say:

    “Mr [Applicant’s] form No. is 809 and his father wants his visa to be extended further for one year as he feels his son’s life could be in danger due to threats he has received from some people.  I shall be very grateful if Mr [Applicant’s] visa is extended for another year.” [CB 86]

    This statement is clearly hearsay. The MLA has no knowledge whatsoever of any danger to the applicant and it would appear that not even the applicant’s father is prepared to say who is threatening his life.  There is no evidence in that document of a Convention related claim.  It follows that to the extent that the Tribunal may be said not to have dealt with the representations made by the applicant’s father through the MLA they were not relevant and no jurisdictional error could be shown because one particular part of a piece of evidence was not referred to.  In WAEE v Ministerfor Immigration (2003) 75 ALD 630 at [47] the Full Bench, French, Sackville and Healy JJ said:

    “The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.  But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.”

    The issue in this case was certainly identified by the applicant and it was dealt with by the Tribunal, which questioned the applicant and then concluded that he was not telling it the truth.

18. Insofar as the applicant maintains that the alleged corroborative document should have been considered before the Tribunal concluded its views about the applicant’s credit, this has not found favour with the Full Bench of the Federal Court that in Minister for Immigration v SZNSP [2010] FCAFC 50 said at [37]:

    “Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 [2003] HCA 30; 198 ALR 59. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally and thereby fall into jurisdictional error by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.”

19. The second ground of application put forward is:

    “The Tribunal exceeds [its] jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958.”

    This claim is not particularised in any way.  Ms Whittemore, in her helpful oral submissions, suggests that it is a reference to the Tribunal’s obligation (or non-obligation) to inquire.  It may well be but I do not think that it is for a Court to try and guess what an applicant meant when his grounds of application are not expressed clearly and he does not provide any further elucidation in his oral submissions to the Court.

20. In all the circumstances, I cannot be satisfied that the application had any reasonable prospects of success and certainly none that would outweigh the extensive delay in bringing the application before the Court. The application for an extension of time is dismissed. The applicants should pay the first respondent’s costs assessed at a sum of $2,935.00.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  17 February 2011