SZOWV v Minister for Immigration
[2010] FMCA 1024
•23 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOWV v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 1024 |
| MIGRATION – Application for an extension of time in which to appeal – whether the proposed appeal would enjoy any prospect of success – no prospect of success – application for an extension of time dismissed. |
| Migration Act 1958 (Cth), ss.48A, 198, 417, 477(2) |
| Chan Ta Srey v MIMA (2003) 134 FCR 308 |
| Applicant: | SZOWV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2787 of 2010 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 23 December 2010 |
| Delivered at: | Sydney |
| Delivered on: | 23 December 2010 |
REPRESENTATION
| Solicitors for the Applicant: | The applicant appeared in person with the assistance of a Spanish interpreter. |
| Solicitors for the Respondents: | Mr R White (Sparke Helmore) |
ORDERS
The application, filed on 23 December 2010, for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth), is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the amount of $1,175.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2787 of 2010
| SZOWV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex-tempore)
Background
The applicant arrived in Australia on 25 November 1997 and lodged an application for a Protection (Class AZ) visa on 8 January 1998. A delegate of the Minister refused the application on 5 March 1998. The applicant was renotified of the decision by a letter dated 11 August 2009 as the matter was affected by Chan Ta Srey v MIMA (2003) 134 FCR 308. The applicant lodged an application for a review of the delegate’s decision on 26 August 2009. The Refugee Review Tribunal (“the Tribunal”) upheld the Minister’s decision on 19 January 2010. The applicant has lodged four unsuccessful applications to the Minister under the provisions of s.417 of the Migration Act 1958 (Cth) (“the Act”) On 29 March 2010, the applicant made a further application for the Minister to exercise its discretion and to substitute the decision for a more favourable one.
The proceedings
The applicant lodged an application to this Court on 23 December 2010 seeking judicial review of the Tribunal’s decision made on 19 January 2010. The applicant was placed in immigration detention and on
17 December 2010, the applicant was notified that he would be removed from Australia on 24 December 2010, in accordance with the Department of Immigration & Citizenship’s (“the Department”) obligation to remove him pursuant to s.198 of the Act.
Therefore, the Minister, acting as a model litigant, has sought to bring the application prior to removal so that the applicant is provided with procedural fairness.
The question to determine is preliminary in nature and is concerned with whether or not an extension of time should be granted pursuant to s.477(2) of the Act.
Applicant’s submissions
The application contained two grounds including:
1. Denial of natural justice.
2. The Tribunal member relied on the applicant’s opinion in making her decision.
The application also contained three grounds pertaining to the extension of time issue:
1. I was unaware of my rights to appeal the RRT decision handed down on 19 January 2010 and I am now seeking advice as to my rights to appeal that decision and my rights for extension of time to appeal.
2. My wife, Sandra Tiqraue Colarado, has an application before the immigration department for a Protection visa. Should my wife be granted permanent residency, I will apply for and, in due course, expect to be granted permanent residency.
3. It is anticipated that I may be required to provide affidavits, and potentially evidence, in support of my wife’s protection visa application.
The applicant provided his evidence and submissions from the witness box and was cross-examined in relation to these. In response to the extension of time issue, the applicant told the Court that his legal knowledge is minimal and that he was not aware of the 35 day time limit. The applicant advised the Court that his wife was in detention and that he was concerned for her health and mental well-being.
Respondent’s submissions
On the issue on whether time ought to be extended in the interests of the administration of justice, Mr White submitted that a number of factors should be considered. The extent and the reason for the delay are two factors which need to be assessed. The delay of 303 days, particularly having regard to the 35 day time limit, is excessive and inordinate. Mr White submits that the excessive delay has not been satisfactorily explained.
Mr White noted that the applicant said in his oral evidence that his complaint was confined to the manner in which the Tribunal used the evidence which is an issue concerned with merits review only.
Mr White submits that the substantive application has no merit and the respondent would have been unfairly prejudiced if the matter continued and was forced to face the additional cost and burden of litigation that had no prospect of succeeding.
Pursuant to s.198 of the Act, the applicant is liable to be removed from Australia. Mr White submits that the public interest at large is a further consideration to which the Court should have regard. Importantly, the applicant was provided with the opportunity to explain, support and put his claims to the Tribunal but he was not found to be a refugee. He did not and he has not sought to promptly pursue his judicial review rights in relation to the Tribunal’s decision, and his present attack on the Tribunal’s decision is completely without merit. It was submitted by the respondent that the reason for the present application was because he wanted to avoid removal.
The concern that the applicant has for his wife does not support the question of whether time ought to be extended, taking into account all of the circumstances of this case. It is highly speculative that the applicant would ever be able to obtain permanent residency in connection with his wife’s purported protection visa application, which was only lodged on 26 November, particularly in circumstances where he is s.48A barred, after having previously submitted an application himself. The applicant also stated in his affidavit that he could provide affidavits and potentially evidence in support of his wife’s protection visa application, but this does not assist the applicant. There is no requirement for the applicant to remain in Australia so that he can provide evidence.
Conclusion
I accept the submissions put forward by Mr White. The extension of time issue and the long delay of 303 days is well outside the time limit permitted for an application to this Court. Sufficient notifications were provided to the applicant together with an adequate explanation of what review rights the applicant held which enabled the applicant to approach this Court for a review of the Tribunal decisions.
There are no grounds of judicial error apparent in the Tribunal’s decision. The challenge before the Court was concerned with the merits of the Tribunal’s decision. This Court only has jurisdiction to determine whether the Tribunal member accurately and correctly interpreted and applied the law, including the regulations, to its decision. There is nothing that appears in the Tribunal’s decision to indicate that the Tribunal member has not followed this correctly. What remains are public interest issues, which the Court has an opportunity to extend.
I am not convinced that the outcome of this matter would be different if the applicant was granted an extension of time in which to obtain further advice and preparation of his matter. There is nothing to suggest that any ground identified in the applicant’s application would be successful on further review.
The applicant has made a number of applications to the Minister, none of which have been successful and there is nothing before the Court to suggest that the ultimate outcome in this matter would differ.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 19 January 2011
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