SZOXA v Minister for Immigration
[2011] FMCA 298
•17 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOXA v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 298 |
| MIGRATION – Review of decision of Refugee Review Tribunal – application for an extension of time – applicant physically prevented from filing or attempting to file application with the Court Registry – whether it is in the interests of the administration of justice to extend time for making the application – application dismissed as not competent. |
| Federal Magistrates Court Rules 2001 (Cth), r.13.03C Migration Act 1958 (Cth), ss.36, 65, 414, 425, 425A, 426A, 441A, 441C, 476, 477 Acts Interpretation Act 1901 (Cth), s.36 |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568 NBHP v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1857 Semunigus v The Minister for Immigration & Multicultural Affairs [1999] FCA 422 Shah v Minister for Immigration & Multicultural Affairs [2000] FCA 489 Eshetu v Minister for Immigration and Ethnic Affairs [1997] FCA 19; (1996) 142 ALR 474 Minister for Immigration & Multicultural Affairs v Mohammed [2000] FCA 576; (2000) 98 FCR 405; (2000) 173 ALR 23 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 |
| Applicant: | SZOXA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2821 of 2010 |
| Judgment of: | Nicholls FM |
| Hearing date: | 17 March 2011 |
| Date of Last Submission: | 17 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 17 March 2011 |
REPRESENTATION
| The Applicant: | No appearance |
| Appearing for the Respondents: | Ms E Warner Knight |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for an extension of time made on 31 December 2010 pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.
The application made to the Court on 31 December 2010 is dismissed as not competent.
The applicant pay the first respondent’s costs set in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2821 of 2010
| SZOXA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
This matter came on at a first Court date on 19 January 2011. The applicant appeared in person. The Minister was represented by a solicitor. Short minutes of order were handed up. I made orders on that day in the presence of the applicant, and amongst those orders I ordered that the matter be set down for final hearing on 11 March 2011, at 10.15am, before me here in this Courtroom. This was subsequently rescheduled to a later date of Thursday 17 March 2011 at 10.15am.
I am satisfied the applicant was given reasonable notice of this.
When the matter was called outside the Court today there was no appearance by the applicant. The matter was stood down. Twenty minutes later, when I resumed, there was still no appearance by the applicant when the matter was called. I note it is now half an hour past the scheduled time and there still has been no appearance by the applicant.
In these circumstances, and in the absence of the applicant, the Minister’s representative, Ms Warner Knight, has asked that the Court proceed with the hearing pursuant to r.13.03C(1)(e) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”). In my view, in the circumstances, that is an appropriate course of action.
The applicant had notice of the time, date and place of the hearing of his matter. I am satisfied he had more than reasonable notice. He was physically present in Court, with the assistance provided by an interpreter. I can see no reason not to proceed in the absence of the applicant generally, but specifically I agree with Ms Warner Knight that in the current circumstances it is appropriate that I proceed with the hearing rather than dismiss for non-appearance (pursuant to r.13.03C(1)(c)) of the Rules.
In that regard, Ms Warner Knight relied on her submissions. As the material otherwise put before the Court in anticipation of a hearing and in conformity with orders made at the first Court date (the Court Book – “CB”) reveals, the applicant, having applied for a protection visa, had without explanation not attended the interview before the delegate (CB 42), elected not to attend the hearing before the Tribunal (CB 59), and now, without explanation, has absented himself from this event.
Consideration
Having considered all the material that has been put before me, albeit in a limited way, by the applicant, there are two applications the applicant has put before the Court. One is an application for an extension of time for the making of such an application to the Court. The other contains grounds by way of amended application complaining about the Tribunal decision.
For the reasons that I am about to give, the application for an extension of time should be refused, and the substantive application should therefore be dismissed as not competent.
I have before me an application made to this Court on 31 December 2010, and amended on 28 February 2011. It was made under s.476 of the Migration Act 1958 (Cth) (“the Act”), and seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 24 November 2010, which affirmed the decision of the delegate of the first respondent to refuse a protection visa to the applicant. As referred to below, the amended application is no more than an expansion of the claims to be a refugee.
Background
I note, as I said earlier, that I have a bundle of relevant documents (Court Book) before me, filed by the Minister in accordance with orders made previously by this Court.
Having regard to that Court Book, I note the applicant is a citizen of India who arrived in Australia on 20 July 2008 and applied for a protection visa on 6 March 2010 (CB 2 to CB 32 with annexures).
Claims to Protection
The applicant’s claims to protection are set out in a “statement of claim”, submitted with his protection visa application (CB 2 to CB 3).
The applicant claimed that members of his family are extremist Hindus and that he is a member of a particular Hindu party (the Hindu Sheve Sana Party/Hindu Daram Parchar Party) and to have worked for that party while he was a student in the Indian state of Gujarat. The student wing of this party was involved in clashes with the Muslim Student Federation (“MSF”) and the applicant claimed that his name had been included on a “hit list” of the MSF, and that there was an attempted “raid” on his house to kill him. He reported this to the state authorities but the authorities, in his words, “could not gain the control over them.”
The Delegate
I note that the applicant was invited to an interview by the Minister’s delegate. This was set down for 6 May 2010 (CB 33). The applicant did not attend and did not provide any reasons for his non-attendance (CB 42).
On the evidence before him the delegate was not satisfied that the applicant had a well-founded fear of persecution (CB 45 and CB 47) as the claims made by the applicant were described by the delegate as being vague, unsubstantiated (CB 45) and, therefore, were to be rejected. I understood that to be because the requisite level of satisfaction could not be reached, given that the applicant did not attend at the interview to explain, or enhance, his claims.
The Tribunal
In any event, the applicant applied for review by the Tribunal on 6 October 2010 (CB 49).
The Tribunal wrote to the applicant by letter dated 18 October 2010. The letter was, on the best evidence available to the Court, sent to the address provided to the Tribunal for that purpose (CB 54). It told the applicant that, on the material before it, the Tribunal was unable to make a decision favourable to him, invited him to attend a hearing on 29 April 2010 and provided to the applicant the usual form so that the applicant could indicate whether he would attend or not, whether he required witnesses and matters of that type.
The applicant responded to the Tribunal on 22 November 2010 that he would not attend to take part in the hearing (CB 59).
In these circumstances, the Tribunal proceeded to make a decision on 24 November 2010. I note this was prior to the previously scheduled date of hearing (CB 66). The Tribunal found the applicant’s claims to be lacking in detail and was not satisfied on the evidence before it that the applicant had either suffered persecution in the past or that he had a well-founded fear of persecution if he were to return to India in the foreseeable future ([25] at CB 71). The Tribunal therefore affirmed the delegate’s decision ([27] at CB 71).
Before the Court
As I said earlier, when the matter was called today, on both occasions, there was no appearance by the applicant. Ms Warner Knight appeared for the first respondent. I should acknowledge Madam Interpreter, who has made herself available in case the applicant was to appear.
The Court has nothing further from the applicant. What the Court does have, as I said, is the originating application, an application for an extension of time, and the grounds in the amended application.
Section 477(1) of the Act provides that applications of this type to the Court must be made within 35 days of the date of the migration decision. In the current case, the Tribunal’s decision was made on 24 November 2010. The application to the Court should, therefore, have been made to the Court by 29 December 2010 in order for it to have complied with the requirements of s.477(1).
I note in this regard that at that time of the year there are, clearly, a number of public holidays arising from Christmas. But 29 December 2010 was a Wednesday, which, with reference to s.36(2) of the Acts Interpretation Act 1901 (Cth), was not a Saturday, Sunday, a public holiday or a bank holiday. Had it been, the period for filing would have been extended until the next available day that was not a Saturday, Sunday, a public holiday or a bank holiday.
That day, however, Wednesday, 29 December 2010, was a day on which the Court’s registry was closed. In my view, it was closed not because it was a public holiday, a bank holiday, a Saturday or a Sunday, and raises the interesting question as to how the Court should therefore proceed in circumstances where the applicant would have been physically prevented from filing or attempting to file his application within time, although I note that in this electronic age, facsimile communication or electronic filing would have overcome that problem.
But in any event, and happily for the Court, the application could have been filed on the following Thursday, 30 December, when the Court’s registry was open. It was not. It was not filed until the next day, Friday, 31 December.
So while we are dealing with obviously a very, very short period, nonetheless the application, having regard to the time limit set out in s.477(1), even if the Court were to take a generous view of the circumstances, is still out of time, as I said albeit by a very short period. The applicant has applied for an extension of this time, pursuant to s.477(2), and this application appears to comply with s.477(2)(a).
The question then becomes whether the Court should extend the time for the making of the application, pursuant to s.477(2)(b). That is, whether it is in the interest of the administration of justice to do so.
The elements relevant to such consideration include the length of any delay, whether there is satisfactory explanation for the delay, whether there is any impact on the applicant, any prejudice to the Minister and, for reasons which will become clear in a moment, whether the grounds of the application, or in this case the amended application, contain sufficient merit such that it is in the interests of the administration of justice that they be allowed to go forward to be considered by the Court.
Consideration
The applicant has provided no evidence to explain the delay in making his application to the Court, but I note that in the application itself the applicant provides an explanation of sorts which, coupled with the very, very short length of the delay, whether that be one or two days, means that the Court would not refuse to extend time simply on the basis of this delay. I do not see that, in all the circumstances, that would be a sufficient reason on its own to refuse to extend time.
Nor would I be minded to do so based on any prejudice to the Minister, though in any event, no such claim has been made to the Court. Any impact or prejudice to the applicant, that is his enforced removal from Australia, must be seen in light of his unexplained failure to attend first the interview with the delegate, and then his voluntary relinquishing of his right of a hearing before the Tribunal.
But all of these matters, really, can be put to one side. The reason that I am of the view that it is not in the interests of the administration of justice to extend time in this matter is that I cannot see any merit in the application such that the matter should proceed to a further hearing.
Further, I say that to do so, in the circumstances, would be an exercise in futility. Underlying the applicant’s grounds in the amended application is, in my view, an important misapprehension as to the nature of the Tribunal’s decision and the statutory task facing the Tribunal. The relevant statutory regime, and in particular I note here ss.414, 65 and 36(2) of the Act, for matters involving an application for a protection visa requires the Tribunal to properly consider the claims as made and to reach a requisite level of satisfaction that, in effect, the applicant meets the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention.
The applicant, as I said earlier, made certain claims in a written statement accompanying his protection visa application, which the Minister’s delegate found to be vague and unsubstantiated. The applicant was invited to an interview to explain his claims but, without explanation, as I said earlier, the applicant did not attend. In these circumstances the delegate could not be satisfied that the applicant should be granted the protection visa.
When the Tribunal invited the applicant to a hearing for essentially the same purpose as the delegate, the applicant did not merely not attend, but stated his election not to do so. In inviting the applicant to the hearing the Tribunal made it clear that it could not reach a favourable decision on the evidence available to it (in its letter of invitation to the hearing which the applicant obviously received).
What must be emphasised is that it would have been quite clear to the applicant that the hearing was his opportunity to explain his claims. In these circumstances it is difficult to see why the applicant then sought to press his application before the Court.
I note by way of observation that these parts of the amended application that in effect ask the Court to take into account country information are matters that should more properly have been pressed before the Tribunal. As it stands, this part of the amended application cannot assist the applicant before the Court. It is trite to say that this Court cannot engage in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568).
In any event, the following can relevantly be said about the grounds of the amended application.
First, the Tribunal complied with its obligation pursuant to s.425 to invite the applicant to a hearing. The invitation complied with all the statutory and regulatory requirements (ss.425A, 441A and 441C of the Act, reg.4.35D(b) of the Migration Regulations 1994 (Cth)). The letter of invitation stated the consequences for the applicant of his not attending the hearing as being that the Tribunal may proceed to a decision without taking any further action.
The Tribunal did proceed to its final decision before the scheduled date of the hearing, as had previously been advised to the applicant, in light of the applicant’s election not to attend the hearing. No error is revealed in these circumstances. The applicant’s response that he did not wish to attend the hearing meant that there was no longer any obligation on the Tribunal to conduct the hearing.
As submitted by Ms Warner Knight, in effect the applicant consented to this course of action. I note here ss.425(2)(b) and (3) of the Act.
In these circumstances, in relinquishing his right to attend a hearing, the obligation for the hearing at that point ceases. There is no error in the Tribunal proceeding the way that it did (NBHP v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1857).
Nor is error revealed in the Tribunal’s exercise of its discretion pursuant to s.426A. The decision to proceed, in all the circumstances, was neither arbitrary nor capricious.
Turning specifically to the grounds in the amended application, ground one is, to a large extent, and I say this with respect to whoever drafted this, whether the applicant or somebody on his behalf, impenetrable as to meaning. At best, I understand it to be a complaint that the Tribunal should have found that he had a well-founded fear of persecution simply on what he had chosen to put in his initial statement.
As the Minister submits, this simply seeks impermissible merits review. In any event, the Tribunal’s finding, its conclusion, was reasonably open to it on what was before it. Ground one is not made out and clearly, in the circumstances, lacks merit.
Ground two merely restates the applicant’s claim to fear harm from extremist Muslim groups. I agree with the Minister that it does not assert jurisdictional error on the part of the Tribunal. To the extent that perhaps it impliedly asks the Court to make findings of fact in this regard, that is in relation to his claims to be a refugee, the Court, as I said earlier, cannot do so. The ground fails to reveal any merit for the same reasons as ground one.
Exactly the same can be said for ground three. It is just a continuation of this assertion of persecution.
Ground four appears to contain two limbs. The first is a complaint that the Tribunal failed to make some reference to the “United Nations Handbook”. I took that to mean the handbook put out by the United Nations High Commissioner for Refugees, made in Geneva (“UNHCR Handbook”). No specificity is provided. Nor does the applicant explain how this can lead to show jurisdictional error on the part of the Tribunal.
What the Tribunal is required to have regard to, relevantly, is the Convention itself and relevant Australian law, which explains the Convention and the application of the Convention for Australian purposes. This is the law which provides direction as to how the Tribunal is to go about its duty to review the delegate’s decision.
The Tribunal is bound to follow Australian law. If there is an absence of binding authority, it may have regard to the UNHCR Handbook, but that is not binding on the Tribunal, it is, at best, a guide only (Semunigus v The Minister for Immigration & Multicultural Affairs [1999] FCA 422 per Finn J, Shah v Minister for Immigration & Multicultural Affairs [2000] FCA 489, Eshetu v Minister for Immigration and Ethnic Affairs [1997] FCA 19; (1996) 142 ALR 474. In particular I note Minister for Immigration & Multicultural Affairs v Mohammed [2000] FCA 576; (2000) 98 FCR 405; (2000) 173 ALR 23 per French J, as he then was).
In short, there is no error in the Tribunal failing to follow some prescription in the UNHCR Handbook which is not the subject of domestic law. In any event, as I said, the applicant does not point to any such specific failure by the Tribunal.
The second limb, if I can call it that, of ground four, appears to take issue with what is said to have been country information relied on by the Tribunal. The difficulty for the applicant is that the Tribunal made no reference to any such country information in its decision record. This is so because, given the nature of its reasoning that I have referred to before, that is the requisite level of satisfaction in light of the applicant’s vague and unsupported claims, it did not need to rely on any country information. In any event, it did not in fact do so.
But in any event I note, as Ms Warner Knight submits, that the choice and weight accorded to country information is a matter for the Tribunal to determine (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10). The report referred to by the applicant in this ground was, in fact, referred to by the delegate (CB 45). For the sake of completeness, I note that this Court has no power to review the delegate’s decision, given that it was at least reviewable by the Tribunal (s.476(2) and s.476(4) of the Act).
I should just note that ground five, again, merely seeks to extend what was said in ground four. Both grounds reveal no merit in terms of leading to any jurisdictional error on the part of the Tribunal.
Ground six repeats the same complaint and fails for the same reasons. It does not assert or reveal jurisdictional error in the Tribunal’s decision.
To the extent that ground seven also complains about the delegate’s decision, it also reveals no merit for the reason that I have already explained. Beyond that, if it seeks to include the Tribunal in the complaint, it is nothing more than a challenge to the Tribunal’s factual findings. It does not, therefore, reveal jurisdictional error on the part of the Tribunal. It also lacks merit.
The applicant, obviously, was not here today to press his complaints.
I have, therefore, nothing further from him than what is in the grounds of the amended application. I can only conclude by saying that the applicant was put on notice of the delegate’s decision, and if not that by the Tribunal’s letter of invitation to the hearing, that it was important for him to attend the hearing to promote his claims. He chose not to do so. In the circumstances, the Tribunal’s decision was, as has been described by a Full Federal Court in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, the “inevitable consequence” of his decision. That is, the Tribunal’s decision to affirm the delegate’s decision in circumstances where it could not reach the requisite level of satisfaction as to the matters set out in s.36(2) of the Act, that is met the definition of “refugee”, is the “inevitable consequence” of the decision not to attend the hearing.
None of the applicant’s grounds or complaints reveals error in the Tribunal’s decision. In fact, none of them reveal any merit such that it could be said that some further consideration may advance the grounds to something worthy of some future contemplation. Once the complaints about the delegate’s decision are extracted from the grounds, which perhaps should be more properly described as complaints, this Court has no jurisdiction to review the remainder.
Where the complaints are complaints of how, allegedly, the Tribunal should have gone about its task or assertions, that is with a reference to the UNHCR Handbook, or assertions that the Tribunal looked at country information, whatever way you choose to read the applicant’s complaints, what is clear is that there is no merit such as to show now, or even were the matter allowed to proceed any further, to show in the future, that there is jurisdictional error on the part of the Tribunal.
In short, on the grounds as put before the Court, albeit left unexplained or without further submission by the applicant despite opportunity, there is no hope of success. To grant the extension of time pursuant to s.477(2) in these circumstances would be an exercise in futility.
For that reason the application for an extension of time is refused. What the Court is left with then is an application that is not competent and therefore should be dismissed as not being competent. I will proceed to make those orders.
Costs
It is appropriate that an order for costs be made in this matter. If the applicant did not want to press his claims, he could have perhaps saved himself some money by raising that with the Minister’s solicitors at an earlier time. But the way the applicant left it, unexplained before the Court, it is appropriate that an order for costs be made. There is nothing before the Court to argue against the order being made in the normal course.
As to the amount, it is, by whatever measure, whether regard is had to the relevant Schedule to the Rules of this Court or to the work actually done by the Minister’s solicitors, including attendance today before the Court, in my view, a reasonable amount. I will make the order in the amount sought.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 11 May 2011
9
4