SZPZU v Minister for Immigration

[2011] FMCA 260

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZPZU & ORS v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 260

MIGRATION – PRACTICE AND PROCEDURE – Refugee Review Tribunal – whether time should be extended to applicants for judicial review of a decision of the Refugee Review Tribunal– whether applicants had satisfactory explanation for delay – whether applicants’ application for judicial review had any reasonable prospects of success.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 65(1); 65(1)(b); 425; 425A; 426A; 441A(4); 441C; 474

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

First Applicant: SZPZU

Second Applicant: SZPZV

Third Applicant: SZPZW

Fourth Applicant: SZPZX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 408 of 2011

Judgment of: Emmett FM

Hearing date: 6 April 2011

Date of Last Submission: 6 April 2011

Delivered at: Sydney

Delivered on: 6 April 2011

REPRESENTATION

The Applicant appeared in person assisted by a Korean interpreter

Solicitors for the Respondent: Ms Dejean (AGS)

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 408 of 2011

SZPZU

First Applicant

SZPZV

Second Applicant

SZPZW

Third Applicant

SZPZX

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application by the first-named applicant for an extension of time in which to seek review of a decision of the second respondent, the Refugee Review Tribunal dated 20 September 2010 (“the Tribunal”), which affirmed a decision of a delegate of the first respondent not to grant the applicants’ protection visas.  The second applicant is the first applicant’s husband, and the third and fourth applicants are the children of the first and second applicants.  The claims of the second, third, and fourth applicant are dependent on those of the first applicant.

2. The evidence provided by the applicant in support of her application this morning for an extension of time was an affidavit affirmed by her on 30 March 2011 and filed on that date.  The affidavit is as follows:

   “1. I am the First Applicant in this matter.

   2. I am seeking leave from the court to extend time for filing my Application to the Federal Magistrates Court despite the fact that the requisite time period for filing the said Application has expired.

   3. The decision of the Refugee Review Tribunal was made on 20 September 2010 and I was advised by friends to make a Ministerial intervention under Section 417 of the Migration Act, 1958 which I did.

   4. The minister made a decision not to exercise his discretion and the said decision was dated 9 February 2011 which I received a few days later. A copy of the decision is annexed hereto marked ‘A’.

   5. I was under the mistaken belief that the time to make an Application to the Federal Magistrate Court from the date of refusal by the Minister.

   6. Due to my ignorance, I have failed to make the Application to the Federal Magistrates Court within the stipulated time.

   7. I believe that I have an arguable case in respect of my children and would humbly request the court to grant me the necessary extension of time.”

3. The first respondent opposes the applicant’s application this morning, and read the affidavit of the applicant filed on 8 March 2011, which attached the decision of the Refugee Review Tribunal, dated 20 September 2010.

4. By way of background, all the applicants arrived in Australia on 12 December 2002, and applied for protection visas on 26 November 2008.  On 30 January 2009 a delegate of the first respondent refused the applicants’ protection visas, and on 11 June 2010 the applicants lodged an application for review of the delegate’s decision with the Refugee Review Tribunal.  On 20 September 2010, as stated above, the Tribunal affirmed the decision of the delegate to refuse the applicants’ protection visas. 

5. At the heart of the Tribunal’s reasons was its lack of satisfaction of the claims made by the applicants of past harm or any risk of Convention based harm in the future.

6. The Tribunal’s decision record makes clear that the Tribunal identified the applicants’ claims and explored those claims with her at a hearing.  The Tribunal’s decision record makes clear that the Tribunal put to the applicant various matters that caused the Tribunal concern about her evidence and noted her responses.  In particular, the Tribunal put to the applicant that her six year delay in applying for a protection visa after arriving in Australia could suggest that she did not fear any harm if she were to return to Korea.  The Tribunal noted the applicant’s responses. 

7. The application for judicial review of that decision was filed by the applicant on 9 May 2011, and identified the following grounds:

   “The tribunal failed to make a finding on a material claim and t hereby failed to exercise its jurisdiction in a particular:

   - I claimed that my children fear persecution for convention reason because of my involvement with the cult and as they are followers of my belief and faith. The Tribunal misunderstood the claim which I made.

   -The Tribunal failed to make a finding about my fear of taking my children back to Korea because of my involvement with the cult.”

8. Further, in the application for judicial review filed on 9 March 2011, the applicant stated that, under the heading, Grounds of Application for Extension of Time, that she had applied for a Ministerial intervention of the decision of the Tribunal, and was only informed about the outcome of that Ministerial intervention on 9 February 2011, and hence the delay in appealing to the Federal Magistrates Court.

9. The applicant appeared before a Registrar of this Court at a directions hearing on 23 March 2011.  On that occasion, directions were made setting down the applicant’s application for an extension of time for judicial review of the Tribunal’s decision for hearing this morning and the applicant was directed to file and serve evidence in support. 

10. At the heart of the applicant’s explanation, is her decision to pursue Ministerial intervention rather than to inform herself further and pursue any appeal rights she may have in respect of the Tribunal’s decision. The application for judicial review was required to have been filed within 35 days of the date of the Tribunal’s decision, pursuant to section 477(2) of the Migration Act. However, the Court has a discretion to extend time if it is in the interests of justice to do so.

11. In the circumstances, the applicant was required to file her application for judicial review with this court on or about 25 October 2010.  However, the applicant’s application was not filed until 9 March 2011, some four and a half months later. 

12. Even if I was to accept the applicant’s explanation that she chose to pursue Ministerial intervention as reasonable, there is no explanation as to why, upon receipt of the Minister’s letter dated 9 February 2011, the applicant further delayed another month in filing her application until 9 March 2011.  The applicant’s explanation offered in oral submissions this morning was that she spent the two weeks following receipt of the Minister’s decision on 2 February trying to make contact with a certain person about the future conduct of her applications.  As she deposed to in her affidavit, her understanding was that she had 28 days to file her application for judicial review of the Tribunal’s decision from the date of the Minister’s decision in relation to her application for Ministerial intervention.

13. There is no evidence before the Court of any attempt made by the applicant to seek legal advice, or to otherwise assist herself in identifying any rights she may have arising from the Tribunal’s decision. 

14. In the circumstances, I am not satisfied that her explanation for her delay is reasonable. 

15. However, even if I was satisfied that the explanation was reasonable, the applicant has not identified any error capable of review by this court in respect of the Tribunal’s decision.  The grounds in her application are entirely unparticularised.  They were interpreted for the applicant this morning by the interpreter assisting her and she was invited to say whatever she wished in support of those grounds.

16. I explained to the applicant that this Court had no jurisdiction to interfere with the decision of the Tribunal unless it was satisfied that the Tribunal’s decision was affected by a mistake that went to its jurisdiction, and that the Court had no residual discretion to grant her relief unless is was so satisfied.  I further explained that disagreement with the findings and conclusions of the Tribunal rarely by itself established such a mistake. 

17. The applicant said that her children had been to English speaking schools in Korea, and had come to Australia at the ages of four and six, and were unable to speak Korean.  She also said that there was a miscommunication at the Tribunal hearing, in that she was asked to submit more documents, which she did.  She said she heard nothing further following submission by her of those further documents.

18. The Tribunal’s decision record makes clear that it received documents from the applicant and had regard to those documents in considering whether or not the applicant had a well-founded fear of persecution for a Convention related reason. 

19. The applicant also said, by way of oral submissions this morning, that the Tribunal had only referred to internet country information, with which she did not agree.  However, it is well established that the country information to which the Tribunal has regard, and the weight it gives that information, is a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per the Court.

20. The applicant has not identified, with any greater particularity, the country information with which she disagrees, nor does she suggest that there was other information that she sought to provide to the Tribunal.  Rather, her complaint is that she did not agree with the independent country information considered by the Tribunal.

21. Her assertion that the Tribunal used “totally different information” to her information was, again, unsupported by particulars, evidence, or any further relevant submissions. 

22. Whilst I make no final finding in respect of whether the Tribunal’s decision is affected by jurisdictional error, the complaints made by the applicant to the Court, both in her written application and her oral submissions this morning, are in the nature of a disagreement with the findings and conclusions of the Tribunal.  Such complaints invite merits review, which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

23. No other jurisdictional error was identified by the applicant and none is apparent on the face of the Tribunal’s decision record.

24. In considering the overall interests of justice, I have regard to the interests of the community in having these administrative decisions finalised.  

25. In circumstances where the application before the Court has no, or no, reasonable prospects of success, coupled with the unsatisfactory explanation by the applicant of her delay in filing her application, the applicant’s application for an extension of time is refused.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date:  14 April 2011