SZQBY v Minister for Immigration
[2011] FMCA 354
•6 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQBY v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 354 |
| MIGRATION – Refugee Review Tribunal – whether time should be extended to applicant pursuant to section 477(2) of the Migration Act 1958 (Cth) to seek judicial review of a decision of the Refugee Review Tribunal made 19 months prior to filing the application in this Court – whether the applicant’s explanation for delay was reasonable in all the circumstances – whether the application for judicial review has any or any reasonable prospects of success. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.477(2); 424AA |
| 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 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZQBY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 570 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 6 May 2011 |
| Date of Last Submission: | 6 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 6 May 2011 |
REPRESENTATION
| Applicant: | In person with Bengali interpreter |
| Counsel for the Respondents: | Mr J. Potts |
| Solicitors for the Respondents: | Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 570 of 2011
| SZQBY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”), to allow the applicant to proceed with the application filed by him on 29 March 2011 seeking judicial review of a decision of the Refugee Review Tribunal dated
7 May 2009 (“the Tribunal”).
Section 477(1) of the Act requires that any application for judicial review by this Court of a decision of a Refugee Review Tribunal be filed within 35 days of the date of the decision. Section 477(2) of the Act provides that the Court may extend time to an applicant beyond
35 days where it would be in the interests of justice to do so.
Directions were made by me on 15 April 2011 giving the applicant leave to file and serve an amended application by 21 April 2011 and any evidence in support of the issue of whether time should be extended by 27 April 2011 together with submissions in support of that application for an extension of time. On that occasion the applicant was represented, however, the applicant is unrepresented today in respect of that application.
I note that an amended application was filed on 21 April 2011 in accordance with the Court’s directions together with two affidavits in support. The first affidavit was sworn by the applicant on 28 April 2011 and filed on 29 April 2011. The second affidavit was sworn by
George Sanjoy Palmer on 28 April 2011 and filed on 29 April 2011.The substance of the applicant’s affidavit is as follows:
“1. I am the Applicant in this procedings (sic).
I received a letter on 8 May 2009 from the Refugee Review Tribunat (sic) (The Tribunal) and the letter said that I should obtain legal advise (sic) if I wish to seek judicial review. I made an appointment to see Md. Sirajul Haque, a migration agent and a barrister (Tas)
2. Mr Haque said I would need an experienced barrister in immigration law and possible (sic) a solicitor as well. He told me that a firm of Parish Patience charge 6 to 7 thousand dollar for such application.
3 He also told me that a barrister acting without solicitor might be able to do the case for amount $4000.00.
4. Even though I was working at that time. My income was hardly enough to buy food and put rent. I could not afford $4000.00.
5. I went to my cousin named George Sanjoy Palma and asked if I could borrow the money, he said to me that he did not have any money to give me.
6. I did not know what to do, my parents in Bangladesh were sick. Besides, I had a lot of concern including safety of my sister. I did not do any things about bringing court case because I did think I could.
7. Eventually in April 2011, I was searched by official from DIAC to arrest me, because my situation. I lodged an application to the Federal Magistrates Court.
8. Before my case went to Federal Magistrates Court I asked Mr. Haque to arrange a barrister, the barrister saw me and told me that my grounds of application were not any good and I would have to amend the application, I then appeared before the FMC on 14 April 2011 along with Mr. Haque.
9. I asked the Court to allow me to continue my case.”
The substance of the affidavit of George Sanjoy Palmer is as follows:
“1. I am an Australian Citizen.
2. I am the cousin of [the Applicant];
3. When 2009 [the Applicant’s] was refused by the Refugee Review Tribunal (RRT), he approached me to fund him to run his case with the Federal Magistrates Court.
4. At that time I could not afford to help him, recently he has asked me again to help him even though I am not only a taxi driver do not earn much money I wish I could help him if I can and prepare to pay $4000.00 for legal costs.”
The grounds of the amended application are as follows:
1. The Tribunal erred in deciding the application on the basis of the information which was used in making the decision.
2. The Tribunal failed to consider the applicant’s situation, where the applicant had a real fear of persecution.
3. The Tribunal was influenced by the opinion of the two individual persons and it is not supported by the independent information at all.
4. The Second Respondent made jurisdictional error by failing to comply with requirement of section 424AA. The Tribunal did not give clear particular of information. Particularly the Tribunal did not (a) orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; (b) The Tribunal did not ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming” .
I note that the grounds of the amended application are a re-statement in respect of Grounds 1 to 3 of the initiating application filed on 29 March 2011. Otherwise, Ground 4 of the initiating application appears to make an unparticularised complaint of a denial of procedural fairness by the Tribunal.
At the outset of the hearing this morning, I explained to the applicant that he would have an opportunity to say whatever he wished in support of his application for an extension of time. I informed him that two significant issues for the Court would be the reasonableness of his explanation for his delay in filing his initiating application on 29 March 2011 seeking judicial review of the Tribunal’s decision dated 7 May 2009 and his prospects of success.
RECORDED: NOT TRANSCRIBED
The applicant’s affidavits were read without objection.
Counsel for the first respondent, Mr Potts, indicated that he did not wish to ask Mr Palmer any questions, however, he did wish to cross-examine the applicant.
In the course of cross-examination, the applicant agreed that he was aware as at May 2009, when he received the Tribunal’s decision, that his application for review had been refused and that if he wished to continue to stay in Australia he would require a further visa. He agreed that he understood that the purpose of seeking review of the delegate’s decision by the Tribunal was in order to obtain the protection visa for which he applied on 22 August 2008.
A useful chronology was prepared by counsel for the first respondent in his written submissions and is as follows:
“The following chronology should be uncontroversial:
10.07.08
The applicant, a national of Bangladesh, arrived in Australia.
22.8.08
Applicant lodged application for protection (class XA) visa (“PVA”).
14.11.08
Applicant attended interview with delegate.
20.11.08
Application refused.
13.12.08
Application for review lodged with Tribunal.
18.2.09
Applicant gave evidence at Tribunal.
3.4.09
Applicant gave evidence at further Tribunal hearing.
7.5.09
Tribunal affirmed delegate’s decision.
11.06.09
35 day time limit under s 497(1) expires.
29.03.11
Applicant commenced proceedings in FMC and seeks EOT.”
The applicant in cross-examination agreed that he understood that the Tribunal had refused him a visa and that as a result of that decision he was unable to stay in Australia long term. He also agreed that he understood that if he wished to stay in Australia he would need to do something about that matter and that he understood that he could go to the Federal Magistrates Court if he wished to do anything about it.
The applicant agreed that he did not make any attempt to seek judicial review of the Tribunal’s decision until after he had been detained by immigration officials sometime shortly prior to the filing of his initiating application on 29 March 2011.
The applicant also agreed that whilst he had the advice of his migration agent, following receipt by him of the Tribunal’s decision, he understood that he could make an application for judicial review himself. However, he said that the advice to him from his migration agent was that he would benefit from the assistance of a lawyer in any such application.
I accept the applicant’s evidence that he was unable to afford to pay for a lawyer at that time. However, the applicant’s oral evidence was that he understood in May 2009 that he could proceed to represent himself should he choose to do so.
In his affidavit, the applicant stated that the notification letter from the Tribunal said that he should obtain legal advice should he wish to seek judicial review. In cross-examination, the applicant was taken to the text of that letter dated 8 May 2009 from the Tribunal together with the enclosure being the two-page information sheet about Tribunal decisions. Whilst the applicant maintained that those documents informed him that he should obtain legal advice if he wished to seek judicial review, plainly the terms of the letter makes no such statement.
In any event, the relevant evidence from the applicant is that the applicant was aware in May 2009 that the option was open to him to pursue his rights of judicial review of the Tribunal’s decision in this Court. He chose not to do so at that time. Plainly, the applicant changed his mind after he was detained.
In the circumstances, the applicant’s delay of some 19 months, well in excess of the 35 day period provided for in s.477(1) of the Act is in all the circumstances unsatisfactorily explained.
In turning to the grounds upon which the applicant relies in seeking judicial review of the Tribunal’s decision as reflected in his amended application, each of those grounds was interpreted for the benefit of the applicant this morning and the applicant was invited to say whatever he wished in support of those grounds.
In support of Ground 1 the applicant said no more than that the Tribunal had misunderstood the way he presented his case. He had nothing to say in support of Grounds 2, 3 or 4.
The grounds are entirely unparticularised. All the grounds would require particulars in order to identify the error which is alleged.
Grounds 1 and 2 make bare assertions that do not disclose any error capable of review by this Court.
Ground 3 appears to be a disagreement with the Tribunal’s assessment of conflicting evidence before it. Such a disagreement seeks 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).
Ground 4 makes the bare assertion that the Tribunal had failed to comply with the requirements of s.424AA of the Act.
For completion, the only other ground raised by the applicant in the initiating application was the unparticularised assertion that the Tribunal denied the applicant procedural fairness.
In opposing the applicant’s extension for time this morning, the first respondent read the affidavit of Elizabeth Warner-Knight affirmed 2 May 2011 and filed on 2 May 2011. Ms Warner-Knight’s affidavit annexed, inter alia, the application for review lodged with the Tribunal on 13 December 2008, the subsequent notification to the applicant on 8 May 2009 of the Tribunal’s decision and a copy of the Tribunal’s decision.
It is clear from the Tribunal’s decision that the applicant attended the Tribunal on both 18 February 2009 and 9 April 2009 at which time he gave evidence and concerns arising from that evidence were explored by the Tribunal with him and his responses noted. In particular, the Tribunal referred to information that it purported to give to the applicant pursuant to s.424AA of the Act. On the face of the Tribunal’s decision record, there was no apparent error in the way in which the Tribunal gave that information and on the face of the Tribunal’s decision record it would appear to have been given in accordance with s.424AA of the Act.
Otherwise, at the heart of the Tribunal’s rejection of the applicant’s claims was its adverse credibility findings. The Tribunal gives in some detail those aspects of the applicant’s evidence that it found to be unsatisfactory. Again, it would appear on the face of the Tribunal’s decision record that those adverse findings were open to the Tribunal on the evidence and material before it and for the reasons it gave. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
The Tribunal’s reasons are detailed and comprehensive. They seek to explore all claims made by the applicant. The Tribunal noted that it considered the applicant’s claims both individually and cumulatively in rejecting the applicant’s claim to have a well-founded fear of persecution for a Convention related reason.
In the circumstances, the grounds raised by the applicant do not have any, or any reasonable prospects of success and no jurisdictional error is readily discernible on the face of the Tribunal’s decision record.
I have had regard to the applicant’s oral submissions, made after he had given sworn evidence and been cross-examined, that he was not financially solvent at the time that he received the Tribunal’s decision, that he did not have a proper job, his earnings were very low, that his parents in Bangladesh were sick, that his father had open-heart surgery and that by the time he may have been in a position to pay money for a lawyer to assist him with this appeal, the time for his appeal was over.
The applicant said that because he had lost his work permit he was unable to get a job and he lost the job that he did have as a housekeeper with a hotel. The applicant also referred to a problem that his sister had in Bangladesh with some Muslims and that because of her problems he was mentally disturbed and unable to apply his mind to his particular difficulties in Australia.
Those matters that were raised by him in his oral submissions were no part of the sworn evidence that he gave to the Court this morning. There is no evidence to support any medical condition that the applicant may have had that made him unfit for nineteen and a half months to properly assist himself in pursuing any rights he may have arising from the Tribunal’s decision.
Those further facts to which the applicant referred in his oral submissions followed confirmation by him when giving his sworn evidence that there was nothing further he wished to say in addition to his affidavit both before he was cross-examined and after his cross-examination.
In the circumstances, I am not satisfied that those further matters referred to by the applicant in his oral submissions should be given sufficient weight to elevate the applicant’s explanation for his delay to be reasonable or satisfactory.
In accordance with s.477 of the Act the Court does have power to extend time if it is in the interests of the administration of justice to do so. In considering the interests of the administration of justice one cannot ignore the interests of the community in having these administrative decisions finalised.
In all the circumstances I am not satisfied that it is in the interests of justice that time be extended to the applicant to continue his proceeding through the Court and, accordingly, his application for an extension of time should be refused with costs.
RECORDED : NOT TRANSCRIBED
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate:
Date: 16 May 2011
0
5
2