SZQKE v Minister For Immigration and Anor; (No.2)

[2011] FMCA 847

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQKE v MINISTER FOR IMMIGRATION & ANOR
(No.2) [2011] FMCA 847

MIGRATION – Extension of time for the filing of a judicial review application – review of a decision of an Independent Merits Reviewer in respect of an offshore entry person.

Migration Act 1958 (Cth), s.477

Applicant: SZQKE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: KERRY-ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: SYG 1398 of 2011

Judgment of: Driver FM

Hearing date: 2 November 2011

Delivered at: Sydney

Delivered on: 2 November 2011

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Schofield King Lawyers

Counsel for the Respondents: Mr D Godwin

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Court directs that the name of the applicant not appear on the transcript of proceedings.

2. Pursuant to s.477(2) of the Migration Act 1958 (Cth), the time for the filing of the application be extended up to and including 1 July 2011.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1398 of 2011

SZQKE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

KERRY-ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 1 July 2011 seeking review of a decision of an Independent Merits Reviewer (“the Reviewer”) in respect of an offshore entry person. The decision of the Reviewer was made on 29 April 2011 and communicated to the applicant by letter dated 4 May 2011. It is common ground that s.477 of the Migration Act 1958 (Cth) (“the Migration Act”) applies to the application before the Court and that, pursuant to s.477(1), the application should have been filed no later than 8 June 2011. The application was filed 24 days late.

2. The issue of an extension of time was raised in the original application and repeated in an amended application filed on 24 October 2011.  The grounds on which an extension of time is sought in the amended application are:

   The Applicant does seek an order that time be extended on the basis that it is in the interest of the administration of justice that an extension be granted because, inter alia,;

   2.The applicant did not know how to apply to the Court himself.

   3.He sought out the assistance of a volunteer worker in good time. That person lodged an application for Legal Aid on his behalf.

   4.Even after he contacted Legal Aid NSW it took some time for them to obtain advice sufficient for a grant of legal aid to be considered. It took more time for the application to be approved and instructions to be given.

   5.The application is one of substance.

3. I heard oral argument from the parties in relation to the issue of the extension of time.  The Minister does not oppose an extension of time on the basis of the length of the applicant’s delay or on the basis of the inadequacy of the explanation for that delay.  The length of the delay is a relatively modest one.  The explanation for the delay is adequately addressed in the affidavits of the applicant made on 25 October 2011, and the affidavit of Frances Lillian Milne, a volunteer worker, made on 28 October 2011.

4. The question of whether the Court should in the exercise of discretion grant an extension of time pursuant to s.477(2) of the Migration Act centres upon the consideration of the interests of the administration of justice. In short, the Minister submits that an extension of time should be refused because the legal issue raised in the amended application is doomed to fail. The applicant contends that there is a serious question to be tried.

5. The question raised in the amended application is whether the Reviewer fell into jurisdictional error in considering whether the applicant would suffer harm amounting to persecution for a Convention reason in travelling to his home province in Afghanistan.  There was information before the Reviewer that areas surrounding the applicant’s home province were dangerous and the travel through those areas was, and remains, dangerous.  While acknowledging a general risk, the Reviewer considered that the applicant did not face a serious risk of persecution on the basis of his ethnicity or religion or because of his personal circumstances in travelling to his home province. 

6. The applicant contends that the Reviewer asked herself the wrong question, or failed to ask the correct question, in dealing with the issue centring upon his ethnicity and religion and the risk faced by persons of his ethnicity and religion.

7. This is not a case in which the Reviewer failed to give any consideration to the risk of harm that the applicant might suffer in travelling to the place in Afghanistan which the Reviewer found would be a safe place for him to live.  There is no doubt that the Reviewer gave consideration to the issue that required her consideration.  It is inappropriate for me, at this stage of the proceedings, to express a view on the strength of the legal argument that the Reviewer fell into jurisdictional error in dealing with that question.  It is sufficient for me to find that the issue raised by the applicant is, in my view, one that is reasonably arguable.

8. Further, the issue is one which is bound to arise in numerous proceedings involving asylum seekers from Afghanistan, given the conditions of insecurity in that country.  It is appropriate, in the interests of the administration of justice, that the Court should provide guidance to decision-makers on the legal requirements bearing upon a consideration of issues concerning the security of travel within the country. 

9. I will order that, pursuant to s.477(2) of the Migration Act, the time for the filing of the application be extended up to and including 1 July 2011.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  11 November 2011