SZQLI v Minister for Immigration
[2011] FMCA 856
•30 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQLI v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 856 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – application dismissed as not competent. |
| Migration Act 1958 (Cth), ss.36, 65, 424A, 425, 425A, 426A, 441A, 441C, 476, 477 Migration Regulations 1994 (Cth), reg. 4.35D |
| NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 |
| Applicant: | SZQLI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1527 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 30 September 2011 |
| Date of Last Submission: | 30 September 2011 |
| Delivered at: | Sydney |
| Delivered on: | 30 September 2011 |
REPRESENTATION
| The Applicant: | In Person |
| Appearing for the Respondents: | Ms M Stone |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application made on 19 July 2011 is dismissed as not competent.
The applicant pay the first respondent’s costs set in the amount of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1527 of 2011
| SZQLI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
I have before me today an application made to this Court on 19 July 2011 pursuant to s.476 of the Migration Act1958 (Cth) (“the Act”) which seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 10 June 2011, but which the applicant has said was made on 14 June 2011. This Tribunal decision affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The short history of this matter, derived from the Court Book (“CB”) filed by the Minister in these proceedings, is that the applicant is a national of Indonesia who arrived in Australia on 3 December 2009 on a work and holiday visa. He lodged an application for a protection visa on 29 November 2010. He broadly claimed to fear harm from local Indonesians, and in particular his former employer, on the basis of his being an Indonesian of ethnic Chinese descent (CB 17 to CB 20).
The Delegate
The applicant was invited by a delegate of the Minister to attend an interview to explain and expand on his claims. Without any explanation he did not attend at that interview. The delegate refused the application on the basis that the requisite level of satisfaction could not be reached in circumstances where the information provided was lacking in detail and substance (CB 34 to CB 36).
The Tribunal
The applicant then sought review by the Tribunal (CB 38 to CB 41). Amongst other things, the Tribunal invited the applicant to a hearing, putting him on notice that a favourable decision could not be made on the material that had been provided to it (CB 44). When regard is had to the evidence before the Court, both in the form of the relevant parts of the Court Book and what is annexed to the affidavit of Michelle Elizabeth Stone of 22 August 2011 which was taken into evidence before the Court today, the Tribunal’s invitation complied with all the relevant statutory and regulatory requirements (s.425, s.425A including the reference to s.426A, s.441A, s.441C of the Act and reg.4.35D of the Migration Regulations 1994 (Cth)).
The applicant did not attend the Tribunal hearing and gave no explanation for that failure to attend. Not surprisingly, the inevitable consequence of that failure to attend (referring to NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287) was that the Tribunal similarly could not reach the requisite level of satisfaction that the applicant met the definition of refugee as set out in Article 1A(2) of the Refugees Convention, and therefore affirmed the delegate’s decision.
Before the Court
All of that is by way of background because the issue for the Court today is squarely the matter of the lack of competence in the application made to the Court. As the applicant was put on notice at the first Court date, his application to the Court was some days outside of the 35 day time limit set out in s.477(1) of the Act as being the time within which applications of this type must be made to this Court. It is the case in applications made in these circumstances that the Court does have power to extend the time for the making of such applications pursuant to s.477(2) of the Act.
I am satisfied that the applicant in those circumstances would have known of the need to have taken some action to have made the requisite application to this Court in writing pursuant to s.477(2)(a).
I note also for this, and indeed for broader purposes that the applicant was referred to, and assigned, a lawyer on the panel of the Court’s RRT Legal Advice Scheme. I further note, from the Court’s records of the Certificate returned by that panel member, that written advice was provided to the applicant on 29 August 2011 following a telephone conference with the lawyer.
In spite of all of this no application, whether in writing or otherwise, has been made to this Court for any extension of time. While I note that the period of delay is only a matter of days, and also that it may be that the applicant was under some mistaken misapprehension that the date for the beginning of the 35 day period was 14 June 2011 rather than 10 June 2011 (being the date of the letter of notification of the Tribunal’s decision sent to him), that the time limit set out in s.477(1) is 35 days of the date of the migration decision, not of the date of notification.
I cannot see that the Court has any discretion to overlook that four day period, even in circumstances where the applicant may have been under some misapprehension, other than the discretion that is set out in s.477(2).
But for whatever reason, although it must be said consistent with the applicant’s lack of any real action to prosecute his claim to be a refugee in Australia other than making applications at the various layers involved in that process, the lack of understanding, or rather any misunderstanding, by the applicant cannot assist him in circumstances where no application for an extension of time has been made. That is, an application in writing as required by s.477(2)(a).
I am satisfied that the applicant had notice of the need to address this matter. Further, he had the opportunity to obtain information and advice as to how he could address it. But for whatever reason he has not taken up that opportunity, a course of inaction consistent with his earlier inaction in failing to attend interview and hearing with the delegate and the Tribunal respectively.
What the Court is left with today is an application made out of time.
It is not competent. No application as provided for in the Act has been put before the Court to extend that time. In these circumstances the Court has no opportunity to consider any such extension, let alone enter into any such consideration. Therefore the only course open to the Court is to now dismiss the application as not being competent.
Having said that, however, it is abundantly clear on the material before the Court that, even if the applicant had made such an application, in the absence of anything else put forward by the applicant, the Court would not have exercised its discretion and extended time because I cannot see, in the circumstances presented, that it would have been in the interests of the administration of justice to have extended time pursuant to s.477(2)(b).
The applicant came to Court today and offered as his reason for not attending the interview before the delegate and the hearing before the Tribunal that he had in mind that he would reserve his attendance for coming to this Court. Even taking that at face value, that is even if only some mistaken miscalculation, it nonetheless would not assist the applicant even if it was based on some genuine misunderstanding.
The question before the Court pursuant to s.477(2)(a) would have been to have canvassed those elements that are relevant to what is in the interests of the administration of justice. In that regard I would not have seen a period of four days as being in any way a significant delay. It may be that if the applicant were to have put to the Court that it was based on some misunderstanding as to when the time period would start, that may have been a satisfactory explanation, although it must be said that when the applicant was given the opportunity to put anything to the Court today he said he had nothing to say.
Clearly, no prejudice would have fallen to the Minister in such circumstances if the time had been extended. There would most certainly have been an impact on the applicant in terms of his being required to leave Australia.
But what would have been the significant element that counted against the applicant’s cause in any consideration of what is in the interests of the administration of justice is the lack of any merit in the grounds of the application as put before the Court. Despite opportunity provided to the applicant, no amendment was made to the grounds of that substantive application. But it must be said, even beyond those grounds, I cannot see that there would be any utility in extending time in the circumstances of this case.
As I said earlier, the applicant was invited to an interview with the delegate and, without explanation, he failed to attend. The delegate was unable to reach the requisite level of satisfaction based on the bare claims made by the applicant.
The evidence then shows that the Tribunal wrote to the applicant inviting him to a hearing pursuant to s.425 of the Act. That invitation, as I said, complied with all the relevant statutory and regulatory requirements. In particular I note the letter was sent pursuant to s.425 of the Act, and made all the necessary references as required by the Act, provided for the prescribed period, and was sent to the applicant pursuant to one of the methods set out in ss.441A and 441C of the Act.
The applicant failed to attend the hearing, and the Tribunal proceeded pursuant to s.426A of the Act to make its decision, having put the applicant on notice that a failure to attend the hearing may indeed produce such an outcome. As I said earlier, in a very real sense that was the inevitable consequence of the applicant’s failure to attend after having been put on notice of the importance of his attending the Tribunal hearing.
The grounds of the application as stated are bare and with no particulars. Ground one says the decision made by the Tribunal is affected by jurisdictional error. No explanation whatsoever is given for that but, as I said, in the circumstances no error is apparent.
The second ground is that the Tribunal failed to give the applicant the prescribed period of notice. It is not clear whether the applicant means period of notice for the hearing. But if that is what is meant, on the evidence before the Court, such an assertion must be squarely rejected.
The third ground is that the Tribunal acted in breach of s.424A of the Act. That simply misunderstands and misrepresents the circumstances in which the Tribunal made its decision. Section 424A of the Act was not engaged.
The reason for the Tribunal’s decision was that, in the circumstances, it was unable to reach the requisite level of satisfaction that the applicant met the definition of refugee as set out in Article 1A(2) of the Refugees Convention (with reference to ss.65 and 36(2) of the Act).
But to the extent that it may be said that in coming to that conclusion the Tribunal had regard to information contained in the applicant’s application for a protection visa or in his application for review, bare as it is, then it is the case that information provided in writing to the Minister’s department, and information provided to the Tribunal in relation to the review, is exempt from the obligation in s.424A(1) by virtue of s.424A(3)(ba) and (b) of the Act.
I take the view that the real reason for the Tribunal’s decision was simply its inability to reach the requisite level of satisfaction, in which case there is no engagement of s.424A. In any event these, it must be said, formulaic grounds, often seen in this Court in relation to these matters, are of no assistance whatsoever to the applicant and, in circumstances where no other arguable complaint or arguable point arises from the material, it would not have been in the interests of the administration of justice to have extended time.
But in any event, as I said, no application has been made for any extension and, as Ms Stone, the Minister’s representative, in my view quite correctly submitted, that circumstance leads inevitably to the dismissal of the substantive application as being not competent. I will now make an order to that effect.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 4 November 2011
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