SZQQW v Minister for Immigration
[2011] FMCA 954
•18 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQQW v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 954 |
| MIGRATION – Application to review decision of the Refugee Review Tribunal – application for extension of time under s.477 of the Migration Act. |
| Migration Act 1958 (Cth), ss.426A, 477 Federal Magistrates Court Rules2001 (Cth), r.13.03C |
| NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 SZQBA v Minister for Immigration and Citizenship [2011] FMCA 725 |
| Applicant: | SZQQW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2116 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 18 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 18 November 2011 |
REPRESENTATION
| Applicant: | No Appearance |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application of 20 September 2011 be dismissed as incompetent.
The applicant pay the costs of the first respondent fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2116 of 2011
| SZQQW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
On 20 September 2011, the applicant filed an application for judicial review of a decision of the Refugee Review Tribunal dated 24 March 2009 affirming a decision of a delegate of the first respondent not to grant the applicant a Protection Visa. The applicant indicated in her application for review that she sought an extension of time within which to make the application. Under s.477 of the Migration Act 1958 (Cth) (the Act) an application to this court must be made within 35 days of the date of the migration decision of the Tribunal. The court may, by order, extend that 35 day period as it considers appropriate if an application for that order has been made in writing to the court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order and the court is satisfied it is necessary in the interests of the administration of justice to make the order.
When this matter came before the court for directions on 19 October 2011, the applicant was not in attendance. However she was telephoned and participated in the directions hearing by way of telephone. Having regard to the nature of the matters raised in these proceedings, the decision of the Tribunal, the need for an extension of time, and the absence of any evidence in support of such an extension of time, I determined that it would be appropriate to deal with the application for an extension of time as a preliminary issue. I ordered that the applicant file and serve any evidence in relation to such application for an extension of time by 2 November 2011 and listed the hearing of the application for an extension of time for today.
Tendered in evidence is a copy of a letter from the solicitors for the first respondent to the applicant dated 20 October 2011 (the day after the directions hearing) enclosing a copy of the orders and relevantly noting the date, time and place for the hearing. The letter also advised the applicant that if she did not attend, either in person or by legal representative, the respondents’ solicitors were instructed to seek to have the matter dismissed with costs. I am satisfied that the applicant is on notice of the hearing today. She has not filed any evidence in relation to the application for an extension of time.
The applicant was not present today at the time the matter was listed for hearing. Nor is she present now – some 20 minutes later. I am told from the bar table that the solicitor for the respondent (with the assistance of the interpreter) endeavoured to contact the applicant on the telephone number provided in the application for review without success.
It may be that the applicant has not met the requirement in s.477(2) of the Act that she specify why she considers that it is necessary in the interests of the administration of justice, to extend the time, albeit in her application she stated: “I did not know I had a right to appeal to the Federal Magistrates Court.”
I have proceeded, however, on the basis that this amounted to a specification of why the applicant considered it necessary in the administration of justice to grant an extension of time.
The court has power under r.13.03C of the Federal Magistrates Court Rules either to dismiss the application for non-appearance or to proceed with the hearing. In the particular circumstances of this case I am of the view that it is appropriate to proceed with the hearing of the application for an extension of time in the absence of the applicant and that the application should be dismissed as incompetent.
I have had regard to the applicant’s failure to appear and her failure to file any evidence. She has not taken the opportunity that she was given to provide any evidence explaining the fact of delay and the considerable extent of the delay since the Tribunal decision or the circumstances in which she came to make the application to this court. Nor has she put any evidence before the court in relation to the merits of her application or other factors that might be taken into account (see SZQBA v Minister for Immigration and Citizenship [2011] FMCA 725, and cases referred to therein.
There is only one sentence of explanation from the applicant as to the reasons for the delay. It is not elaborated on in any way. Moreover the nature of this explanation needs to be seen in light of the extent of the delay. The Tribunal decision was made on 24 March 2009. The application to this court was not filed until 20 September 2011. That is a considerable delay. I do not consider that it is satisfactorily explained by the simple remark that the applicant did not know that she had a right to appeal in the Federal Magistrates Court.
It is also relevant to have regard to other factors, the most important of which, in the present context, is the merits of the application for review. I have borne in mind that the applicant is self-represented and I have regard to all the information before me, which includes not only the decision of the Refugee Review Tribunal, but also a copy of the invitation to the Tribunal hearing and the postal log in relation to sending the Tribunal hearing invitation to the applicant by registered post.
The grounds in the application for review are that there was no evidence or other material to justify the making of the decision; that the decision made by the Tribunal was contrary to law; and that the decision did not take into account that the applicant would be placed in danger if returned to China.
These are general and un-particularised grounds. They do not in any way suggest, for example, that there was any issue in relation to the applicant’s failure to attend the Tribunal hearing such as to give rise to any arguable jurisdictional error. In that context it is relevant to have regard to the evidence about the Tribunal’s compliance with the procedures in the Migration Act 1958 (Cth). According to the Tribunal reasons for decision the applicant applied for a visa in October 2008. The application was refused. She sought review. She made relatively brief claims in connection with her protection visa application of a fear of persecution based on her involvement in Falun Gong.
On 2 February 2009 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her application, but that it was unable to make a favourable decision on that information alone. It is apparent from that letter that the Tribunal complied with the obligations under the Migration Act in relation to the content of a notice of invitation to a hearing. The applicant was invited to give oral evidence and present arguments at a hearing on 24 March 2009. Sufficient notice was given. She was advised that if she did not attend and a postponement was not granted, the Tribunal may make a decision on her case without further notice.
The Tribunal recorded that no response was received. The invitation was sent to the most recently advised address. The applicant did not appear at the Tribunal hearing. In those circumstances the Tribunal determined pursuant to s.426A of the Act to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal found that while it accepted the applicant was a Chinese national who claimed she feared harm as a Falun Gong practitioner, she had provided no documentary evidence in support of her claims or further information to the Tribunal in connection with the review.
It found that her claims were lacking in essential detail and that there were few details in relation to her claimed Falun Gong practice.
It recorded that the applicant was invited to appear before the Tribunal, but that she did not do so. The Tribunal continued:
As a consequence, the Tribunal has been unable to question her further, as to the veracity of her claims, leaving her claims unclarified, and the Tribunal’s questions unanswered. On the evidence before it, the Tribunal is not satisfied that the applicant has suffered persecution in the past, nor that she has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion, or because of her membership of a particular social group, if she returns to China in the foreseeable future.
The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations. It affirmed the decision of the delegate.
There is nothing in the material before the court to indicate any concern that any of the procedures provided for in the Migration Act or Regulations in relation to an invitation to a hearing were not complied with by the Tribunal. Indeed there is no contention to that effect in the application for review. It was open to the Tribunal under s.426A of the Act to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. There is nothing to suggest that it failed to do so in an appropriate and reasonable manner.
The applicant’s general contention that there was no evidence or other material to justify the making of the decision flies in the face of her failure to attend the Tribunal hearing and the insufficiency of the evidence before the Tribunal. The Full Court of the Federal Court stated in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5], in assessing the adequacy of relatively brief reasons in a similar context to that which is before the court in this instance, that it was relevant to bear in mind that the Tribunal had indicated to the applicant it was unable to find in the applicant’s favour on the basis of the material before it and invited the applicant to attend a hearing. The Tribunal was not obliged to accept at face value an applicant’s short and vague outline of the basis for fearing persecution.
The court stated at [5]:
…Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.
Such remarks are apposite in the present case.
The general contention that the decision was contrary to law is not particularised or supported by reference to any provisions of the Migration Act or Regulations. There is nothing in the material before the court to raise any concern in that respect.
The ground that the decision maker did not take into account that the applicant would be placed in danger if returned to China in some respects seeks impermissible merits review. Moreover as the Tribunal did not accept the applicant’s claims about her circumstances it was not required to consider whether she would be placed in danger if she returned to China on the basis of such circumstances.
There is a significant lack of merit in the grounds relied on by the applicant in the application for review.
In all the circumstances, having regard to the unsatisfactory explanation for the delay, the length of the delay, and the lack of substantive merit in the grounds relied on by the applicant, it has not been established that it is in the interests of the administration of justice to make an order extending the time for the application to this court under s.477 of the Act. The application should be dismissed as incompetent.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 2 December 2011
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