SZQYY v Minister for Immigration
[2012] FMCA 107
•17 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQYY & ORS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 107 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in the USA – judicial review application filed out of time – extension of time refused. |
| Federal Magistrates Court Rules 2001(Cth) Migration Act 1958 (Cth), ss.351, 477 |
| SZQLD v Minister for Immigration & Anor [2011] FMCA 784 Vu v Minister for Immigration [2008] FCAFC 59 |
| First Applicant: | SZQYY |
| Second Applicant: | SZQYZ |
| Third Applicant: | SZQZA |
| Fourth Applicant: | SZQZB |
| Fifth Applicant: | SZQZC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2900 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 17 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 17 February 2012 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr I Temby Minter Ellison |
INTERLOCUTORY ORDERS:
The Court directs that the name of the first applicant is not to appear on the transcript of proceedings.
The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is refused.
The judicial review application filed on 16 December 2011 is dismissed.
The first applicant is to pay the costs and disbursements of and incidental to the application in the sum of $3,123 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2900 of 2011
| SZQYY |
First Applicant
| SZQYZ |
Second Applicant
| SZQZA |
Third Applicant
| SZQZB |
Fourth Applicant
| SZQZC |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 29 June 2011. The Tribunal affirmed decisions not to grant the applicants’ protection visas. There are five applicants, comprising the first applicant, who is the applicant mother who made the relevant protection claims, her husband and their three children. References in this judgment to the applicant are intended to be references to the first applicant.
The judicial review application was filed on 16 December 2011. In that application, the applicant identified the need for an extension of time and provided grounds in support of the request for the exercise of the court’s discretion pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Migration Act”). When the matter came before me for first court date directions on 8 February 2012, I listed the matter for hearing before me today on the question of an extension of time. I also required the applicant to file and serve an affidavit explaining her reasons for the delay in filing her application in the Court.
The applicant complied with that direction by filing an affidavit with annexures on 16 February 2012. I received that affidavit, together with her affidavit filed with her judicial review application enclosing the Tribunal’s decision. The applicant was cross-examined on her affidavit. Essentially, the applicant says that she delayed coming to Court because she had made representations to the Minister for Immigration (“the Minister”) seeking his intervention in her case for humanitarian reasons.
Annexed to the affidavit is a handwritten letter from the applicant to the Minister, which is undated. The applicant deposes that she did not receive a reply from the Minister until 9 December 2011, which was approximately a week before she filed her application in the Court. Under cross-examination, the applicant acknowledged that she had been notified of the Tribunal’s decision and provided with standard information concerning her rights. That correspondence, dated 30 June 2011, I received as an exhibit.[1]
[1] exhibit R1
The applicant also acknowledged that, by letter dated 8 September 2011, her request for Ministerial intervention was acknowledged and further information was invited. I received that letter as an exhibit.[2] The applicant further acknowledged that, with the assistance of a lawyer acting for the business partnership in which she is involved, she provided further information to the Minister by letter dated 15 September 2011. I received that letter.[3]
[2] exhibit R2
[3] exhibit R3
Finally, the applicant acknowledged that she was notified of the Minister’s decision not to intervene by letter from his Department dated 2 December 2011, which she maintained she received on 9 December 2011.[4]
[4] That letter I received as exhibit R4.
The applicant stated, under cross-examination, that when she was notified of the Tribunal decision, she took advice from her brother-in-law and his friend. It was in light of that advice that she sought Ministerial intervention. Following the unsuccessful outcome of that approach, she consulted further with her brother-in-law and applied to the Court a week after receiving the Minister’s Department’s letter.
I explained to the applicant that I had some difficulty distinguishing this case from SZQLD v Minister for Immigration & Anor [2011] FMCA 784, which the interpreter read to the applicant in its entirety. In that case, I said, at [18]-[21], that the applicant, having made a rational and informed choice to seek ministerial intervention in preference to, or at least prior to coming to Court, had not advanced a sufficient explanation for the delay in coming to Court:
On the issue of whether the Court should extend time for the filing of the application, I am not persuaded that an extension of time should be granted. First, the delay of 119 days is a significant one. Parliament has prescribed a time limit of 35 days for policy reasons and an extension of time of approximately three times that time limit should not be lightly granted. I accept as truthful the applicant’s explanation for his delay in coming to court. The applicant, in light of the notification received from the Tribunal and the information about his rights, sought guidance from a friend who had also been through the process of review before the Tribunal. That advice was that the applicant’s best course was to seek ministerial intervention. The applicant accepted that advice and sought that intervention. That approach was unsuccessful. The applicant now believes that he has made a mistake. I do not think that necessarily follows. In my view, on the applicant’s evidence, he made a rational choice, based on his circumstances and his available options.
The Minister relies upon the Full Federal Court decision of Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [29]:
I do not think that the applicant’s approach to the Minister under s.351 of the Act provides an acceptable explanation for his failure to lodge an appeal within time. Indeed, particularly considering the timing of that approach, I am disposed to the view, in the absence of any helpful evidence from the applicant to the contrary, that the applicant’s present attempt to place himself in a position whereby he might lodge an appeal well out of time appears to be a kind of “Plan B” to which resort was had once the approach under s.351 proved unsuccessful.
It does not appear on the authorities that an applicant who seeks ministerial intervention is disqualified from later seeking an extension of time to file an application for judicial review of a Tribunal decision. However, the exercise of a rational choice to pursue ministerial intervention in preference to the pursuit of a legal right of review on a question of law is not a persuasive reason for the grant of an extension of time, simply because the approach to the Minister was not successful. To put it bluntly, applicants who make a rational and informed choice are not entitled to have their cake and eat it, too.
In my view this applicant made a rational and informed choice. I am not persuaded that the applicant has advanced a sufficient explanation for his delay in bringing these proceedings.
The delay in this case is a delay in excess of five months which is longer than the delay in SZQLD. As in SZQLD, I am not persuaded that the applicant has advanced a sufficient explanation for the delay in filing her application. Even if I had been persuaded that a sufficient explanation for the delay had been advanced, I would not be persuaded that the interests of the administration of justice require an extension of time because, in my view, there is no serious question to be tried in this case.
The judicial review application filed on 16 December 2011 asserts, simply, that the Tribunal failed to understand the applicant’s claim and misapplied the law. No particulars are provided. The Tribunal’s decision discloses that the applicant asserted a fear of persecution in the United States, arising out of a financial dispute apparently connected with the applicant’s husband’s business. The applicant’s husband is a United States citizen. The Tribunal accepted the facts, as asserted by the applicant, but reasoned that the dispute was a private one without a nexus to the Refugees Convention.
Further, the Tribunal reasoned that effective state protection was available in the United States against any future risk of harm and that that protection would not be refused to the applicant for any Convention reason. The applicant had also made claims relating to general racial harassment in the USA, having regard to her Middle Eastern heritage. The Tribunal found that there was no real risk of serious harm confronting the applicant in the USA for that reason.
The Tribunal went on to make an internal relocation decision which, in my view, was unnecessary and does not require consideration. The conclusions reached by the Tribunal were open to it on the material before it. The process followed by the Tribunal on the review appears to have been fair and in accordance with the Tribunal’s code of procedure. The Tribunal considered all elements or integers of the applicant’s claims. There is, in my view, no arguable case of jurisdictional error by the Tribunal.
For these reasons, I find that the applicant has failed to establish a sufficient reason for the Court to exercise its discretion to extend time, pursuant to s.477(2) of the Migration Act. I order that the application for an extension of time under s.477(2) of the Migration Act is refused.
I order that the judicial review application filed on 16 December 2011 is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs. The Minister seeks costs in accordance with the Court scale, noting that his solicitor and own client costs exceeded $5,000. The applicant did not wish to be heard on costs.
The Minister sought a costs order only against the first applicant, noting that the second applicant had not taken an active part in these proceedings and that the third, fourth and fifth applicants are minors, for whom the first applicant had been appointed the litigation guardian.
I order that the first applicant is to pay the costs and disbursements of and incidental to the application in the sum of $3,123 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 21 February 2012
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