SZRAC v Minister for Immigration

[2012] FMCA 136

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRAC v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 136

MIGRATION – Review of decision of Refugee Review Tribunal – whether in the interests of the administration of justice to extend time – leave for extension of time refused – application not competent.

Migration Act 1958 (Cth), ss.91R, 477

Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6
Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230

Applicant: SZRAC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3006 of 2011

Judgment of: Emmett FM

Hearing date: 27 February 2012

Date of Last Submission: 27 February 2012

Delivered at: Sydney

Delivered on: 27 February 2012

REPRESENTATION

The Applicant appeared in person with the assistance of a Fijian interpreter

Appearing for the Respondents: Richard Baird

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The proceeding before this Court, commenced by way of application filed on 29 December 2011, is dismissed as incompetent.

2. The applicant pay the costs of the first respondent fixed in the amount of $1,250.

NOTE A: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).

NOTE B: The affidavit of the applicant, sworn on 16 December 2011, filed on 29 December 2011 and annexing the decision of the Refugee Review Tribunal, was read by the applicant.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 3006 of 2011

SZRAC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks an extension of time in which to bring his application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 May 2011.

2. Section 477(1) of the Migration Act 1958 (Cth) (“the Act”) requires that an application for judicial review be lodged within 35 days of the notification to the applicant of the decision.

3. However, under s.477(2) of the Act that time period may be extended if, in the view of the Court, it is in the interests of justice to do so.

4. In order to comply with s.477(1) of the Act, the applicant’s application for judicial review was required to be filed by 22 June 2010, whereas it was not filed until 29 December 2011.

5. The first respondent opposed an extension of time being granted to the applicant on the basis that there was no explanation for the delay and that without further particulars and evidence, the grounds of the substantive application had no reasonable prospects of success. The applicant appeared for himself this morning although had the assistance of an interpreter in the Fijian language.

6. I explained to the applicant that the two issues for the Court would be whether his explanation for his delay was satisfactory and whether there was utility in granting an extension of time.

7. The applicant was given leave to give oral evidence to explain his delay in filing his application seeking judicial review of the Tribunal’s decision.

8. In evidence in chief, the applicant said that he was seeking legal advice on how to complete the Court application form and that was the essential reason for his delay.

9. In cross-examination, the applicant said that he received a copy of the decision on 19 May 2011, being the morning after the date of the Tribunal’s decision.

10. The applicant said that from that time until he filed the application he was trying to find a lawyer or someone to give him some advice.

11. The applicant said that he met with a pastor some time before Christmas but did not expand any further on the substance of any advice he may have received from the pastor.

12. In cross-examination, the applicant also said that in fact last week was the first time that he had made any approach to a lawyer and that last week he had made an application for Legal Aid.

13. Until that time, the applicant had done no more than discuss his plight with fellow detainees. I note that the applicant was in detention at the time of the Tribunal hearing and has been in detention since that time.

14. Whilst I accept that it may be difficult for someone in detention to have the same freedom to be able to approach a lawyer and seek legal advice, or to inform himself of his appeal rights in respect of a Tribunal decision, I am not satisfied that in this case the applicant took any reasonable steps to inform himself of his rights or to pursue them in reasonable time. In the circumstances, I am not satisfied that the applicant’s explanation for his delay was satisfactory.

15. Further, in relation to the applicant’s substantive application, each of the grounds was interpreted for the applicant and he was invited to say whatever he wished on each of those grounds. Those grounds are as follows:

    “1. The decision of the Refugee Review Tribunal is vitiated by jurisdictional error.

    2. The Tribunal denied my procedural fairness.

    3. The Tribunal denied me natural justice.

    4. The Tribunal constructively failed to exercise jurisdiction.

    5. The Tribunal was disabled from properly discharging its duty under section 425 in that a fraud was perpetrated on it by the interpreter in that the interpreter said things which is directly …[missing]… that which I said.”

    [Errors in the original.]

16. The first four grounds make bare assertions that are wholly unparticularised and do not by themselves disclose any error capable of review by this Court. The applicant did not provide any further explanation of those grounds despite being invited to explain to the Court the substance of his complaints with relation to each of those grounds.

17. In relation to ground 5, being the complaint about the interpretation, the applicant said that he was telling the Tribunal that he would be detained as soon as he returned to Fiji and that this explanation was not given fully to the Tribunal. I asked the applicant how he knew that his explanation was not given fully to the Tribunal, however, he was unable to provide an answer.

18. I asked the applicant if he had made any complaint to the Tribunal at the time or any subsequent complaint to the Tribunal, both of which he answered in the negative.

19. The applicant also read his affidavit filed on 29 December 2011 in support of his application annexing the Tribunal’s decision record. The affidavit recited briefly the procedural history of the matter; reiterated the applicant’s complaint about the interpreter in that the interpreter was not saying exactly the words regarding the applicant’s claims, and otherwise restated his grounds.

20. Without making any final conclusions as to whether or not the decision is affected by jurisdictional error, it is clear from the decision record that the Tribunal referred to the relevant law in considering his application, identified the applicant’s claims, summarised information given by the applicant to the Delegate, and noted in some detail the claims made by the applicant at the Tribunal hearing on 10 June 2010. The Tribunal’s decision record noted various exchanges it had with the applicant about his claims. The Tribunal noted country information to which it had regard and which it discussed with the applicant.

21. The Tribunal also had regard to a trip the applicant took in 2008 to New Zealand following which he returned to Fiji notwithstanding claims to fear persecution there. The Tribunal found this conduct to be inconsistent with a genuine or well-founded fear of persecution.

22. The Tribunal accepted that the applicant had engaged in certain relevant conduct in Australia but was not satisfied that he engaged in such conduct other than for the purpose of strengthening his claim to be a refugee and accordingly, pursuant to s.91R(3) of the Act, disregarded that conduct.

23. Ultimately, the Tribunal accepted the applicant’s claim of having been detained in early 2008 in Fiji as part of the interim government’s general intimidation of the population. However, the Tribunal did not accept that the applicant had any political profile through any support activities or social family connections.

24. The Tribunal also found that his detention and his treatment in early 2008 was not because of any links with the opposing party.

25. The Tribunal found that the applicant was of no further interest to the interim government or its agencies and did not accept that he was monitored, harassed or otherwise mistreated as claimed.

26. The Tribunal did not accept that the applicant would have to refrain from any political activities or discussions that he would otherwise wished to have engaged in were it not for a fear of persecution if he were to return to Fiji.

27. Ultimately, the Tribunal found that the applicant’s claimed fear was not well-founded and affirmed the decision under review.

28. The Tribunal’s findings and conclusion would appear to be open to it on the evidence and material before it and for the reasons it gave.

29. Whilst I cannot find that the applicant’s claims are entirely accurately summarised by the Tribunal or represent the totality of the applicant’s claims, the applicant has made no such complaint to this Court that the Tribunal’s decision record is not accurate.

30. In the circumstances, even accepting the applicant’s complaint that the interpreter did not tell the Tribunal that he would be detained if he returned to Fiji, that would be insufficient to establish that the Tribunal’s decision was affected by a jurisdictional error because of the quality of the interpretation (Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [38]-[50] and Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [15]-[22]). The Tribunal’s decision record makes clear that it understood that the applicant’s claim to fear harm if he was to return to Fiji.

31. As stated above, there is no other evidence before this Court in relation to any complaints made by the applicant about the interpretation to this Court.

32. In the circumstances, I am not satisfied that the applicant’s application has any, or any reasonable prospects, of success.

33. Further, as stated above, I am not satisfied that the applicant has provided a satisfactory explanation for his delay in filing his application for judicial review in this Court and accordingly the applicant’s application for an extension of time, pursuant to s.477 of the Act, is refused.

34. Accordingly, the application for judicial review of the Tribunal’s decision, dated 18 May 2011, and filed on 29 December 2011, is incompetent.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date:  1 March 2012