SZRLN v Minister for Immigration

[2012] FMCA 1160

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRLN v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1160

MIGRATION – Review of decision by Refugee Review Tribunal – whether time should be extended to applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether grounds of application for judicial review have sufficient prospects of success such that it would be in the interests of justice to extend time – application for extension of time refused.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 425, 426, 426A, 474, 477 Pt.8

M211 of 2003 v Refugee Review Tribunaland Another (2004) 212 ALR 520 Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198
Minister for Aboriginal Affair & Anor v Peko-Wallsend (1985-6) 162 CLR 24
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459
WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277
W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407
NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528;
Abebe v Commonwealth (1999) 197 CLR 510
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592
Sunchen Pty Ltd v Commissioner of Taxation (2010) 264 ALR 447
N258/00A v Minister for Immigration and Citizenship (2000) 101 FCR 478
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration v Eshetu (1999) 197 CLR 611

Applicant: SZRLN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 976 of 2012

Judgment of: Emmett FM

Hearing date: 31 October 2012

Date of Last Submission: 9 November 2012

Delivered at: Sydney

Delivered on: 4 December 2012

REPRESENTATION

Appearing for the Applicant: Mr H Ford

Solicitors for the Applicant: Hugh Ford Solicitor

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper

ORDERS

1. The applicant’s application to extend time to allow her to rely on an application, filed 4 May 2012, seeking judicial review of a decision of the Refugee Review Tribunal dated 28 November 2011, is refused.

2. The applicant pay the costs of the first respondent fixed in the amount of $6,471.

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

NOTE B: The bundle of relevant documents identified as ‘Court Book’ and filed on 4 June 2012 was tendered by the first respondent and marked Exhibit 1R. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 976 of 2012

SZRLN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) brought by the applicant in circumstances where her application for judicial review, filed 4 May 2012, was filed more than 35 days from the date of the decision sought to be reviewed. Section 477 of the Act is as follows:

   “Time limits on applications to the Federal Magistrates Court

   (1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2)  The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:

   (a)  an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)  the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3)  In this section:

   ‘date of the migration decision’ means:

   (a)  in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 --the date of the written decision under that subsection; or

   (b)  in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the written statement under subsection 368(1) or 430(1); or

   (c)  in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the oral decision; or

   (d)  in any other case--the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

   (4)  For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

   (5)  To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”

2. The Refugee Review Tribunal (“the Tribunal”) decision is dated 28 November 2011. In the circumstances, the applicant’s application for a judicial review to this Court is in the order of 120 days in excess of the 35 day time limit provided for in s.477(1) of the Act.

1. However, pursuant to s.477(2) of the Act, this Court may extend the 35 day period if an application for that order is made in writing to the Court specifying why the applicant considers it is necessary in the interests of justice to make the order, and the Court is satisfied that it is necessary in the interests of justice to make the order extending the time period. The applicant has made such an application in writing.

Applicant’s explanation for delay

1. In the applicant’s application for judicial review filed 4 May 2012, the applicant identified the grounds of her application for an extension of time as follows:

   “1. The applicant has been seeking the intervention of the Minister in this matter. The Minister has taken an inordinately long period of time in which to make his decision.

   2. The applicant did not wish to waste the Courts time in this matter. This is a matter upon which the Minister should have intervened to allow the applicant an opportunity to put her case before the Tribunal. The Tribunal has denied the applicant procedural fairness and the Tribunal should now be required to accord the applicant with procedural fairness. If the Minister had decided to intervene then this would have obviated the need for there to be an appeal to the Court.

   3. The applicant is still waiting for the Minister to exercise his statutory right to intervene pursuant to section 48B of the Migration Act 1958. The Minister has refused to consider whether to exercise this power or not. The applicant is still waiting for the Minister to indicate whether he is going to intervene pursuant to section 48B or not.”

2. The applicant’s application for an extension of time was opposed by the first respondent. At the hearing, the applicant was represented by her solicitor, Mr Ford. By consent, Mr Ford was granted leave by the Court to lead evidence from the applicant as to her explanation for her delay in filing her application for judicial review in this Court.

1. The substance of the applicant’s oral evidence was that following the Tribunal’s decision, she approached her solicitor and was told that she had to seek judicial review of the Tribunal’s decision within 30 days of the date of decision. The applicant said that she had no money to proceed with Court proceedings. She said her solicitor told her that she could seek Ministerial intervention in respect of the Tribunal’s decision and that she adopted that course. The applicant also said that she had suffered from depression following the Tribunal’s decision to refuse her protection visa application and had been hospitalised after the expiration of the 30 days. The applicant said that she understood that she was required to pay a filing fee to this Court of $400 and was not aware that she could apply to have the fee waived. She said that at the time she could not afford the filing fee and that she subsequently borrowed money from friends to commence her proceeding in this Court.

2. In cross-examination, counsel for the first respondent, Mr Reilly, put to the applicant that she had decided to pursue Ministerial intervention because it did not cost her any money and that it was only when her request for Ministerial intervention was refused that she decided to commence this proceeding. She replied that she did not know all the options or what to do. However, she agreed that she knew there was a time limit to appeal.

3. It is well established that a decision to pursue Ministerial intervention indicates an acceptance of the Tribunal’s decision (see M211 of 2003 v Refugee Review Tribunaland Another (2004) 212 ALR 520 at [24] and [36] per Black CJ, Sackville and Sundberg JJ; Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198 at [14] per Goldberg J).

4. The applicant’s delay is significant, she was aware of the time limit and chose, for whatever reason, to pursue Ministerial intervention. There was no medical evidence before this Court to suggest that the applicant was unfit to make decisions or give instructions. Indeed she gave instructions to pursue Ministerial intervention in the knowledge that she had only 30 days to seek judicial review of the Tribunal’s decision.

5. In the circumstances, the applicant’s explanation provided to this Court for her delay is not satisfactory, particularly in light of her election to pursue Ministerial intervention.  

Grounds of substantive application

1. Although I am not satisfied that the applicant has provided a satisfactory explanation for her delay, in considering whether it is in the interests of justice to extend time, it is also necessary to consider whether the grounds upon which the applicant’s relies in demonstrating that the Tribunal’s decision is affected by jurisdictional error have any reasonable prospects of success.

2. To that end, below is a summary of the applicant’s claims for protection, the Delegate’s decision, the Tribunal’s review and decision, and an assessment of the grounds relied upon by the applicant.

The applicant’s application for a protection visa

1. In her protection visa application, the applicant stated that she left Zimbabwe because she could not find employment and she wanted to escape Zimbabwe’s corruption, unstable economy, “fragile education system”, unstable politics, frequent strikes and intimidation of local civilians.

2. The applicant further stated that, recently, when her younger sister was walking the applicant’s son to school they were approached by strangers who demanded money and threatened them, and told them to “beware” because they knew the applicant was overseas and was sending money back to Zimbabwe in support of the Movement for Democratic Change (“MDC”) political party. The MDC are in opposition to the government party Zimbabwe African National Union – Patriotic Front (“Zanu-PF”).

3. Soon afterwards, the applicant’s mother told the applicant that some of her neighbours notified Zanu-PF activists that she was involved in the MDC. Due to her mother’s “labelled involvement in the MDC”, the applicant fears that she will be harshly targeted by Zanu-PF activists.

4. The applicant also stated that Zanu-PF activists work “hand in hand” with the military and use violence against any opposition, including those without Zanu-PF membership cards. The applicant claimed that Zanu-PF activists have recently been doing door-to-door membership checks and she fears that she will be arrested if returned to Zimbabwe because she does not have a Zanu-PF membership card.

5. Consequently, if returned to Zimbabwe, the applicant fears that she will be detained, punished and possibly tortured for being involved with the MDC.

The Delegate’s decision

1. On 16 June 2011, the applicant attended an interview with the Delegate.

2. On 21 June 2011, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention.

3. The Delegate refused the applicant a protection visa because it found that the applicant’s motivation for departing Zimbabwe was economic and did not have a Convention nexus and that she was unable to credibly discuss her claims for protection at interview. The Delegate also found that the applicant’s delay of some three years in lodging a protection visa application cast doubt on the genuineness of her fear of persecution.

The Tribunal’s review and decision

1. On 1 July 2011, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The applicant provided further documents in support of her review application.

3. On 21 October 2011, the Tribunal wrote to the applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 17 November 2011 to give oral evidence and present arguments. The letter also advised the applicant that if she did not attend the hearing, that the Tribunal may make a decision without taking any further action to allow or enable her to appear before it. The letter stated that the hearing would only be changed for “good reason”.

4. On the morning of 17 November 2011, the applicant’s migration agent wrote to the Tribunal requesting a short adjournment on the basis that the migration agent had not been able to contact the applicant for the past six days and that he did not think the applicant would be attending the hearing today. The letter from the migration agent also stated that he was requesting an adjournment given that he was not present at the hearing.

5. The applicant’s migration agent was advised that the Presiding Member proposed to wait and see if the applicant attended the hearing scheduled for 12:00pm and, if the applicant did attend, the representative could participate by telephone. The migration agent was told that if the applicant did not attend, the Member would consider the request for an adjournment.

6. The applicant did not appear before the Tribunal at the scheduled time and received no further contact from the applicant or her migration agent. In the circumstances, the Tribunal refused the request for an adjournment.

7. The Tribunal noted that, on 18 November 2011, the applicant contacted the Tribunal by telephone and said that her migration agent had only told her of the hearing on the previous day. The applicant said she wished to have another hearing and provided a change of contact details withdrawing her previous authorisation to the migration agent to receive correspondence on her behalf.

8. Pursuant to s.426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it. However, the Tribunal told the applicant that it would accept and consider any further information she wished to provide before 24 November 2011.

9. On 24 November 2011, the applicant provided further documents, including a letter from herself, medical reports for her mother, and other documents in the nature of printed articles and news reports.

10. The Tribunal had regard to the applicant’s written claims in support of her protection visa application and her letter dated 24 November 2011. The Tribunal also identified independent country information to which it had regard with great specificity. The information included information on Zanu-PF, the MDC (including its members and family members of high ranking MDC organisers), the Ndebele, returning asylum seekers, Women of Zimbabwe Arise (“WOZA”) and youth brigades.

11. The Tribunal found that, on the basis of the applicant’s passport, she is a citizen of Zimbabwe and that her claims for protection are based on political opinion and ethnicity.

12. In relation to the applicant’s claim based on political opinion, the Tribunal noted that she had not made any claim that she herself is or has been actively involved in politics, either in Zimbabwe or in Australia. Her claim was based on her assertion that she would be imputed as a supporter or financial supporter of the MDC or be seen as anti-Zanu-PF.

13. The Tribunal then identified claims made by the applicant in respect of which it had concerns which it had not had the opportunity to address with the applicant at a hearing. The Tribunal found that the information and material before it was not sufficient to address those concerns. Consequently, the Tribunal found that there is not a real chance that the applicant will experience serious harm as required by s.91R(1)(b) of the Act and did not accept that she would face a real chance of persecution for a Convention based reason if she was to return to Zimbabwe.

14. Accordingly, the Tribunal affirmed the decision under review.

The applicant’s grounds in support of her application for judicial review of the Tribunal’s decision

1. The grounds of the applicant’s substantive application upon which she relies in establishing jurisdictional error on behalf of the Tribunal are as follows:

   “1. That the Tribunal took account of an irrelevant consideration.

   2. That the Tribunal failed to take account of relevant considerations.

   3. That the Tribunal failed to accord the applicant with procedural fairness.

   4. That the Tribunal had [no] evidence upon which to base its decision to refuse the application.

   5. That the Tribunal has imposed on the applicant an impermissible onus of proof.”

2. Mr Ford confirmed that the applicant withdrew grounds 6 to 10 of the application filed on 4 May 2012. Mr Ford also corrected ground 4 above to assert that the Tribunal had no evidence upon which to base its decision to refuse the application.

Ground 1

1. Mr Ford identified the following matters as being irrelevant considerations taken into account by the Tribunal:

   (i) The Tribunal’s statement that the applicant “has not made any claim that she herself is or has been actively involved in politics, either in Zimbabwe or in Australia”.

   (ii) The Tribunal’s statement that the language of an email provided by the applicant, dated 22 February 2011, appeared “stilted” and was not as would be expected between sisters.

2. Neither of the Tribunal’s statements would appear to refer to information or evidence that the Act obliged the Tribunal not to consider. Neither statement would appear to demonstrate any error on the part of the Tribunal going to its jurisdiction (see Minister for Aboriginal Affair & Anor v Peko-Wallsend (1985-6) 162 CLR 24 at 39).

3. Accordingly, ground 1 has no reasonable prospects of success.

Ground 2

1. Ground 2 asserts that the Tribunal failed to take account of relevant considerations.

2. In support of ground 2, Mr Ford submitted that the Tribunal based its adverse findings only on the fact that the applicant was not present at the hearing and that is not sufficient to ground the Tribunal’s adverse findings. Mr Ford submitted that the Tribunal should have made enquiries about the applicant’s claims pursuant to s.424 and s.426 of the Act.

1. However, it is well established that there is no general obligation on a Tribunal to investigate an applicant’s claims (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).

2. The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. There would not appear to be any obvious failure by the Tribunal in the case before this Court to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, and none is identified by the Applicant (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

3. It may be that, in certain circumstances the Tribunal may be obliged to make some further investigation (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27]; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [21], [24] and [25]; W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 at [74]-[78]; NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 at [18]-[21]). However, the case before this Court would not appear to be such a situation. The applicant did not appear to give any evidence of any degree of cogency that would have prompted an obligation on the part of the Tribunal to investigate her claims further. The applicant made no request that any particular aspect of her claim be investigated and failed to attend the scheduled hearing. The Tribunal had regard to the further information provided by her in her post-hearing letter dated 24 November 2011.

4. It is not for the Tribunal to make out the applicant’s case for her (see Abebe v Commonwealth (1999) 197 CLR 510 at [187]). Rather, it is for the applicant to satisfy the Tribunal, being the relevant decision-maker, that she meets the criteria for being a refugee. If the Tribunal, as the relevant decision-maker is not so satisfied, pursuant to s.65(1) of the Act, the applicant must be refused a protection visa.

5. A fair reading of the Tribunal’s decision record suggests that the Tribunal identified those aspects of the applicant’s claims about which it had concerns leading it not to accept the applicant’s claims. The Tribunal repeatedly stated that there was insufficient information before it to support the applicant’s claims and that as the applicant did not attend the scheduled hearing to provide further information, and in the absence of independent evidence to support the claims, the Tribunal did not accept the applicant’s claims.

6. In particular, the Tribunal referred to the applicant’s claim that her sister in Zimbabwe told her that when she was taking the applicant’s son to school they were approached by strangers demanding money and telling them to beware. She said her sister told her that these people said that the applicant and her sister in Australia were sending money and providing their family with money so they could provide funding for MDC activities. However, the Tribunal noted that the emails from the applicant’s sister did not refer to this incident. In those circumstances, the Tribunal found there was insufficient evidence before it about that incident and found that it had not occurred as claimed. In the course of rejecting those claims, the Tribunal noted that the applicant did not attend the scheduled hearing to provide further information.

7. The Tribunal went on to make similar findings in relation to the applicant’s claims that she would be targeted as an MDC supporter because of her mother’s support for the MDC; that she would be considered a traitor by the Zanu-PF because she is in Australia; that being an asylum seeker in Zimbabwe is a serious offence and would brand her as an MDC supporter and anti-Zanu-PF; that Zanu-PF activists target innocent civilians who do not support Zanu-PF and because she does not have a Zanu-PF she fears arrest and possible torture if she does not join Zanu-PF; that Zanu-PF activists with the military and youth brigades go door-to-door to check membership cards; that Zanu-PF activists demanded her mother and sister get cards, as a result of which her mother told her not to visit Zimbabwe as she could be in great danger; and, that her mother attends WOZA meetings.

8. Ultimately, the Tribunal rejected all these claims comprehensively, and in terms, on the basis of a lack of information before it and in light of country information that did not support the applicant’s claims. It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

9. The applicant did provide an email purportedly from her sister in support of her claims relating to Zanu-PF activists coming to the applicant’s family’s house and requesting membership cards. In relation to that email, the Tribunal stated as follows:

   “There is no verification of the origin of the email, or of its contents; the language appears stilted and not such as would be expected between sisters; it appear to have been specifically written to support the applicant’s claims, rather than being an email including this information. Further, the information in this email, that the applicant’s mother showed her MDC membership cards is contrary to that given by the applicant in her claims, when she states that ‘my mother is an MDC supporter and not a member’. As the applicant did not attend the hearing, the Tribunal has not been able to clarify the contradiction in the information.”

10. Those findings would appear to have been open to the Tribunal on the evidence and material before it and for the reasons it gave.

11. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

12. Further, a fair reading of the Tribunal’s decision record suggests that the Tribunal was expressing its lack of satisfaction about the applicant’s claims in terms of explicit rejection of the details of her claims. It would also appear to be open to the Tribunal to find that each of the assertions made by the applicant had not occurred. Those findings led the Tribunal to find that the applicant would not face a real chance of persecution for reason of her real or imputed political opinion if she was to return to Zimbabwe, based on the evidence and material before it. It would also appear to be open to the Tribunal to have regard to the failure of the applicant to attend the hearing in assessing the weight it should place on concerns it had about her claims arising from insufficient evidence and in the light of country information inconsistent with the applicant’s claims.

13. Moreover, the applicant was already on notice in the Tribunal’s s.425 letter that, prior to the hearing, whatever information and material the Tribunal had was insufficient to enable it to make a favourable decision on that information alone. Moreover, the Delegate refused the applicant a protection visa because it found that the applicant’s motivation for departing Zimbabwe was economic and did not have a Convention nexus and that she was unable to credibly discuss her claims for protection at interview. The Delegate also found that the applicant’s delay of some three years in lodging a protection visa application cast doubt on the genuineness of her fear of persecution. In such circumstances, it should have been apparent to the applicant that her credibility was an issue arising from the Delegate decision for review before the Tribunal (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at [35]-[36]).

14. Accordingly, ground 2 has no reasonable prospects of success.

Ground 3

1. Ground 3 asserts that the Tribunal failed to accord the applicant procedural fairness. In support of ground 3, Mr Ford submitted that the Tribunal had failed to grant the applicant an adjournment despite receiving a request on the morning of the hearing from Mr Ford.

2. I refer to [23] to [34] above in relation to ground 3.

3. The Tribunal wrote to the applicant in accordance with s.425 of the Act inviting her to come to a hearing to give evidence and present arguments relating to the issues arising in her case. The letter informed the applicant that it had considered the material before it but was unable to make a favourable decision on that information alone. The letter was addressed to the applicant but sent to her migration agent, Mr Hugh Ford, in accordance with his nomination in her Application for Review as her authorised recipient.

4. The Tribunal’s decision record makes clear that it was aware of the applicant’s migration agent’s request for an adjournment on the morning of the hearing on the basis that the migration agent had been unable to contact the applicant for the past six days and that she would probably not attend the hearing. Despite that communication, the Tribunal told the migration agent that the Presiding Member would wait and see if the applicant appeared at the scheduled time whereupon he would consider any further adjournment if necessary. The Presiding Member waited until the time scheduled for the hearing had passed before exercising his discretion to refuse any further postponement of the hearing.

5. Thereafter, the Tribunal was contacted the following day by the applicant seeking a further adjournment. However, the Presiding Member decided to exercise her discretion pursuant to s.426A of the Act to make her decision on the review without taking any further action to enable the applicant to appear before it. The applicant was advised by the Tribunal that she had until 24 November 2011 to provide any further information she wished.

6. In the circumstances, there would appear to be no error identified by the applicant in the exercise of the Tribunal’s discretion and none is apparent on the face of the Tribunal’s decision record.

7. Accordingly, there would appear to be no denial of procedural fairness on the part of the Tribunal in exercising its discretion under s.426A of the Act to proceed to make its decision without taking any further step to enable the applicant to appear before it.

8. Accordingly, ground 3 has no reasonable prospects of success.

Ground 4

1. Ground 4 asserts that the Tribunal had no evidence upon which to base its decision to refuse the application.

2. In support of ground 4, Mr Ford referred to various findings made by the Tribunal that incidents alleged by the applicant did not occur. Mr Ford submitted that the Tribunal had no evidence on which to base its rejection of that evidence.

3. However, it is well established that the ‘no evidence’ ground is not available where the finding challenged is in substance a negative one. In Sunchen Pty Ltd v Commissioner of Taxation (2010) 264 ALR 447 at [43]-[45], Perram J sets out a series of authorities in support of that proposition, all of which are migration matters.

4. In N258/00A v Minister for Immigration and Citizenship (2000) 101 FCR 478 Katz J said at [27]:

   “There is a longstanding distinction made in the law (including in administrative law) between finding a fact to exist when there is no evidence that that fact does exist (which is an error of law) and not finding a fact to exist when there is some evidence that that fact does exist (which is an error of fact only). Such a strained construction of the provision would thus involve this Court in an intrusion into the merits of the administrative decisions under review by it under the Act.”

5. The findings in respect of which the applicant complains in ground 4 are negative findings that certain events alleged by the applicant did not occur.

6. Although it may not have been necessary for the Tribunal to make those findings, having made them it was bound by s.430(1)(c) of the Act to set them out (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68]-[69]). It would appear that there is no error in the Tribunal doing so.

7. Accordingly, ground 4 has no reasonable prospects of success.

Ground 5

1. Ground 5 asserts that the Tribunal imposed on the applicant an impermissible onus of proof.

2. In support of ground 5, the solicitor for the applicant, Mr Ford, submitted that it is up to the Minister to be satisfied and it is not the applicant who must satisfy the Minister, that the Tribunal is under a duty to verify the claims made, that the Tribunal imposed a burden of proof on the applicant in that the Tribunal expected the applicant to provide evidence in support where the applicant does not have to do so, and the Tribunal should have investigated the applicant’s claims.

3. In particular, Mr Ford referred to the Tribunal’s finding that there was insufficient evidence before it to satisfy it in relation to the applicant’s allegation that her sister and son in Zimbabwe were approached by the MDC on their way to school. The Tribunal stated there was insufficient evidence before it as to when this alleged incident occurred, what was actually said, and whether any specific threats were made. The Tribunal noted that the applicant did not attend the scheduled hearing to provide further information.

4. The Tribunal then rejected the specific assertions made by the applicant and found that her sister and son were not approached as claimed.

5. There would appear to have been no imposition by the Tribunal of an impermissible onus of proof upon the applicant in making those findings. The Tribunal provided reasons for its rejection of the applicant’s evidence and those findings would appear to be open to it for the reasons it gave.

6. Mr Ford also referred to the Tribunal’s finding that it was not satisfied that the applicant would be seen as a supporter of the MDC due to her mother’s claimed support. The Tribunal’s reasons for that lack of satisfaction were that it had not had the opportunity to obtain further evidence from the applicant at a hearing and did not have independent evidence before it to support the applicant’s claims. As stated above, it was for the applicant to satisfy the Tribunal that she met the criteria for being a refugee.

7. It would appear to be open to the Tribunal not to be satisfied about the applicant’s claim that she would be seen as a supporter of the MDC due to her mother’s claimed support for the reasons given by the Tribunal.

8. Mr Ford also referred to the Tribunal’s finding that it was not satisfied that people overseas are thought by the Zanu-PF to be traitors. The Tribunal found that there was no information before it to support that assertion and that the applicant had not attended the scheduled hearing to provide further information.

9. In the circumstances, it would appear to have been open to the Tribunal not to be satisfied about that claim for the reasons it gave.

10. In Minister for Immigration v Eshetu (1999) 197 CLR 611, in considering whether an onus lies upon an applicant for a visa, Callinan J said at [195]:

    “In a practical sense it would be a brave or unrealistic applicant who did not at least raise in favour of the application all that could be raised by him or her, in order to ensure that the Tribunal was left in a sufficient state of satisfaction as to the entitlement to a visa.”

11. It is well established that the proceeding before the Tribunal is inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or arguments she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out (see Abebe at [187]).

12. The Tribunal was obliged to assess the applicant’s claims and the evidence provided in support. As stated above, the Tribunal was not required to accept the claims made by the applicant and did not have to possess rebutting evidence to reject an assertion that it found not to be made out. As stated above, the duty imposed on the Tribunal is a duty to review and not a duty to inquire.

13. In the circumstances, a fair reading of the Tribunal’s decision record does not appear to support the contention that the Tribunal imposed on the applicant an impermissible onus of proof.

14. Accordingly, ground 5 has no reasonable prospects of success.

Conclusion in relation to application for extension of time

1. In circumstances where the applicant has not provided a satisfactory explanation for her delay in seeking judicial review of the Tribunal’s decision and the grounds advanced for judicial review have no reasonable prospects of success, it is not in the interests of justice that time be extended to the applicant to seek judicial review of the Tribunal’s decision.

2. Accordingly, the application for an extension of time should be dismissed with costs.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: 

Date: 4 December 2012