SZRLT v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 724
•17 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRLT v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 724 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – judicial review application filed out of time – refusal of an extension of time – observations on the calculation of time in considering an extension of time application. |
| Migration Act 1958 (Cth), s.477 |
| Abebe v Commonwealth of Australia (1999) 162 ALR 1 Hussein v Minister for Immigration (1999) 57 ALD 297 Minister for Immigration v Wu Shan Liang & Ors (1996) 185 CLR 259 WZANW v Minister for Immigration & Anor [2009] FMCA 1075 |
| Applicant: | SZRLT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1023 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 17 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2012 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms A Wain Minter Ellison |
INTERLOCUTORY ORDERS
The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth) be refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1023 of 2012
| SZRLT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
(as corrected)
I have before me an application received by the registry on 10 May 2012 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 12 March 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant had claimed a fear of persecution in Indonesia.
It was apparent to the applicant at the time he presented his application to the registry that he required an extension of time for the filing of it. He ticked “yes” in answer to the question, “does the applicant apply for an order that the time for making the application be extended, under section 477 of the Migration Act?”
The applicant advanced the following reasons for seeking an extension of time:
Because the fax machine was broken in detention centre I fax already 3, or 4 time to Federal Court, my application. Some English I can’t understand, I’m sorry.
The application is supported by an affidavit made by the applicant on 4 April 2012 annexing a copy of the Tribunal decision sent to him. I also have before me as evidence the court book filed on 12 June 2102.
The Minister has filed legal submissions for the purposes of dealing with the extension of time application. Those submissions detail the factual background to this case.
The applicant is a citizen of Indonesia who arrived in Australia on 21 January 2009 on a visitor visa, which was valid until 21 February 2009.[1] The applicant remained unlawfully in the community after the visa expired and was detained on 12 July 2011.[2] He is currently being detained at the Villawood Immigration Detention Centre where he applied for a protection (Class XA) visa on 23 January 2012.
[1] Court Book (CB) 13 and 63
[2] CB 63
In a statement attached to his application for a protection visa, the applicant claimed to fear harm in Indonesia because of his Chinese Indonesian ethnicity.[3] The applicant further claimed that corrupt Government officials in Indonesia would ask him for money and that he would be detained or imprisoned if returned. The applicant stated that he is currently “stateless” as his Karta Tanda Penduduk[4] card had expired and he did not know how to get another one.
[3] CB 39-40
[4] Indonesian “Resident Identity Card” (see CB 64 and 65)
A delegate of the Minister decided to refuse to grant the applicant a visa on 13 February 2012[5] and the applicant applied to the Tribunal for review of that decision on 14 February 2012.[6]
[5] CB 63-72
[6] CB 74-77
The applicant appeared before the Tribunal on 9 March 2012 where he was assisted by an interpreter and a registered migration agent.[7] The decision record of the Tribunal is the only evidence before the Court of what transpired at that hearing. The summary contained in the record indicates that at the hearing, the applicant stated that his only reasons for leaving Indonesia were to support his mother and to find employment[8] and he confirmed that “he does not fear harm in Indonesia as an ethnic Chinese or a Christian”.[9]
[7] CB 108-110
[8] CB 123 at [31]
[9] CB 123 at [32]
The decision record also indicates that the applicant agreed with the Tribunal’s assessment that his claim regarding corruption in Indonesia related to a more general problem and “would not affect him personally for any Convention reason”.[10]
[10] CB 123 at [34]
The decision record additionally indicates that the applicant claimed to fear that he had lost his citizenship because he had been out of Indonesia for several years. The Tribunal put to the applicant at the hearing that information before it did not indicate that that he would have difficulties obtaining a new passport.[11] The applicant claimed to be concerned that he would not be able to obtain anti-depressant medication in Indonesia[12] and that it would be difficult to find employment.[13]
[11] CB 123 at [35]
[12] CB 123 at [36]
[13] CB 124 at [37]
According to its decision record, the Tribunal put it to the applicant that his claims did not appear to be related to the Convention and did not establish that he faced harm for one of the five Convention reasons.[14] When asked if there was anything further that he wished to add, the applicant stated that there was not.[15]
[14] CB 124 at [38]
[15] CB 124 at [38]
The Tribunal’s findings and reasons
On 12 March 2012 the Tribunal affirmed the decision under review.[16] The primary basis for the Tribunal’s decision was the finding that the applicant's claims did not contain a requisite nexus to the Convention. In reaching this decision, the Tribunal made the following observations and findings:
a)the applicant had retracted his claim to fear harm because he is Chinese or Christian;[17]
b)the Tribunal accepted that the applicant does not have a valid passport but found the applicant could apply for a new passport having regard to information provided to the Tribunal by the Indonesian Consulate in 1994, which indicated “an Indonesian cannot lose his nationality as long as he or she has not embraced another nationality and that every Indonesian has the right to apply for an Indonesian passport”;[18]
c)the Tribunal accepted that corruption was a problem in Indonesia but was not satisfied that the corrupt activities of any officials would be directed at the applicant for a Convention reason;[19]
d)the Tribunal accepted that the applicant may have some difficulty finding employment in Indonesia but this would not be for a Convention reason;[20]
e)the Tribunal found that the applicant would be able to obtain anti-depressant medication in Indonesia comparable to that which he has been taking in Australia but, in any event, any difficulty in obtaining medication would not be for a Convention reason.[21]
[16] CB 117-126
[17] CB 124 at [42]
[18] CB 124 at [43]
[19] CB 125 at [44]
[20] CB 125 at [45]
[21] CB 125 at [46]
For the above reasons, the decision under review was affirmed.
On the question of the extension of time for the application to this Court, the applicant told me that he had nothing to say. He agreed that he had difficulty with the facsimile machine at the detention centre, but there was apparently no other reason for his delay in bringing this matter to court. The Minister deals with the general principles in relation to the consideration of an extension of time application in his written submissions. I agree with and adopt those submissions in relation to those principles.
By reason of s.477(1) of the Migration Act 1958 (Cth) (“the Migration Act”) an application to the Federal Magistrates Court for judicial review under s.476 must be filed within 35 days of the date of the migration decision. Pursuant to s.477(3)(b) the “date of the migration decision” is the date of the written statement made under s.430(1). Where an application for an extension of time is made in accordance with s.477(2), the Court has the power to extend the period for judicial review as it considers appropriate.
The decision of the Tribunal which forms the basis of these proceedings is dated 12 March 2012.[22] Accordingly, the last day for the applicant to file an application for judicial review under s.476 of the Migration Act was 16 April 2012. The applicant's application for an extension of time and judicial review of the decision was filed on 10 May 2012, 24 days out of time.
[22] CB 117-126
The Minister opposes the application for an extension of time of 24 days on the basis that the Court should not be satisfied that it is in interests of the administration of justice that an extension be granted (see s.477(2)(b) of the Migration Act).[23]
[23] It is noted that an application in the form required by s.477(2)(a) of the Migration Act is before the Court.
The Court has identified a number of factors relevant to a consideration of s.477(2)(b) of the Migration Act.[24] Of these, there are two considerations which the Minister submits should be found to be determinative in the circumstances of this case, namely:
a)the extent of the delay and the reason for the delay; and
b)the lack of merit in the substantive application.
[24] Cf SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 per Nicholls FM at [44]; WZANW v Minister for Immigration & Anor [2009] FMCA 1075 per Lucev FM at [26].
These two factors are discussed in more detail below, however, the Minister additionally submits that:
a)where the substantive application lacks merit, there is no prejudice to the applicant in rejecting the application for an extension of time because there are no reasonable prospects of the relief sought being granted; [25] and
b)there is no public interest satisfied by the grant of an extension of time where the substantive application lacks merit, in light of the time, money and resources that would be expended in defending the application.[26]
[25] ibid per Lucev FM at [108].
[26] Cf SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 per Nicholls FM at [194]
Parliament has prescribed a 35 day time limit in s.477(1) of the Migration Act in order to provide some certainty in the review of migration decisions on their merits. If the Court is to grant an extension of time a proper explanation for the delay in coming to court needs to be given. The applicant, in my view, has not advanced a satisfactory explanation for his delay in coming to court. While problems with a facsimile machine at the detention centre might provide an explanation for a delay of several days, they do not provide an explanation for two weeks delay. For that reason alone I would not be disposed to grant an extension of time.
Even if I were disposed to accept the explanation for the delay in this case, I would nevertheless refuse an extension of time because of the clear lack of merit in the proposed judicial review application.[27]
[27] WZANW v Minister for Immigration & Anor [2009] FMCA 1075 per Lucev FM at [35]
In assessing merit in circumstances where the application for an extension of time is being determined as a preliminary question the assessment must necessarily be broad, involving a consideration of the outline of the case in relation to which the party seeking the extension of time bears the burden of persuasion.[28] The burden has not been met in the circumstances of this case and it follows that it is not in the interests of the administration of justice that time be extended.[29]
[28] WZANW v Minister for Immigration & Anor [2009] FMCA 1075 per Lucev FM at [37]
[29] Cf SZNOR v Minister for Immigration & Anor [2009] FMCA 639 per Scarlett FM at [16]-[17] and [19]-[20]
The grounds of the application, filed on 10 May 2011, are as follows:
1. I need the protection of the Australia (sic) people.
2. That, by going back to my country will put my life in danger.
As is noted above, no amended application or submissions have been filed to expand or elaborate upon the applicant's grounds of review. Neither ground raised in the substantive application has sufficient merit to warrant the grant of an extension of time.
In order to be granted the relief sought in the substantive application to the Court, it must be demonstrated that the decision of the Tribunal was affected by jurisdictional error. Absent any such error, the decision is a is a “privative clause decision” and under s.474(1)(a) of the Migration Act, a privative clause decision is final and conclusive.[30]
[30] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Both grounds of the application merely cavil with the merits of the Tribunal’s decision and do not disclose any arguable jurisdictional error. It is well established that findings of fact are a function of the decision maker par excellence.[31]
[31] Cf Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54; Minister for Immigration v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 and 292; Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at 423
Further, the Tribunal’s decision was open to it on the evidence before it, for the reasons which it gave. The primary basis for the Tribunal’s decision was the finding that the applicant's reasons for not wanting to return to Indonesia were not Convention related.[32] Significantly, the decision record of the Tribunal indicates that the applicant retracted his claims relating to his religion and ethnicity at the hearing.
[32] in the sense considered in Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293, for example.
The Tribunal has no obligation to consider a claim which is not articulated and does not arise from the materials before it.[33] The Courts have previously accepted that, for the same reason, the Tribunal is not required to consider a claim which, although raised, is not supported by evidence and was subsequently withdrawn.[34]
[33] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [60]
[34] Cf SZEIV v Minister for Immigration [2006] FCA 1798 and SZOWB v Minister for Immigration & Anor [2011] FMCA 275 (27 June 2011) per Driver FM at [35]
Moreover, beyond the requirements set out in the other provisions of Division 4 of Part 7 of the Migration Act, s.425 does not require the Tribunal actively to assist an applicant to put his or her case or to carry out an inquiry to identify what the case might be.[35]
[35] Hussein v Minister for Immigration (1999) 57 ALD 297 at [38]
Accordingly, where the applicant had specifically and clearly withdrawn his claims relating to his ethnicity and his religion, it was open to the Tribunal to conclude that the applicant did not face a well‑founded fear of harm in Indonesia for a Convention reason.
There is one other minor issue concerning consideration of an extension of time which warrants mention. Section 477(3) of the Migration Act defines the meaning of the phrase “date of the migration decision.” Sub paragraph (b) provides relevantly that in the case of a written migration decision made by the Refugee Review Tribunal – this is the date of the written statement, under s.430(1) of the Migration Act. The copy of the Tribunal decision sent to the applicant is dated twice. It was dated on the cover sheet and it is again dated on the last page within a certification stamp signed on behalf of the Tribunal’s district registrar. In the present case, the two dates are the same. However, that is frequently not the case.
A difficulty arises where the written statement bears more than one date. The registrar’s certification is apparently added to a copy of the written statement prior to it being sent to the applicant and the Secretary in accordance with s.430A of the Migration Act. The date of notification of the Tribunal’s decision is clearly not relevant to the calculation of the limitation period in s.477(1) of the Migration Act. Clearly, time runs from the date of the migration decision, not the notification of it. However, where the written reasons of the Tribunal provided to an applicant bear two different dates I am inclined to the view that time should be calculated from the later of those dates. Otherwise an applicant is likely to be confused, and may suffer prejudice from the truncation of the limitation period.
In the present case, the issue is academic as both the date on the cover of the decision and the date of the certification are the same. It was also clear that the application presented to the registry was about two weeks out of time. However, in cases where the delay is only a day or so the issue could be one of significance. The issue is related to the question of when the Tribunal becomes functus officio, which has been dealt with in two judgments by Cameron FM: SZQOY v Minister for Immigration & Anor[36] and SZQQC v Minister for Immigration & Anor[37].
[36] [2012] FMCA 289
[37] [2012] FMCA 410
I conclude that the applicant’s request for an extension of time should be refused. In accordance with my reasons in SZRRL v Minister for Immigration[38], there is no need to make any further order to dispose of the application. I will order that an application for an extension of time, pursuant to s.477(2) of the Migration Act be refused.
[38] [2012] FMCA 691
In consequence of the refusal of the extension of time, the Minister seeks an order for costs fixed in the amount of $4,000. The Minister’s solicitor and own client costs exceed $6,000. Scale costs under the Court’s recently increased scale would be $3,239. The applicant claimed impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order. I am satisfied that costs of $4,000 have been reasonably and properly incurred on behalf of the Minister when considered on a party-and-party basis. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 26 September 2012
CORRECTION
Paragraph 34, line 7 – replace SZQAY with SZQOY.
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