SZRLV v Minister for Immigration - [2012] FMCA 790

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRLV & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 790

MIGRATION – Review of decision by Refugee Review Tribunal – whether time should be extended to applicants’ to file an application for judicial review – whether applicants explanation for delay in filing application is satisfactory – whether application has any, or any reasonable, prospects of success – whether the Refugee Review Tribunal erred in not taking evidence from the applicants’ witnesses – whether the Refugee Review Tribunal considered the applicants’ wishes – no, or no reasonable, prospects of success – application for extension of time refused.

Migration Act 1958 (Cth), ss.91R, 417, 422B, 425, 425A, 426, 477

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
Sithamparapillai & Anor, Ex parte - Re MIMA & Anor [2004] HCATrans 364
Plaintiff M90/2009 v Minister for Immigration and Citizenship& Anor [2009] HCATrans 279
Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118

First Applicant:

SZRLV

Second Applicant:

SZRLW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1050 of 2012

Judgment of:

Emmett FM

Hearing date:

29 August 2012

Date of Last Submission:

29 August 2012

Delivered at:

Sydney

Delivered on:

4 September 2012

REPRESENTATION

The applicants appeared in person with the assistance of an interpreter in the Kavithi Fijian language.

Counsel for the Respondents:

Ms R Graycar

Solicitors for the Respondents:

Clayton Utz

ORDERS

The applicants’ application for leave to extend time to allow them to rely on an application, filed on 15 May 2012, seeking judicial review of a decision of the Refugee Review Tribunal dated 26 October 2011, is refused.
The applicants pay the costs of the first respondent fixed in the amount of $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1050 of 2012

SZRLV

First Applicant

SZRLW

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application by the applicants for leave to extend time to allow them to rely on an application, filed on 15 May 2012, seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 26 October 2011.
Section 477(1) of the Migration Act 1958 (Cth) (“the Act”) requires that an application for judicial review of the Tribunal’s decision be filed within 35 days of the date of the decision. Plainly, the applicants’ application was filed more than six months after that decision. However, s.477(3) of the Act gives power to the Court to extend the time for bringing such an application if it is in the interests of justice to do so.
On 27 July 2012, an amended application was prepared by Kinslor Prince Lawyers under the RRT Legal Advice Scheme for the assistance of the applicants. Mr Prince appeared amicus curiae at the hearing to explain the grounds in the amended application. Following submissions made by Mr Prince on the grounds of the substantive application, Mr Prince was excused by the Court from further attendance and participation. The Court thanked Mr Prince for his assistance.
Thereafter, the applicants appeared with the assistance of an interpreter in the Kavithi Fijian language. The first named applicant (“the Applicant”) is the husband of the second named applicant whose claims are dependent upon his. Both applicants were invited to say what they wished in support of their application. However, only the Applicant spoke on behalf of both the applicants.
I explained to the applicants that the two critical issues to which the Court would be having particular regard were the applicants’ explanation for their delay in filing their substantive application and whether the application has any prospects of success.
The Applicant confirmed that the applicants had not filed any evidence in support of either application, despite having been directed to do so by a Registrar of the Court on 22 June 2012 at the first return date of this matter. The Applicant sought leave to give evidence in support of the application for an extension of time and was granted leave to do so.
In evidence-in-chief, the Applicant told the Court that he was not aware of the time frame for the filing of an application to this Court. The Applicant was cross-examined by counsel for the first respondent, Ms Graycar. The further evidence that emerged from that cross-examination was that a week or so after the Tribunal hearing, the applicants went to see a migration agent to discuss their options. The migration agent told them that they could seek Ministerial intervention pursuant to s.417 of the Act or could apply to this Court. The Applicant agreed that he knew he had the opportunity to come to this Court. The Applicant said that he could not remember whether the migration agent had told them how long they had to apply to this Court. He said that in any event the applicants elected to pursue Ministerial intervention rather than come to Court.
In the circumstances, I am satisfied that the applicants were aware of the options they had to seek Ministerial intervention or to pursue an application for judicial review to this Court. They chose the former.
It is well established that an applicant’s conduct in making an application under s.417 of the Act is indicative of a decision to abandon the course which would seek to challenge the decision of the Tribunal and reinforces the propriety of a proceeding being brought to an end (see M211 of 2003 v Refugee Review Tribunaland Another (2004) 212 ALR 520 at [24] and [36]; Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198 per Goldberg J at [14]).
In Sithamparapillai & Anor, Ex parte - Re MIMA & Anor [2004] HCATrans 364 at pages 18-19 of the transcript, Hayne J expressed the view that the election of an applicant to pursue Ministerial intervention pursuant to s.417 of the Act “would be reason enough to conclude the proceedings brought should stand dismissed”.
Similar views were expressed by Crennan J in Plaintiff M90/2009 v Minister for Immigration and Citizenship & Anor [2009] HCATrans 279 at page 24 of the transcript, where Crennan J found that if an applicant pursued Ministerial intervention pursuant to s.417 of the Act, that was sufficient reason for finding that it was not necessary in the interests of justice to grant an extension of time. However, Crennan J found that because the delay was relatively short, it was appropriate to also consider the utility of granting an extension of time.
In the circumstances, I am not satisfied that the decision of the applicants to elect to pursue Ministerial intervention pursuant to s.417 of the Act is a sufficient explanation for the failure of the applicants to file their application seeking judicial review of the Tribunal’s decision within the specified time of 35 days as required by s.477(1) of the Act.
Whilst I am not satisfied that a delay of six months is relatively short, given that the applicants are self represented, I will proceed to consider the utility of extending time.

The Applicant confirmed that the applicants relied on the grounds in the amended application prepared on their behalf by Kinslor Prince Lawyers and filed on 27 July 2012. Those grounds are as follows;
“Ground One
In deciding to affirm the decision of the First Respondent, the Second Respondent committed an error of law amounting to a jurisdictional error by breaching section 426 of the Migration Act 1958 (the Act).
Particulars
(a) On 1 September 2011 the Second Respondent mailed to the First Applicant a notice under section 425A of the Act dated 31 August 2011: CB 83.
(b) Notification of the notice under section 425A occurred seven working days after the date of the notice, being 9 September 2011.
(c) Within 7 days of being notified under 426(1), being on 16 September 2011, the First Applicant gave the Tribunal written notice that the applicant wanted the Tribunal to obtain oral evidence from two person named in the notice, being Talei Barbara Inia and Rahul Raiu (the witnesses).
(d) Under s426 of the Act the Tribunal was obliged to give consideration as to whether to obtain evidence from the witnesses.
(e) On the evidence before the Tribunal it was apparent to the Tribunal the witnesses may have been able to provide evidence about both the First Applicant’s political activities in Australia and the First Applicant’s motivation for engaging in those activities. Refer CB 86, CB 129 and CB 149. Of particular importance in this regard is that the first witness, Talei Barbara Inia was identified as the ‘FDFM Secretary’ representing the organisation Fiji Democracy and Freedom Movement (CB 86). The Tribunal had a letter from this organisation signed by its President (CB 150, 151). The letter claimed that the First Applicant’s motivations for being involved with the Movement were genuine political motivations. In particular, the letter stated that the First Applicant ‘displayed a sense of loyalty and dedication of the highest order to the cause and pursuit of the objectives of the Movement.’
(f) The Tribunal was not satisfied that the First Applicant’s conduct in Australia was engaged in otherwise than for the purpose of strengthening his claim to be a refugee. (CB 174, paragraph 61 decision Refugee Review Tribunal). The Tribunal came to that conclusion without taking evidence from either of the witnesses (CB 155 paragraph 23).
(g) The Tribunal did not provide any reason for not obtaining evidence from the witnesses other than stating that it did not consider it necessary (CB 155 paragraph 23). In deciding not to take evidence from the witnesses the Tribunal either failed to take into account a relevant consideration in exercising its discretion under s426 of the Act or failed to exercise this discretion in a manner that was fair and just in the circumstances of the case.
Ground Two
In deciding to affirm the decision of the First Respondent, the Second Respondent committed an error of law amounting to a jurisdictional error by failing to take into account a relevant consideration.
Particulars
(a) The Tribunal was not satisfied that the First Applicant’s conduct in Australia was engaged in otherwise than for the purpose of strengthening his claim to be a refugee (CB 174, paragraph 61 reasons for decision). The Tribunal came to that conclusion without taking evidence from either of the witnesses (CB 155 paragraph 23).
(b) On the evidence before the Tribunal it was apparent to the Tribunal that the witnesses may have been able to provide evidence about both the First Applicant’s political activities in Australia and the First Applicant’s motivation for engaging in those activities. Refer CB 86, CB 129 and CB 149. Of particular importance in this regard is that the first witness, Talei Barbara Inia was identified as the ‘FDFM Secretary’ representing the organisation Fiji Democracy and Freedom Movement (CB 86). The Tribunal had a letter from this organisation signed by its President (CB 150, 151). The letter claimed that the First Applicant’s motivations for being involved with the Movement were genuine political motivations. In particular, the letter stated that the First Applicant ‘displayed a sense of loyalty and dedication of the highest order to the cause and pursuit of the objectives of the Movement.’”
As stated above Mr Prince appeared before the Court to explain the grounds. The Applicant confirmed that the applicants had nothing further to add to the submissions made by Mr Prince in support of those grounds.

Ground 1

Ground 1 contends that the Tribunal erred in its decision not to take evidence from the applicants’ witnesses in breach of s.426 of the Act.
Section 426 of the Act is as follows:
“Applicant may request Refugee Review Tribunal to call witnesses
(1) In the notice under section 425A, the Tribunal must notify the applicant:
(a) that he or she is invited to appear before the Tribunal to give evidence; and
(b) of the effect of subsection (2) of this section.
(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.”
It is common ground that the Tribunal was notified in accordance with s.426(2) of the Act within seven days of being invited to come to a hearing pursuant to ss.425 and 425A of the Act.
On the applicants’ “Response to Hearing Invitation Form” (“the Response Form”) received by the Tribunal on 16 September 2011, the applicants identified two witnesses from whom they requested the Tribunal receive oral evidence.
The first witness was the Secretary of the Fiji Democracy and Freedom Movement (“FDFM”). The questions on the Response Form asked for a description of the evidence and how it was relevant to the applicants’ case. The answer stated, “We are executive committee members of FDFM. We are targets of the Fijian Military Regime. We are singled out because of our activities.”
The second witness was the publisher of the National Australian Fiji Times. His evidence and its relevance was described as, “I work with him for the weekly publication. He has agreed to publish my book – Blood in Paradise.”
Mr Prince referred the Court to a curriculum vitae of the Applicant where he stated that he was working with the publisher on the launch of a Fijian weekly in Sydney. Mr Prince also referred the Court to the minutes of a FDFM meeting showing the attendance of the applicant at that meeting.
Mr Prince also took the Court to a letter on FDFM letterhead addressed to the Presiding Member of the Refugee Review Tribunal, dated 27 September 2011. The letter confirmed that the Applicant is a member of the FDFM Chapter in New South Wales and “has displayed a sense of loyalty and dedication of the highest order to the cause and pursuit of the objectives of the movement.”
Mr Prince submitted that these documents suggested that the witnesses had relevant evidence in support of the Applicant’s claims.
The Applicant’s claims to fear persecution for a Convention reason related to a claim that his name had been placed on a “black list” because of his association with former democratic political parties, politicians, members of the Counter Revolutionary Warfare (“CRW”) unit and former Prime Minister Rabuka. He claimed to fear persecution for his political opinion and his work as a journalist. The Applicant claimed that he feared being mistreated by Commodore Bainimarama if he was to return to Fiji.
The Applicant also claimed that he was stopped from departing from Nadi in March 2010 and had to get his cousin in the military to convince a Magistrate to let him leave despite his name being on a “black list”. The Applicant claimed that his name was also on the 2000 coup list because he was an eye witness to the military mutiny in 2000.
The Applicant claimed that as a journalist, he covered a lot of issues after the 1987 coup, including the death of Dr Bavadra and the political events that followed. He claimed that he also did sports coverage and interviewed the coup leader Mr Rabuka.
The Applicant also claimed that he had taken part in the Sunday ban protest march in Suva in the 1990’s and was later sent to cover the Taukei Movement march led by Apisai Tora. The Applicant claimed that fellow journalists had been taken by the military, threatened and abused under the Bainimarama regime.
The Applicant attended an interview with a delegate of the first respondent on 16 June 2011, at which he said that he last worked as a journalist in 2005, although has done some freelance journaling for a Christian youth magazine. The Applicant said that in 2000 he went to Parliament House, following the Speight coup, because he was sympathetic to those Members of Parliament being held by Speight and he was not a Speight supporter. The Applicant said that he had interviewed Mr Rabuka three times, most recently in December 2009. The Applicant said that he feared persecution because of his known association with former members of the CRW.
The Applicant also said that he had delayed lodging a protection visa application because he had been told to do so by a friend with whom he attended church at Swan Hill.
The Tribunal gave detailed summaries of its various exchanges with the Applicant at the hearing and concerns that it put to the Applicant about his evidence, noting the Applicant’s responses.
In relation to the applicants’ request to hear from the witnesses at the outset of the Findings and Reasons section of its decision record, the Tribunal said as follows:
“The applicants appeared before the Tribunal on 30 September 2011 to give evidence and present arguments. The first named applicant (who, for the sake of convenience, will be called ‘the applicant’) requested the Tribunal to take evidence on his behalf from the Secretary of the Fiji Democracy and Freedom Movement and from the publisher of the National Australia Fiji Times who had agreed to publish the applicant’s book. Both were present at the hearing. The Tribunal did not consider it necessary to take evidence from them.”
The Tribunal identified with great specificity the country information to which it had regard.
The Tribunal accepted that the Applicant was a journalist, although noted he had not been employed as such since March 2005. The Tribunal also accepted that the Applicant had been writing a book, yet to be published, dealing with the Fiji coup. The Tribunal also accepted that the Applicant had joined the FDFM since his arrival in Australia.
The Tribunal found that because the Applicant has not been employed as a journalist in Fiji for sometime, it was unlikely that he would be of interest to the authorities in a way that a journalist in Fiji who was reporting on matters might be. The Tribunal also noted that the examples of the materials in support of the Applicant’s journalism career in Fiji were largely related to the area of sports. The Tribunal found that journalism of that kind would not expose the applicant to a real chance of persecution or serious harm.
The Applicant claimed that he was stopped by the authorities when attempting to leave Fiji in March 2010 and that he had to get an order of a Magistrate to leave. However, the Tribunal found that the impediment to him leaving was due to a family law proceeding, rather than any travel restrictions imposed by the Bainimarama regime.
In relation to the Applicant’s claim to be on a list of supporters of Speight’s group, the Tribunal accepted that the applicant’s name is on the list. However, the Tribunal found that the list was very old and “most unlikely to have any currency”, that the Applicant had said that he was not a supporter of Speight and had explained how his name may have been put on that list.
In relation to the Applicant’s claim to fear harm because of his perceived links with former members of the CRW, the Tribunal found those links to be “very tenuous indeed on the evidence before the Tribunal”.
The Tribunal was not persuaded that because he was an eye witness to the military mutiny towards Commodore Bainimarama in November 2000, the Applicant was at any risk of harm as a result.
In relation to the Applicant’s delay in leaving Fiji, the Tribunal found the Applicant’s explanation to be unconvincing.
In relation to the Applicant’s involvement in Australia in the FDFM and his authoring in Australia of a book, yet to be published, on the coup in Fiji, the Tribunal was not satisfied that the Applicant engaged in conduct in Australia otherwise than for the purpose of strengthening his claims to be refugee.

The Tribunal accepted that the Applicant had a genuine belief in freedom and democracy and that he joined the FDFM because it stood for those values. The Tribunal noted that the Applicant gave the same reason for writing a book about the coup. However, the Tribunal found that the Applicant’s express motivation for his conduct in Australia was not consistent with the motivation for his conduct in Fiji. The Tribunal stated that if the Applicant had been able to point to conduct in Fiji that demonstrated his commitment to democracy and freedom, he may have been able to satisfy the Tribunal that the same commitment motivated his conduct in Australia. However, the Tribunal was not satisfied that he had done so. Accordingly, pursuant to s.91R(3) of the Act, the Tribunal disregarded the Applicant’s conduct in Australia in joining the FDFM and writing a book concerning the coup, in considering whether the applicant has a well-founded fear of persecution in Fiji for a Convention reason.
Mr Prince submitted that the applicants’ witnesses may have been able to provide evidence about the Applicant’s political activities and his motivation for engaging in the activities. In particular, Mr Prince referred to the letter dated 27 September 2011, from the President of the FDFM stating that the Applicant “has displayed a sense of loyalty and dedication of the highest order to the cause and pursuit of the objectives of the movement”. Mr Prince submitted that the quote by the President was capable of supporting the Applicant’s motivations for being involved in the FDFM to be genuine political motivations.
Mr Prince submitted that s.426 of the Act imposes on the Tribunal a positive obligation to consider whether or not to call the witnesses requested by the applicants and that such consideration must be genuine. Mr Prince referred to s.422B(3) of the Act, which states that the Tribunal must act in a way that is fair and just. Mr Prince conceded that s.422B of the Act does not create a positive obligation on the Tribunal but that it does inform the meaning and operation of other sections of the Act.
Mr Prince submitted that the Tribunal accepted that the Applicant’s claimed activities in Fiji and did not make any adverse credibility finding in respect of the Applicant’s claims. Mr Prince submitted that the applicants had had no advisor to assist them at the hearing. Further, Mr Prince submitted that s.91R(3) of the Act should not be governed by a determination of prior motivations or actions in Fiji and there was no nexus that would allow the Tribunal to have regard to the prior activities in Fiji in considering the Applicant’s motivation for engaging in this conduct in Australia.
As stated above, counsel for the first respondent, Ms Graycar, submitted that the Tribunal’s decision record makes clear that the Tribunal had regard to the applicants’ request to hear from witnesses, but did not accede to that request.
Plainly, the Tribunal must turn its mind to the wishes of the applicants in considering whether it should take the oral evidence from the witnesses as requested. The Tribunal must take account of the relevance and potential importance to the outcome of the review of the evidence that could be given by the witnesses (see Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118 per Kenny and Lander JJ at [38]).
The Response Form requesting that the Tribunal take oral evidence from the witnesses identified the evidence and how it was relevant to the case in respect of each witness (see paragraphs [20] and [21] above).
It is difficult to see how the information about the evidence the witnesses would give was relevant and important to the applicants’ case.
There was no other evidence provided to the Tribunal by the applicants as to the nature of any other evidence that the witnesses may give beyond that identified in the Response Form.
In any event, the Tribunal accepted that the Applicant attended the FDFM committee meetings in New South Wales and that the publisher had agreed to publish his book. The Tribunal noted in its decision record that it asked the Applicant why he joined the FDFM and noted the Applicant’s response that he joined it in Australia a couple of months ago, had paid a $30 annual membership fee and had joined because it stood for freedom and democracy in Fiji, which he supported. The Tribunal accepted all that evidence from the Applicant.
In the circumstances, the Tribunal had regard to the request made by the applicants to call the witnesses referred to and, in the proper exercise of its discretion, decided not to agree to that request.
In the circumstances, the Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, the applicants’ complaint in ground 1 that the Tribunal did not act in accordance with s.426 of the Act has no, or no reasonable, prospects of success.

Ground 2

Ground 2 asserts that the Tribunal misapplied s.91R(3) of the Act in disregarding the Applicant’s conduct in Australia in circumstances where it failed to take account of a relevant consideration, being the evidence of the applicants’ witnesses about the motivation of the Applicant in relation to his conduct in Australia.
As stated above, the Applicant gave evidence that his motivation in joining the FDFM in Australia was because it stood for freedom and democracy in Fiji which he supported. The Tribunal accepted the Applicant’s explanation that he had joined because the FDFM stood for freedom and democracy in Fiji and that the Applicant was a paid up and active member of the FDFM. The Tribunal was entitled to have regard to that response in considering the Applicant’s motivation for his conduct in Australia. I am not persuaded what either of the witnesses could have said that would cast further light on the Applicant’s motivation for his conduct in Australia.
There was no evidence before the Tribunal, or this Court for that matter, of any further evidence of any attempt by the applicants to provide any evidence to the Tribunal of further evidence that either witness may have been able to give in respect of the Applicant’s motivation in joining the FDFM. In any event, the Tribunal accepted the Applicant’s evidence that he joined the FDFM because it stood for freedom and democracy. I do not understand how the letter from the President of the FDFM took that evidence any further or was capable of taking that evidence any further.
At the heart of the Tribunal’s lack of satisfaction that the Applicant had engaged in conduct in Australia other than to strengthen his claims to be a refugee, was the Tribunal’s finding that the Applicant’s conduct in Fiji was differently motivated. That finding is open to the Tribunal on the evidence and material before it and for the reasons it gave. As is clear from the summary of the Tribunal’s decision record above, the Applicant did not claim to fear harm in Fiji because he was engaged in activities that were politically motivated in standing for freedom and democracy.
However, the applicants’ complaint as expressed by Mr Prince in ground 2 is that the Tribunal failed to have regard to a relevant consideration. I am not satisfied that the applicants have demonstrated what that relevant consideration was and have not identified the nature of any evidence that may have been available to the Tribunal through the witnesses, beyond the nature of the evidence identified by the applicants in the Response Form. Further, as stated above, the Tribunal appeared to have regard to the applicants’ wishes that the Tribunal take evidence from his witnesses.
In the circumstances, it was open to the Tribunal to exercise its discretion under s.426(3) of the Act to decide to refuse the applicants’ request to take evidence from the witnesses.
In the circumstances, ground 2 has no, or no reasonable, prospects of success.
Otherwise, there is nothing on the face of the Tribunal’s decision record to suggest that the Tribunal’s decision is affected by jurisdictional error. In the circumstances, I am not satisfied that the applicants’ grounds have any, or any reasonable prospects of success, such that there would be any utility in granting leave to the applicants to extend time to bring an application to this Court for judicial review of the Tribunal’s decision.
Accordingly, the applicants’ application for an extension of time should be refused with costs.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 4 September 2012