SZRSI v Minister for Immigration - [2012] FMCA 1032

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRSI v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1032

MIGRATION – Application to review decision of Refugee Review Tribunal – whether extension of time to make application.

Migration Act 1958 (Cth), ss.36, 417, 425, 425A, 426A, 441A, 441C, 476, 477

SZFDE and Others v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189; [2007] HCA 35
SZMNO v Minister for Immigration and Citizenship [2009] FCA 797
SZNOR v Minister for Immigration & Anor [2009] FMCA 639
SZNZU v Ministerfor Immigration & Anor [2010] FMCA 197

Applicant:

SZRSI

First Respondent:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1750 of 2012

Judgment of:

Barnes FM

Hearing date:

24 October 2012

Delivered at:

Sydney

Delivered on:

24 October 2012

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application filed on 13 August 2012 insofar as it seeks review of a decision of the Minister for Immigration and Citizenship in relation to a request by the applicant pursuant to s. 417 of the Migration Act 1958 (Cth) is dismissed as incompetent.
The application for an extension of time to apply for review of the decision of the Refugee Review Tribunal dated 11 April 2012 under s.477(2) of the Act be refused.
The applicant pay the costs of the first respondent fixed in the sum of $3,239.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYGC1750 of 2012

SZRSI

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

On 13 August 2012 the applicant filed an application in this Court seeking review of two decisions. First she seeks an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) to apply for relief in relation to a decision of the Refugee Review Tribunal (the Tribunal) made on 11 April 2012 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa, as well as review of that decision.
Secondly, the applicant seeks relief in the form of constitutional writs in relation to a decision of the first respondent, or what is described in the application as the “Ministerial Intervention team”, in relation to advice to her in a letter of 2 August 2012 that the first respondent had decided not to exercise his power under s.417 of the Migration Act to substitute a decision of the Tribunal with a more favourable decision.
The matter comes before me for determination of the issue of jurisdiction in relation to the s.417 matter and for a hearing of the applicant’s application for an extension of time under s.477 of the Migration Act.
When the matter was first before the court on 19 September 2012 the only evidence from the applicant was her initial application and an accompanying affidavit. She was given the opportunity to file and serve further affidavit evidence, in particular in relation to her application for an extension of time, and written submissions. She did not do so. She made oral submissions today.
It is convenient to deal first with the application for review of the decision of the first respondent not to exercise his power under s.417 of the Migration Act. That application is not competent. This court lacks jurisdiction in respect of that decision. Under s.476 of the Act this Court has no jurisdiction in relation to certain specified decisions, including “a privative clause decision or purported privative clause decision mentioned in subsection 474(7)” of the Act (s.476(2)(d)). Section 474(7) includes “a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under” a number of provisions, including s.417 of the Act (s.474(7)(a)).
Accordingly, insofar as the application seeks review of the decision of the first respondent in relation to a request pursuant to s.417 of the Act, it is incompetent and should be dismissed on that basis.
The application for an extension of time in relation to the decision of the Tribunal dated 11 April 2012 was not filed until 13 August 2012. Section 477(1) of the Migration Act provides that an application to this Court “in relation to a migration decision must be made to the court within 35 days of the date of the migration decision”. This application is clearly outside that period. The solicitor for the first respondent indicated that the delay was in the order of some 13 weeks. The court has power under s.477(2) of the Act to extend the 35 day period as it considers appropriate if an application for such an order has been made in writing “specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order” and the court is satisfied “that it is necessary in the interests of the administration of justice to make the order” (s.477(2)(a) and (b)).
The factors relevant to the court’s consideration of an extension of time are not confined, but have generally been said to include issues such as the length and reason for the delay, including whether there is an acceptable explanation for delay, the merits of the substantive application, any prejudice to the respondents, the impact on the applicant and the interests of the public at large. In many cases, including this one, the most relevant factors will be delay and the merits of the substantive application (see generally SZMNO v Minister for Immigration and Citizenship [2009] FCA 797, SZNOR v Minister for Immigration & Anor [2009] FMCA 639, SZNZU v Ministerfor Immigration & Anor [2010] FMCA 197).
Before turning to those factors, it is necessary to summarise the background to these proceedings. The applicant is a citizen of India who applied for a protection visa on 7 September 2011. Her claims were set out in her application. They related to a claim that the applicant had slapped a boy in front of his friends, that he was angry and embarrassed and attempted to “take revenge”, and that she would not be protected by the authorities in India because the boy’s family was rich and “very influential”. She claimed the boy had threatened her parents and told them that he would throw acid on her face.
The applicant was invited to an interview with a delegate. She was asked to contact the Department to arrange an interview. She did not do so. Her application was refused and she sought review by the Tribunal.
In her application to the Tribunal, the applicant provided the same address as her residential address and the address to which she wished correspondence to be sent. By letter of 8 March 2012 the Tribunal invited her to a hearing on 5 April 2012. The applicant did not attend the hearing.
In its reasons for decision the Tribunal recorded that the applicant did not attend the hearing, notwithstanding that the hearing invitation letter advised her that if she did not do so and a postponement was not granted the Tribunal may make a decision on her case without further notice. No response was received from the applicant. She did not appear at the hearing. She did not contact the Tribunal to explain her failure to attend. In these circumstances, pursuant to s.426A of the Migration Act, the Tribunal decided to make a decision on the review without taking further action to enable the applicant to appear before it.
In its findings and reasons, the Tribunal recorded that the only information it had before it was the “limited” information on the Department’s file. It found the applicant’s claims to be “vague and lacking in a number of significant respects”. It observed that if the applicant had appeared it would have had an opportunity to discuss her claims with her “in more detail” and to “test their veracity”.
The Tribunal specified the areas of the applicant’s claims in relation to which there was very little detail or information. On the basis of such limited information and the vagueness of the applicant’s claims it found that it was not satisfied that the applicant had slapped a boy while out with friends, that the boy was angry and embarrassed, that he was from an influential and rich family, that he had harassed her and threatened her with revenge or made threats to her parents that he would throw acid in her face, that her parents were scared of the boy, or that she would not be protected by the authorities or police as claimed.
On the evidence before it, the Tribunal was not satisfied that the applicant had suffered any Convention-related persecution in India or that there was a real chance she would suffer serious harm for a Convention reason in India in the reasonably foreseeable future. The Tribunal also considered the complementary protection provisions and the application of s.36(2)(aa) of the Migration Act. On the limited information before it and given the vagueness of the applicant’s claims, it found it did not have “substantial grounds” for believing that “as a necessary and foreseeable consequence of the applicant being removed from Australia” there was a real risk that she would suffer significant harm. The Tribunal affirmed the decision not to grant the applicant a protection visa.
On 9 May 2012 the applicant requested that the Minister intervene in her case pursuant to s.417 of the Migration Act (to which I have referred above). The applicant was notified of the negative outcome of that request in a letter of 2 August 2012. Shortly after that she commenced these proceedings.
As required under s.477(2)(a) of the Migration Act the applicant provided what may be said to be an explanation, or endeavoured to provide an explanation, for the delay in her application and in her accompanying affidavit. In her application the grounds for an extension of time were as follows:
1. I am in deep depression and unhealthy state of health and not ready to accept the fact and was loo (sic).
The first ground stops at that point. However it appears from the accompanying affidavit that this was intended to state “and was looking for further legal options”. The application continues:
2. I was arranging funds and loan from my friends for application fees, while living cost in Australia is going up every day.
3. I was sick and could not attend any public places to make submissions, an affidavit & Medical certificate attached.
As the first respondent pointed out in written submissions, no medical certificate is attached either to the application or to the accompanying affidavit.
The accompanying affidavit repeats the applicant’s claims to be sick and unable to attend public places to make submissions, although I note that she attended the directions hearing in this Court and the hearing today. She claimed she was “in deep depression and unhealthy due to neurological sickness and also looking for further legal options” and that she “need[ed] mental health support from support services” and was seeking such help.
Other than the applicant’s assertions, there is no evidence such as medical certificates, reports or financial statements to support such claims. No medical certificate was provided by the applicant with her application and affidavit and despite being given the opportunity to file further affidavit evidence, no further evidence has been provided. In these circumstances I am not satisfied that the applicant’s claims provide a satisfactory explanation for the extent of the delay.
At the start of the hearing today the applicant was given the opportunity to make oral submissions. She claimed, for the first time, that her migration agent had given her bad advice and that she needed more time to lodge another application. When asked what kind of application, she said another appeal against the Tribunal decision. In submissions in reply she claimed that her migration agent told her not to attend the Tribunal hearing and had given her what she described as “bad” advice, that she intended to complain to the Migration Agents Registration Authority and that she needed more time to prepare another application. It appears from what she said that her concern was that she was given bad advice not to attend the Tribunal hearing. However such a claim does not provide an explanation for the delay in making the present application to this Court. Insofar as it may be seen as raising a ground of review, I will consider it when I turn to the merits of the substantive application.
Insofar as the material before the Court, including the application to the Minister, might be seen as raising some suggestion that the delay was because the applicant was pursuing a s.417 application, that was not the basis on which the applicant sought to explain the delay. On the limited evidence before the Court and in the particular circumstances of this case I am not persuaded that the mere fact of such an application is, in the present circumstances, a satisfactory explanation for such a delay. That is not to say that in some particular circumstances that may not be a factor to be taken into account, but in this case it does not provide a satisfactory explanation.
In any event, even if it provides some explanation for the delay, the extent of the delay and the nature of the explanation are to be seen in light of whether there is any merit in the substantive application. If there is no merit in the substantive application, there would be no utility in granting an extension of time. In this case, I am satisfied on the material before the Court that, as the first respondent contended, there is no merit in the substantive application for review of the Tribunal decision.
As indicated, the Tribunal could not be satisfied on the limited information before it that the applicant was a person to whom Australian owed protection obligations. The applicant did not attend an interview with the Department. Nor did she attend the Tribunal hearing.
The first respondent has put evidence before the court in relation to the hearing invitation in the form of an affidavit of Julian Darcy Pinder affirmed on 17 October 2012. The hearing invitation of 8 March 2012 was sent by registered post to the applicant at the address set out in her application form as her address for correspondence. It stated the time, date and place of the hearing. It informed the applicant that if she failed to attend the hearing the Tribunal may make a decision without taking further action to allow or enable her to appear before it.
It is apparent from the affidavit of Mr Pinder that the hearing invitation letter was sent by registered post on the same day as the letter was dated to the last address for service provided to the Tribunal by the applicant. There is nothing in the material before the Court and nor is there any suggestion from the applicant that the first respondent failed to comply with the requirements of ss.425 or 425A of the Migration Act.
The letter was sent to the applicant in accordance with the requirements of s.441A of the Migration Act, in particular s.441A(4), including being dispatched within three working days (s.441A(4)(a)). Accordingly, she was deemed to have received it within s.441C(4) of the Act. In any event she does not take issue with receipt of the letter. There is nothing to indicate that it is even arguable that the applicant was not properly invited to a hearing before the Tribunal.
Further, there is nothing to indicate on an arguable basis that the Tribunal was not entitled to proceed to make a decision on the material before it pursuant to s.426A of the Migration Act.
Further, in view of the limited information before the Tribunal, there is nothing to suggest even arguable jurisdictional error in the Tribunal’s findings or in its failure to reach a state of satisfaction that the applicant was a person to whom Australia owed protection obligations, whether by failure to have regard to relevant considerations (as the applicant appeared to contend) or otherwise.
As indicated, in oral submissions in reply the applicant raised for the first time a claim that she failed to attend the Tribunal hearing because of advice given to her by her migration agent which she characterised as “bad” advice. She has not, despite having been given the opportunity to do so, sought to put any evidence before the Court to support even an arguable claim of fraud of a migration agent in the sense considered in SZFDE and Others v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189; [2007] HCA 35. Her description of advice as bad advice is not such as to raise an arguable case of conduct that might be seen as giving rise to any arguable jurisdictional error.
In these circumstances there would be no utility in granting an extension of time. That is so notwithstanding that there cannot be said to be any prejudice to the respondents if an extension of time were to be granted. I have borne in mind the impact on the applicant were she to return to India in circumstances where she does not have a well-founded fear of persecution or significant harm. I have also borne in mind the interest of the public at large and the need for prompt and effective resolution of migration applications. In all the circumstances, I am not satisfied that it is necessary in the interests of the administration of justice that an extension of time be granted to allow the applicant to seek review of the decision of the Tribunal. The application for an extension of time should be refused. Before I make the formal orders I will hear submissions in relation to costs.

RECORDED: NOT TRANSCRIBED

The applicant has been unsuccessful and the first respondent seeks costs in the sum of $3,239, being the amount provided for in the Schedule to the Federal Magistrates Court Rules for matters determined in an interlocutory hearing. The applicant indicated that she was unable to pay costs at present because she was unemployed. Her lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the first respondent in determining when and how to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 9 November 2012