SZRSL v Minister for Immigration - [2012] FMCA 1102

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRSL v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1102

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

Migration Act 1958 (Cth), ss.36, 417, 424, 424A, 476, 477

SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
SZMNO v Minister for Immigration and Citizenship [2009] FCA 797
SZNOR v Minister for Immigration & Anor [2009] FMCA 639
SZNZU v Minister for Immigration & Anor [2010] FMCA 197
SZOCH v Minister for Immigration & Anor [2010] FMCA 300

Applicant:

SZRSL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1784 of 2012

Judgment of:

Barnes FM

Hearing date:

31 October 2012

Delivered at:

Sydney

Delivered on:

31 October 2012

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application filed on 17 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 a decision of the Refugee Review Tribunal 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

SYG 1784 of 2012

SZRSL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

On 17 August 2012 the applicant filed an application in this Court seeking review of two decisions. First, review was sought in relation to a decision of the first respondent under or in relation to s.417 of the Migration Act 1958 (Cth), being a decision not to exercise his power under that section to substitute a more favourable decision for a decision of the Refugee Review Tribunal. This decision was notified to the applicant by letter dated 19 July 2012. Secondly, the applicant seeks review of a decision of the Tribunal dated 5 April 2012 affirming the decision of a delegate of the first respondent not to grant the applicant a protection visa.
In order to proceed with the latter application the applicant seeks an extension of time to make the application under s.477 of the Migration Act. The matter is before the Court to determine the application for an extension of time as a preliminary matter and also to address an application in a case filed by the first respondent on 25 September 2012 seeking that the application be dismissed as incompetent insofar as it seeks review of the decision of the first respondent in relation to the s.417 request. The parties filed written submissions and had the opportunity to make oral submissions.
It is convenient to consider the first respondent’s application in a case first. Section 476 of the Migration Act deals with the jurisdiction of this Court. Relevantly, s.476(2) provides that this Court has no jurisdiction in relation to certain specified decisions, including a privative clause decision or purported privative clause decision. Pursuant to s.474(7) of the Act, a decision of the Minister not to exercise the power under s.417 of the Act is a privative clause decision. It is clear that this Court has no jurisdiction in relation to the application to review the decision of the Minister.
The applicant’s written submissions did not address the Court’s jurisdiction, but rather took issue with what might be seen as the merits of the Minister’s decision and other aspects of concern to her about the circumstances of that decision. However this Court does not have jurisdiction in relation to that decision. That part of the application should be dismissed as incompetent.
In relation to the decision of the Tribunal, under s.477(1) of the Migration Act the application for judicial review must be made within 35 days of the date of the Tribunal decision. The Tribunal decision was dated 5 April 2012. The application to this Court was not made until 17 August 2012. As pointed out in submissions for the first respondent, the applicant requires an extension of time of approximately 14 weeks. That is a not insubstantial period. The Court has power under s.477(2) of the Migration Act to extend the 35 day period as it considers appropriate if satisfied that it is necessary to do so in the interests of the administration of justice. The application specifies in writing why the applicant considers it is necessary in the interests of administration of justice to grant an extension of time as follows:
S417 has been appealed to Minister and waiting result.
It is not entirely clear what “appeal” this is intended to refer to. As set out above, the outcome of the applicant’s request for Ministerial intervention was notified to her by letter of 19 July 2012, before the application of 17 August 2012. The affidavit accompanying the application does not elaborate.
The factors relevant to the Court’s consideration of whether it is necessary in the interests of the administration of justice to grant an extension of time are unconfined. However, of significance in a case such as the present are the length and reasons for the delay in commencing these proceedings, including whether there is an acceptable explanation for the delay. In addition, the merits of the substantive application are of significance. It is also relevant to have regard to issues such as any prejudice to the respondents, the impact on the applicant and the interests of the public at large (see SZMNO v Minister for Immigration and Citizenship [2009] FCA 797; SZNOR v Minister for Immigration & Anor [2009] FMCA 639; SZMFJ v Minister for Immigration & Anor [2009] FMCA 771; and SZNZU v Minister for Immigration & Anor [2010] FMCA 197).
In this case the only explanation for the delay appears to relate to the application for Ministerial intervention. I note in that respect that the letter acknowledging the s.417 application advised the applicant that she should not discontinue any application for judicial review in the expectation that the Minister would intervene and that the Minister was under no obligation to intervene in her case. Although the applicant did not have a judicial review application on foot in this Court at that time, she was clearly alerted to the fact that the Minister was under no obligation to intervene.
Furthermore, the applicant was advised that the Minister had decided not to exercise his power under s.417 of the Migration Act on 19 July 2012. She did not commence these proceedings until 17 August 2012 and has provided no explanation for the intervening period.
In the particular circumstances of this case on the evidence before the Court I am not satisfied that the applicant has provided a satisfactory or adequate explanation for the delay in question (see SZOCH v Minister for Immigration & Anor [2010] FMCA 300). Furthermore, even if the application for Ministerial intervention were to be seen as a partial explanation for the delay, it is relevant that there is no merit in the substantive application.
I have had regard not only to the initiating application, but also to the proposed amended application annexed to the applicant’s written submissions. In order to address the merit in the substantive application it is necessary to have regard to the applicant’s claims and the Tribunal decision.
The applicant is a citizen of Japan who first arrived in Australia in 2000 as the holder of a student visa. She has departed and returned several times since that date and most recently returned to Australia in December 2009. She applied for a protection visa in September 2011.
The applicant claimed to fear returning to Japan on the basis that she came from a prefecture or district which was a “Radiation affected area”. She claimed that since 11 March 2011 the situation in Japan had changed and that she would face “a humanitarian challenge situation” if she returned to Japan. She detailed her concerns under the heading “Earthquake, Tsunami and Nuclear Radiation” and elaborated on the effect of radiation. The applicant acknowledged that, according to UNHCR, an economic refugee was not a refugee within the Refugees Convention, but claimed that her circumstances were so “compelling” it was “in the public interest” to grant her a protection visa. She also claimed she would not receive assistance from the Japanese government.
The applicant attended an interview with the delegate who pointed out to her that it appeared that her claims lacked a Convention nexus. The applicant then claimed that she was discriminated against in her job in Japan because she was female.
The only evidence before the Court as to what occurred in the Tribunal hearing is the Tribunal account in its reasons for decision. According to the Tribunal the applicant continued to rely on her claim that she was unable to return to her home in Japan following the tsunami, in particular that she would have nowhere to live or that her accommodation would be affected by nuclear radiation.
The Tribunal was not satisfied that the evidence of the applicant about her discrimination in employment claim reached the level of persecution in a Convention sense or of significant harm as required by the complementary protection provisions of the Migration Act. It observed that she had not raised this issue at the Tribunal hearing as a reason for a fear of returning to Japan. On the evidence before it the Tribunal found that if the applicant were to return to Japan she would not be required to live in an area which might be harmful to her.
Insofar as the applicant claimed economic hardship, the Tribunal found that there was no evidence that her “capacity to subsist” was threatened or that she would be denied access to basic services. It also found that there was no Convention reason for her economic situation. On the evidence before it the Tribunal was not satisfied that there was a real chance that the applicant would face Convention-based persecution if she returned to Japan in the foreseeable future. Nor did the Tribunal accept that the harm the applicant claim to fear was “significant harm” within the definition in s.36(2A) of the Migration Act.
On the evidence before it the Tribunal was not satisfied that it had substantial grounds for believing there was a real risk that the applicant would suffer significant harm if she returned to Japan. The Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.
In her original application the applicant claimed that the Tribunal decision was affected by jurisdictional error and that the Tribunal had failed to complete the exercise of its jurisdiction because it did not address the totality of her claims. In the amended application she reiterated that the Tribunal failed to complete the exercise of its jurisdiction and claimed that “the decision led to the omission of principles of natural justice”.
The proposed amended application is somewhat confusingly set up but it appears that the applicant’s claims are intended to be particularised as follows:
Particulars: 1
(a) The Tribunal rejected my claim on the basis that the natural disaster evidences were not presented to it in support of my claim which led the Tribunal to conclude that failure to be an adverse credibility finding limiting the meaning of s424 in contravention to the Article 1A(2) of the Convention thus the Tribunal declaring that the credibility factor lies in providing the material evidences in support.
(b) The RRT failed to satisfy itself upon whether the applicants had a well founded fear of persecution based upon probative material or logical grounds:
Particulars:
The situation of the Radiation Refugees was not taken into account in spite of the independent International protection law country information report,
(c) The RRT failed to make findings on all the applicants’ claims.
Particulars:
The RRT may freshly refer to or reconsider the material placed before it by the applicants including International protection law report.
In light of unfavourable and hostile situation, I fear for the safety of my life.
The particulars are somewhat lacking in clarity. Insofar as there is a reference to s.424 of the Migration Act, that section empowers the Tribunal to get any information it considers relevant. It must have regard to that information. It is not apparent how there is an alleged jurisdictional error in that respect in this case.
Insofar as this is intended to be a suggestion that s.424A of the Migration Act was breached, there is nothing in the material before the Court to indicate that there was any information subject to the obligation in s.424A(1). Having regard to the exception for country information in s.424A(3)(a) of the Act, no arguable breach of that section is apparent. Moreover, the Tribunal did not reject the applicant’s claim on the basis that natural disaster evidence was not presented to it.
The applicant’s claims in this respect do not reveal an arguable jurisdictional error on any of the bases contended for in her application or amended application. Insofar as the applicant contends that the Tribunal failed to make findings on all her claims, there is nothing in the material before the Court to suggest that such a contention is even arguable. The Tribunal considered the applicant’s claims to have a well-founded fear of persecution. It also considered the application of the complementary protection provisions of the Migration Act.
To the extent that the applicant seeks merits review, merits review is not available in this Court. The applicant also contended that the Tribunal failed to satisfy itself whether she had a well-founded fear of persecution based upon probative material or logical grounds. The particulars to this aspect of the ground suggest that the situation of “Radiation Refugees” was not taken into account in spite of particular country information.
Insofar as the applicant takes issue with the Tribunal’s use of independent country information, it is well-established that the selection and weight to be given to items of independent country information is a matter for the Tribunal. The Tribunal described the applicant’s claims and referred to information to which she had referred in general terms. However, as set out above, it found that the applicant would not be required to live in an area of Japan that might be harmful to her, that there was no evidence that her capacity to subsist was threatened or that she would be denied access to basic services, and that there was no Convention reason for her economic situation.
In these circumstances the applicant’s reiteration of her claims and references to information about radiation and other aspects of the situation in Japan in her written submissions seek merits review and do not give rise to any suggestion of an arguable jurisdictional error on the part of the Tribunal.
In addition to the absence of merit in the substantive application, I have had regard to the impact on the applicant were she to return to Japan although she has been determined not to have a well-founded fear of persecution or to face a real risk of harm. I have also had regard to the need for prompt and effective resolution of migration applications.
On the material before the Court I am not satisfied that is necessary in the interests of the administration of justice to grant an extension of time under s.477 of the Migration Act. It is appropriate to make orders in the form sought by the first respondent. Before I do so I will hear submissions in relations to costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 22 November 2012