SZRSX v Minister for Immigration - [2012] FMCA 915

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRSX v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 915

MIGRATION – Application for an extension of time for judicial review application under s.477(2) of the Migration Act 1958 (Cth).

Migration Act 1958 (Cth), ss.417, 477

SZQLD v Minister for Immigration & Anor [2011] FMCA 784

Applicant:

SZRSX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1843 of 2012

Judgment of:

Driver FM

Hearing date:

27 September 2012

Delivered at:

Sydney

Delivered on:

27 September 2012

REPRESENTATION

Solicitors for the Applicant:

Mr D Prince, amicus curiae
Kinslor Prince Lawyers

Solicitors for the Respondents:

Ms V Bulut
Clayton Utz

INTERLOCUTORY ORDERS

The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the time for the filing of the application is extended to 24 August 2012.
The matter is listed for hearing at 10.15am on 11 February 2013.
The first respondent is to file and serve on the applicant a bundle of relevant documents by 11 October 2012.
The applicant is to file and serve on the respondents any amended application and any supporting evidence by 31 October 2012.
The applicant is to file and serve on the respondents written submissions and a list of authorities not less than 14 days prior to the final hearing.
The first respondent is to file and serve on the applicant written submissions and list of authorities not less than 7 days prior to the final hearing.
Parties have liberty to apply for further directions or orders on three days’ notice.
Costs of today are costs in the cause.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1843 of 2012

SZRSX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application for an extension of time for a judicial review application filed on 24 August 2012. That judicial review application is in respect of a decision of the Refugee Review Tribunal (the Tribunal) dated 20 March 2012. When the matter came before me for first court date directions on 19 September 2012, I directed that the matter be listed today on the issue of the requested extension of time.
The applicant is from Fiji and had made claims of persecution on the basis of her membership of a particular social group. In essence, the applicant claimed that she had been the victim of repeated and serious sexual assault in the workplace and doubted that she would receive effective protection from the Fijian authorities. The Tribunal reasoned that, while it had some doubt about some aspects of the applicant’s claims, if it were true, the assaults were not persecution for a Convention reason and protection would not be refused for a Convention reason.
I have before me three affidavits by the applicant. The first was filed on 24 August 2012 with the judicial review application and annexes a number of documents, including notification of the outcome of a request for Ministerial intervention, pursuant to s.417 of the Migration Act 1958 (Cth) (the Migration Act). Also annexed is the decision of the Tribunal. The second affidavit by the applicant was filed on 24 September 2012. In that affidavit, the applicant deposed as to certain facts and circumstances concerning the review by the Tribunal. The third affidavit by the applicant, filed in court by leave today, provides further evidence specifically directed to the question of why the applicant is cross-examined on her affidavits. I have also received as an exhibit a bundle of documents tendered on behalf of the Minister relating to the Tribunal decision and the notification of it.
Both parties made written and oral submissions. I have been assisted by those submissions. As is set out in the Minister’s written submissions, there are a range of factors bearing upon the exercise of the Court’s discretion under s.477(2) of the Migration Act. Those are detailed at [14] of the Minister’s submissions. It is accepted by both parties that the first two considerations are generally the most important.
The extent of the delay in this case was a significant period. As I have noted previously, Parliament has prescribed a limitation period of 35 days from when a Tribunal decision is made for the purpose of providing some certainty in administrative decision making[1]. Applicants need to advance a proper explanation in seeking an extension of time. The applicant’s explanation in this case is that she delayed coming to court because she had sought Ministerial intervention pursuant to s.417.
[1] SZQLD v Minister for Immigration & Anor [2011] FMCA 784
That explanation has been dealt with in a number of cases in a number of ways. I dealt with it in SZQLD v Minister for Immigration & Anor[2], in particular at [20] of that decision where I said:
It does not appear on the authorities that an applicant who seeks ministerial intervention is disqualified from later seeking an extension of time to file an application for judicial review of a Tribunal decision. However, the exercise of a rational choice to pursue ministerial intervention in preference to the pursuit of a legal right of review on a question of law is not a persuasive reason for the grant of an extension of time, simply because the approach to the Minister was not successful. To put it bluntly, applicants who make a rational and informed choice are not entitled to have their cake and eat it, too.
[2] op cit
The applicant seeks to distinguish this case on the basis that she did not make an informed choice to seek Ministerial intervention.
The circumstances are that before the Tribunal the applicant nominated as her authorised recipient Mr Toufic Laba-Sarkis. It appears that Mr Laba-Sarkis also provided advice and assistance to the applicant in relation to her review application and her subsequent request for Ministerial intervention. I understand that Mr Laba-Sarkis was a migration agent some 15 years or more ago, but has not been a registered migration agent for the past 15 years. This is therefore not a case where the applicant had the benefit of advice from a registered migration agent or a legal practitioner.
The documents advanced in relation to the request for Ministerial intervention prepared by Mr Laba-Sarks indicate that the request was a very modestly argued one. I do not have evidence of precisely what advice Mr Laba-Sarkis may have given the applicant about her rights. I accept that, at least in a formal sense, the applicant was aware of her entitlement to make application to the Court and of the time limitation.
I do not have confidence, however, that the applicant, who it appears placed trust and confidence in Mr Laba-Sarkis, had any real understanding that, by electing to pursue Ministerial intervention, she may be giving up an entitlement to make application to the Court. I accept that, on that basis, the case can be distinguished from SZQLD and other cases in a similar vein. This was not a case of the applicant wanting her cake and eating it too. If the s.417 application was the cake, it was barely worth eating.
I accept that, in the circumstances of this case, where the applicant has acted promptly following notification of the outcome of her request for Ministerial intervention, the applicant has adequately explained the delay in coming to Court.
The question then is whether there is any merit in the judicial review application. The grounds advanced in that application do not give much confidence in that regard. Also, there is limited material currently before the Court that might support a proper assessment of the legal issues.
However, there is at least one issue of potential significance. It appears, from the Tribunal decision, that the protection visa application lodged with the Minister’s Department included both the applicant and her ex-husband, from whom the applicant had been divorced. At [26] of its reasons, the Tribunal records that on 30 September 2011 the Minister’s Department wrote to the applicant’s former husband, stating that he had been assessed as not being a member of the family unit of the applicant, because he was no longer the spouse and member of the family unit of the applicant since their marriage had been dissolved finally on 21 April 2011. He was advised that he could lodge his own claim for protection. At [28] of its reasons, the Tribunal records that a letter was sent to the Department and received on 13 March 2012 alleging that the applicant and her ex-husband had given false statements to the Department about their circumstances and were in fact living together at an address in Busby. The informant apparently sought confidentiality.
At the Tribunal hearing, the Tribunal apparently made some mention of the letter. At [40] of the Tribunal’s reasons, the Tribunal records that the applicant was advised at the hearing that a letter had been received by the Department making allegations about the circumstances of herself and her husband. The writer of the letter wished to remain confidential. The Tribunal explained that it would give no weight to the allegations. It would make its decision on the basis of the evidence that the applicant had given in writing and orally. In its findings and reasons, the Tribunal stated that it had had no regard to the letter in coming to its conclusions. A potential issue is whether the Tribunal erred in the way it dealt with the confidential communication. It appears that there may have been substance in the letter in that the applicant informed the Tribunal that she no longer feared her husband, despite the fact that he had abused her during the course of the marriage, and she made no claims against him.
The applicant also provided an updated residential address which was the same as that nominated in the confidential letter. The circumstances give rise to an inference that the applicant may indeed have reconciled with her former husband and be once again living with him. That raises the question of whether the Department erred in excluding the applicant’s ex-husband from the protection visa application.
As the Tribunal became aware of that issue prior to making its decision, there is the question of whether the Tribunal should have acted in a different way in dealing with the review in the light of the letter. That question might be framed in terms of jurisdictional error. I conclude that, on the limited material before the Court, there is sufficient to satisfy me that there is a serious issue to address in the proceedings.
I conclude, therefore, that, in the interests of an administration of justice, I should grant an extension of time for the judicial review application to 24 August 2012, and I will so order.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 28 September 2012