SZRTI v Minister for Immigration

[2012] FMCA 886

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRTI v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 886

MIGRATION – Review of decision by Refugee Review Tribunal – whether time should be extended to applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time – application for extension of time refused.

Migration Act 1958 (Cth), ss.65, 426A, 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
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

Applicant: SZRTI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1896 of 2012

Judgment of: Emmett FM

Hearing date: 18 September 2012

Date of Last Submission: 18 September 2012

Delivered at: Sydney

Delivered on: 18 September 2012

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter in the Punjabi language.

Appearing for the Respondents: Ms B Rayment

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The applicant’s application for leave to extend time to allow her to rely on an application, filed 31 August 2012, seeking judicial review of a decision of the Refugee Review Tribunal dated 18 April 2012, is refused.

2. The applicant pay the costs of the first respondent fixed in the amount of $1,296.

NOTE: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1896 of 2012

SZRTI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) brought by the applicant in circumstances where her application for judicial review, filed 31 August 2012, was filed more than 35 days from the date of the decision sought to be reviewed. Section 477 of the Act is as follows:

   “Time limits on applications to the Federal Magistrates Court

   (1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2)  The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:

   (a)  an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)  the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3)  In this section:

   ‘date of the migration decision’ means:

   (a)  in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 --the date of the written decision under that subsection; or

   (b)  in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the written statement under subsection 368(1) or 430(1); or

   (c)  in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the oral decision; or

   (d)  in any other case--the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

   (4)  For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

   (5)  To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”

2. The Refugee Review Tribunal (“the Tribunal”) decision is dated 18 April 2012. In the circumstances, the applicant’s application for a judicial review to this Court is in the order of 100 days in excess of the 35 day time limit provided for in s.477(1) of the Act.

3. However, pursuant to s.477(2) of the Act, this Court may extend the 35 day period if an application for that order is made in writing to the Court specifying why the applicant considers it is necessary in the interests of justice to make the order, and the Court is satisfied that it is necessary in the interests of justice to make the order extending the time period. The applicant has made such an application in writing.

4. In the applicant’s application for judicial review filed 31 August 2012, the applicant identified the grounds of her application for an extension of time as follows:

   “1. I am in deep depression and unhealthy state of health and not ready to accept the fact and was looking other legal options.

   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 attached.”

5. The applicant also filed an affidavit on 31 August 2012 annexing the Tribunal’s decision record and stating the following in relation to her health:

   “1. I am sick and can not attend any public spaces to make submissions. I am in deep depression and unhealthy due to neurological sickness and also looking for further legal options.

   2. I need mental health support from support services and I am seeking this help.”

6. The applicant was unrepresented this morning, although had the assistance of an interpreter.  Her application for an extension of time was opposed by the first respondent. 

7. The applicant sought and was given leave to give further sworn evidence to explain why her application for judicial review was not filed within 35 days of the date of the Tribunal’s decision. 

8. The substance of the applicant’s evidence was that she had seen a lawyer who had told her that she had the option of seeking judicial review in this Court in respect of the Tribunal’s decision or, writing to the Minister to seek a more favourable outcome pursuant to s.417 of the Act.

9. Attached to the applicant’s affidavit, filed 31 August 2012, is a copy of a letter from the Department of Immigration and Citizenship, dated 15 August 2012, referring to the applicant’s request that the Minister substitute the decision of the Tribunal with a more favourable decision. The letter notified the applicant that the Minister had personally considered her case but had decided that it would not be in the public interest to intervene and, therefore, declined to exercise the power under s.417 of the Act in the applicant’s case.

10. It is well established that a decision to pursue ministerial intervention indicates an acceptance of the Tribunal’s decision (see M211 of 2003 v Refugee Review Tribunaland Another (2004) 212 ALR 520 at [24] and [36] per Black CJ, Sackville and Sundberg JJ; Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198 at [14] per Goldberg J).

11. In the circumstances, the applicant’s explanation provided to this Court for her delay in respect of her election to pursue ministerial intervention is not a satisfactory explanation of her delay. 

12. To the extent that the applicant asserted in her application and affidavit that she had medical conditions that were a reason why she was unable to pursue her application for judicial review within 35 days, there is no evidence before the Court of any medical conditions suffered by the applicant that may have affected her ability to seek judicial review within 35 days of the date of the Tribunal decision.

13. To the extent that the applicant said she was arranging funds and loans from her friends for application fees, again, such an explanation is unsatisfactory to explain the 100 day delay in filing an application for judicial review of the Tribunal’s decision. In my view, a 100 day delay is a significant delay in circumstances where the time limit is expressed to be 35 days.

14. I further have regard to the grounds of the applicant’s substantive application upon which she relies in establishing jurisdictional error on behalf of the Tribunal. Those grounds are as follows:

    “1. The RRT & Ministerial Intervention team made error in denying the my application for Protection visa Subclass 866 in failing to consider all the facts and the law related to the my application particularly; that my claims are not substantial and grounds are week [sic] I had permanent loss in my family and suffered emotional setback. My father passed away as I was very much attached with him since my childhood, I was very sick for six months, I was also going thru [sic] the hardships to support my mother and other family members after the incident, my sister marriage was part of family function and as per Sikh traditions, I play important role, my attention was continuously diverted. The authorities DIAC, RRT & Ministerial Intervention Team failed to see the personal circumstances. I have been denied justice, subsequently DIAC, RRT & Ministerial Intervention Team failed to endorse the same.”

15. Those grounds are wholly unparticularised and were unsupported by any relevant submission by the applicant this morning. 

16. I agree with the submission of the solicitor of the first respondent, Ms Rayment, that those grounds are more in the nature of a disagreement with the findings and conclusions of the Tribunal thereby inviting merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

17. I note that the Tribunal’s decision record, annexed to the applicant’s affidavit, filed 31 August 2012, discloses that the applicant was invited but failed to attend an interview with the delegate of the first respondent (“the Delegate”) and was invited but failed to attend the Tribunal hearing. The Tribunal’s decision record noted that there was no further information provided to it in respect of the applicant’s review application of the Delegate’s decision.

18. The Tribunal noted that the Delegate had refused the applicant’s protection visa application because it found that the applicant had not established a nexus between any Convention ground and the harm she feared, nor substantiated her claims. The Tribunal noted that the Delegate found the applicant’s fear of persecution was not well-founded.

19. The Tribunal set out the applicant’s written claims in its decision record. The Tribunal noted that on 7 March 2012, it wrote to the applicant advising the applicant that it had considered all the material before it relating to her application but was unable to make a favourable decision on that information alone. The Tribunal’s letter invited the applicant to give oral evidence and present arguments at a hearing on 17 April 2012 and informed the applicant that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice. 

20. The Tribunal stated that the letter was sent by registered post to the applicant’s address for correspondence. 

21. The applicant agreed in Court this morning that, in fact, she did receive that letter and there is no complaint made about a failure of the Tribunal to comply with its obligation to invite the applicant to a hearing pursuant to s.425 of the Act.

22. The Tribunal noted that the applicant did not respond to the hearing invitation and did not appear before the Tribunal on the day and at the time and place at which the hearing was scheduled. The Tribunal also noted that, as at 18 April 2012, the applicant had not made contact with the Tribunal to explain her failure to appear, or for any other reason.  The Tribunal also noted that its letters to the applicant, dated 20 December 2011 and 7 March 2012, had not been returned to the Tribunal as at 18 April 2012. 

23. In the circumstances, the Tribunal exercised its discretion pursuant to s.426A of the Act to proceed to make its decision on the material available to it without taking any further action to enable the applicant to appear before it. There is nothing on the face of the Tribunal’s decision record to suggest that the exercise of its discretion to proceed was exercised other than in accordance with s.426A of the Act.

24. In considering the applicant’s claims, which the Tribunal summarised in the findings and reasons section of its decision record, the Tribunal noted that the applicant had been given an opportunity to present her case. The Tribunal found the applicant’s claims to be vague and unsubstantiated and identified various deficiencies in the information before it.

25. The Tribunal accepted that the applicant is an Indian national, however, was not satisfied that the applicant had suffered discrimination as claimed or that she had a genuine fear of harm for a Convention reason. 

26. In the circumstances, the Tribunal was not satisfied that the applicant has a well-founded fear of persecution for a Convention reason now or in the reasonably foreseeable future if the applicant was to return to India. The Tribunal also noted that it was unable to be satisfied that there are substantial grounds for believing that there is a real risk that the applicant would suffer significant harm if she returned to India. 

27. Accordingly, the Tribunal affirmed the decision under review.

28. As stated above, the complaints made by the applicant in relation to the Tribunal’s decision are wholly unparticularised and are no more than bare assertions. 

29. It is for the applicant to satisfy the Tribunal that she meets the criteria for being a refugee. Section 65 of the Act mandates that, if the applicant fails to satisfy the decision-maker, in this case the Tribunal, that she does not meet the criteria for being a refugee, then the decision-maker must refuse her a protection visa.

30. There is no error that is apparent on the face of the Tribunal’s decision record that would appear to go its jurisdiction and the applicant has been unable to identify any such error.

31. In the circumstances, I am satisfied that the applicant’s substantive application for judicial review of the Tribunal’s decision has insufficient prospects of success such that it would be in the interests of justice to extend time to the applicant. 

32. Following the conclusion of the solicitor for the first respondent’s submissions, I invited the applicant to say anything she wished in response to anything that she had heard from the solicitor for the first respondent or in support of her application generally. The applicant then said that she needed more time to get more evidence from India and to obtain legal advice. On the applicant’s own evidence, she has had the advice of a lawyer since the Tribunal decision was handed down. 

33. I asked the applicant on more than one occasion, what was the evidence that she wished to obtain from India. The applicant was unable to identify any particular evidence other than to say that only her mother was on her side and that her other family members were against her, and that her case relates to a social group.

34. In the circumstances, the applicant has not, in my view, established that there would be any utility in adjourning the proceeding to give the applicant a further opportunity to obtain evidence. Accordingly, the adjournment application was refused. 

35. In circumstances where the applicant has failed to provide a satisfactory explanation for her delay and has failed to satisfy the Court that her application has any, or any reasonable, prospects of success such that it would be in the interests of justice to extend time, the applicant’s application for an extension of time should be refused with costs. 

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date:  20 September 2012