SZRTO v Minister for Immigration - [2012] FMCA 902

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRTO v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 902

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), s.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

Applicant:

SZRTO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1913 of 2012

Judgment of:

Emmett FM

Hearing date:

20 September 2012

Date of Last Submission:

20 September 2012

Delivered at:

Sydney

Delivered on:

20 September 2012

REPRESENTATION

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

Counsel for the Respondents:

Mr R Baird

Solicitors for the Respondents:

Clayton Utz

ORDERS

The applicant’s application for leave to extend time to allow him to rely on an application, filed 5 September 2012, seeking judicial review of a decision of the Refugee Review Tribunal dated 7 March 2012, is refused.
The applicant pay the costs of the first respondent fixed in the amount of $1,296.

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

NOTE B: The applicant’s affidavit, sworn and filed 5 September 2012, was read by the first respondent.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1913 of 2012

SZRTO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

This is an application by the applicant that time be extended to allow him to bring an application before this Court for a judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 7 March 2012.
Section 477 of the Migration Act 1958 (“the Act”) provides that an application for judicial review must be brought within 35 days of the date of the Tribunal’s decision. The applicant’s application for judicial review was filed on 5 September 2012, some five months after the expiration of the 35 day period. There is provision under s.477(2) of the Act that the Court, in the exercise of its discretion, can extend time to an applicant where the Court is satisfied that it is in the interests of justice to do so and the applicant had made such an application in writing. The applicant in this case has made such application in writing. An extension of time is opposed by the first respondent.
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.”
The applicant filed an affidavit in support of his application for judicial review annexing the Tribunal’s decision. There were no grounds provided by the applicant to explain the delay in filing his application for judicial review. The applicant was unrepresented before the Court this morning.
Leave was given to the applicant to give sworn evidence in order to explain the five month delay in filing his application in this Court seeking judicial review of the Tribunal’s decision. The substance of the applicant’s evidence was that he has been in Villawood Immigration Detention Centre (“Villawood”) since he received the Tribunal’s decision and that he was told by his case manager that he could approach the Minister for Immigration and Citizenship for a more favourable decision. He said that he was not told that he had an option to appeal to this Court. He then made two applications pursuant to s.417 of the Act seeking a more favourable decision to his application for a protection visa. Both requests were refused.
The applicant did not give any further evidence of any further step he took to try to find out what he could do to challenge the Tribunal’s decision. He acknowledged, in cross-examination, that fellow detainees in Villawood had told him that he could appeal to this Court, however he chose to pursue Ministerial intervention.
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).
In the circumstances, I am not satisfied that the explanation of the applicant is sufficient to explain the delay.
At the commencement of the hearing, I explained to the applicant that the two matters of significance that the Court would have regard to in considering his application for an extension of time, were the reasonableness of his explanation for his delay and whether there was any utility in extending time to the applicant. In considering the latter, I explained to the applicant that the issue for the Court is whether his substantive application for judicial review has sufficient prospects of success such that it would be in the interests of justice that time be extended to the applicant to bring his application for judicial review of the Tribunal’s decision.
The grounds identified by the applicant in his application filed on 5 September 2012 are simply:
“1. Political
2. Race”
In the affidavit annexing the Tribunal’s decision, the applicant simply stated “Some judicial error.” Plainly, none of those statements by the applicant discloses any error capable of review by this Court.
I asked the applicant what are the mistakes that the Tribunal made that go to its jurisdiction. At first, the applicant said that he could not say. I then asked him the substance of his complaints, and he said that the Tribunal had not looked at his case in full detail. I asked the applicant what it was that he says the Tribunal overlooked, and he said it was his past history and the history of his country.
I then asked him again whether was there anything further he would like to say and he said he had a fear that the Tribunal ignored, his fear of going home, that he had told the Tribunal many times that he could not go back to Nepal, and that he had sought guidance from the Department of Immigration and Citizenship.
I note the Tribunal’s decision record is some 20 pages long. At the outset, it identifies the relevant law in considering whether or not the applicant has a well-founded fear of persecution for a Convention reason. The decision record then identifies, with particularity, the claims made by the applicant in a statement provided in support of his protection visa application. The Tribunal also noted the decision of the delegate of the Department of Immigration and Citizenship to refuse the applicant a protection visa and the reasons for that refusal.
The Tribunal quoted a submission from the applicant received by the Tribunal the day before the scheduled review hearing, together with country information that was referred to in that submission. The Tribunal then identified, with great specificity, the country information to which it was referred. The Tribunal’s decision record then summarises various exchanges it had with the applicant about his evidence and matters of concern it put to the applicant, and notes the applicant’s responses.
Ultimately, the Tribunal was not satisfied that the applicant had a

well-founded fear of persecution for Convention-based reasons in circumstances where he did not lodge an application for a protection visa until after 11 years of residence in Australia. The Tribunal found that the substantial delay in the applicant lodging his protection visa application was a significant issue going to whether or not the applicant’s fear was well-founded.
The Tribunal concluded that the fact that the applicant did not do anything over 11 years suggested to the Tribunal that the applicant had no fear of persecution or of returning to Nepal, and that he had not been truthful with regard to his claims in this respect.
Those findings would appear to be open to the Tribunal on the evidence and material before it.
The applicant has not identified any error on the part of the Tribunal’s decision record that goes to its jurisdiction and none is apparent on the face of the Tribunal’s decision record.
In the circumstances, I am not satisfied that the applicant’s application for judicial review of the Tribunal’s decision has sufficient prospects of success such that it is in the interests of justice that time be extended to the applicant. Coupled with the unsatisfactory explanation given by the applicant for his delay, the applicant’s application for an extension of time should be refused with costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 25 September 2012