SZRXU v Minister for Immigration - [2012] FMCA 1173

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRXU v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1173

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. 66; 477
Migration Regulations 1994 (Cth), reg 216

SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27 .
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:

SZRXU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2239 of 2012

Judgment of:

Emmett FM

Hearing date:

5 December 2012

Date of Last Submission:

5 December 2012

Delivered at:

Sydney

Delivered on:

5 December 2012

REPRESENTATION

Applicant appeared in person with a Mandarin interpreter

Solicitors for the Respondent:

Ms Warner-Knight (AGS)

ORDERS

The applicant’s application that time be extended to seek judicial review of a decision of the Refugee Review Tribunal, dated 3 October 2007, is refused.
The applicant pay the costs of the first respondent fixed in the amount of $1,296.
No order be entered until my reasons for judgment are settled.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2239 of 2012

SZRXU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is the applicant’s application for an extension of time, pursuant to section 477 of the Migration Act. The application is brought pursuant to section 477, which provides that relevantly the Court may extend the 35 day period from the date of the Refugee Review Tribunal decision if it is in the interests of justice to do so. Section 477 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 Refugee Review Tribunal’s (“the Tribunal”) decision is dated 3 October 2007. The applicant’s application for judicial review was lodged on 10 October 2012, almost five years out of time. In the circumstances the applicant’s application for judicial review of this Court is well outside the time limit provided in section 477(1) of the Act.
In considering whether it is in the interests of justice to extend time to the applicant, the Court informed the applicant that the two critical issues to which the Court would have regard. The first is the applicant’s explanation for her delay. The second is whether her application for judicial review has sufficient prospects of success, such that it would be in the interests of justice to extend time.
The applicant was unrepresented, although had the assistance of an interpreter. Her application for an extension of time was opposed by the first respondent.
The applicant sought leave to give further sworn evidence to explain her delay. Her evidence as to when she became aware of the Tribunal’s decision was most unsatisfactory. Her evidence was inconsistent and at times unresponsive.
The substance of her evidence was that it was not until she was detained at Villawood that she found out that she could lodge an appeal to this Court in respect of the Tribunal’s decision. But up until that time she did not know that she could do so. She did not have a lawyer and she would not be able to pay a fee.
The applicant was taken into detention on 7 July 2011 and on 2 December 2011 wrote a letter to the Minister seeking his intervention pursuant to section 417 of the Act. That letter was part of the bundle of relevant documents tendered by the first respondent and marked Exhibit 1R. That letter disclosed that, at least, as at 2 November 2011 the applicant was aware that the deadline for an appeal from the Tribunal’s decision had passed.
In cross‑examination the applicant agreed that she had sent an earlier letter seeking ministerial intervention in 2008. I find it difficult to accept that she took that step other than in the knowledge that her application for review to the Tribunal had been unsuccessful. In any event, even accepting the later date of 2 November 2011 there has been a substantial delay by the applicant in seeking judicial review.
It was put to the applicant that following the Minister’s refusal to intervene in 2008, the applicant took no step and made no attempt to regularise her status within Australia. The applicant had no satisfactory response, other than to say she did not know what to do and she had no one to help her. That evidence is somewhat inconsistent with her evidence that she has had a boyfriend for some years, that she attends a church group in Sydney. In the circumstances, I am satisfied that she had access to community support and information.
In any event, I am satisfied that the applicant took no step to regularise her status until she was detained in 2011. Thereafter she took two further steps. The first was to seek further ministerial intervention. The second was to participate in High Court proceedings which she ultimately discontinued.
In cross‑examination the applicant conceded that she had not sought to seek judicial review or appeal to this Court in respect of the Tribunal’s decision, because she had decided to pursue the High Court litigation.
In any event, even if I was to accept the applicant’s evidence at face value that she did not know about her rights until November 2011, I find her explanation unsatisfactory.
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).
I now turn to consider whether the grounds of the applicant’s application for judicial review have sufficient prospects of success that it would be in the interests of justice to extend time to allow her to seek judicial review of the Tribunal’s decision on those grounds. The grounds are as follows:
1. The Department of Immigration and Citizenship did not notify me of the refusal of my protection visa application causing me to be out of time to apply for review to the Refugee Review Tribunal.
2. As the Department failed to notify me of its refusal decision then there was no decision at all.
3. The Refugee Review Tribunal made an SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27 error in failing to notify me of its no jurisdiction decision and therefore did not notify me of its decision until 14 April 2012.
4. I have been wrongfully detained on two occasions.
Those grounds were interpreted for the applicant’s assistance and she was invited to say whatever she wished in support of those grounds. The applicant maintained her complaint that she had not received notification of the decision of the delegate to refuse her protection visa.
The grounds in her application maintain that assertion and refer to SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27 (“SZJDS”)as an analogous situation to that of the applicant. I am not satisfied that the applicant’s situation was analogous to that of the applicant in SZJDS. In SZJDS, the applicant had not completed regularly an application for review of the delegate’s decision. In the case before this Court, there was nothing irregular on the face of the applicant’s application for review of the delegate’s decision.
The Tribunal decision comprehensively records the legislative regime for notifying an applicant of its decision. Exhibit 1 contains the applicant’s application for a protection visa and the Department’s notification to the applicant of the delegate’s decision. There is nothing on the face of the notification to the applicant to suggest that it was sent other than in accordance with that statutory regime. I note that the Tribunal was also satisfied that notification had been provided to the applicant in accordance with that scheme.
Section 66(1) of the Act and regulation 216 of the Migration Regulations 1994 (Cth) provides that an application for judicial review must be lodged within 28 days of receipt of notification of the delegate’s decision. The notification letter to the applicant was dated 23 June 2007. The applicant’s application for review of that decision was lodged with the Refugee Review Tribunal on 27 August 2007.
In the circumstances, I am satisfied that the application for review was lodged more than 28 days after the day on which the applicant received notification of the delegate’s decision. There is no provision in the Migration Act that allows a tribunal to extend time to an applicant to review a decision of a delegate of the minister that is lodged out of time.
In the circumstances the Tribunal’s conclusion that it had no jurisdiction to conduct a review of the delegate’s decision would appear to be correct.
Accordingly, the grounds of the applicant’s application for judicial review of the Tribunal’s decision would appear to have no, or, no reasonable prospects of success. In any event, I am satisfied that the grounds do not have sufficient prospects of success such that it would be in the interests of justice that time be extended to the applicant to allow her to seek judicial review of the Tribunal’s decision, particularly in light of the unsatisfactory nature of the applicant’s delay.
Accordingly, the applicant’s application for an extension of time should be refused.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 7 December 2012