SZSDA v Minister for Immigration - [2012] FMCA 1121

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZSDA v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1121

MIGRATION – Refugee Review Tribunal – whether order should be made preventing applicant’s removal from Australia – whether any serious question to be tried – whether applicant made out prima facie case – whether extension of time for seeking judicial review of decision of Refugee Review Tribunal is in interests of justice – whether explanation for delay satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time – applicant’s application for order to prevent removal from Australia refused.

Migration Act 1958 (Cth), s.477

Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Plaintiff M168/10 v Commonwealth (2010) 279 ALR 1

Applicant:

SZSDA

First Respondent:

MINISTER FOR IMMGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2509 of 2012

Judgment of:

Emmett FM

Hearing date:

21 November 2012

Date of Last Submission:

21 November 2012

Delivered at:

Sydney

Delivered on:

21 November 2012

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

Legally unrepresented, but assisted by applicant’s sister-in-law

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Minter Ellison

ORDERS

The applicant’s oral application for an order to prevent from his removal from Australia on 23 November 2012 is refused.
The applicant pay the costs of the first respondent fixed in the amount of $1,296.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2509 of 2012

SZSDA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

This is an oral application by the applicant seeking orders to prevent his removal from Australia tomorrow. There has been no formal application in a case filed by the applicant seeking an order to prevent his removal.
On 2 November 2012, the applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 3 February 2012. That application was given a first return date of 5 December 2012 at 10:00am. In the meantime, on 17 November 2012 a friend of the applicant’s who has attended Court today, identifying herself as the sister-in-law of the applicant, wrote to the Court to inform the Court that the applicant was to be removed from Australia prior to 5 December 2012.
On 16 November 2012, the first respondent wrote to my chambers stating that the applicant’s removal was scheduled to take place this Friday, 23 November 2012. In light of the information received from the applicant’s friend on 17 November 2012 and from the respondent’s solicitor on 16 November 2012, I had this matter re-listed before me this afternoon at 2:00pm.
Leave was granted to the applicant to make an application orally for an order preventing his removal from Australia this Friday despite the lack of a formal application in a case or any supporting evidence.
The orders sought by the applicant are opposed by the first respondent on the basis that the applicant has not made out a prima facie case and that the applicant’s application, filed on 2 November 2012, does not disclose a serious question to be tried.
The application for judicial review of the Tribunal’s decision filed on 2 November 2012 was filed outside the mandatory time limits provided by s.477 of the Migration Act 1958 (Cth) (“the Act”) and requires an extension of time.
Section 477 of the Act provides that an application for judicial review of a decision of the Tribunal is to be made within 35 days of the date of that decision. The decision in this case, as stated above, was 3 February 2012. The application was filed on 2 November 2012, clearly substantially out of time. Section 477 of the Act provides that the Court may extend time to an applicant to bring an application for judicial review of a Tribunal decision where it is satisfied that it is in the interests of justice to do so.
I explained to the applicant that relevant to his application this afternoon would be his explanation for his delay in seeking judicial review of the Tribunal’s decision; and whether any error in the Tribunal’s decision going to its jurisdiction has any or any reasonable prospect of success as identified in the grounds of his application for judicial review, or any other error that the applicant may identify. The applicant was invited to say whatever he wished in support of his application. The applicant made no relevant submission. The applicant said that he wished for his case to be given another opportunity, that he has been here for four years and has no criminal record in Australia.
The explanation for his delay in seeking judicial review provided by the applicant in his application is as follows:
“1. At the time the tribunal made a decision on my case I was not aware that I can appeal to the federal court.
2. I recall that one of my helpers assisted me in writing a letter to the Minister.
3. Now I ask the court to allow me to argue my case.”
I understand that the applicant’s explanation for his delay is that he was not aware that he could appeal the Tribunal’s decision and elected to write to the Minister. The applicant provided no further explanation. There is no explanation about the nature of any letter to the Minister or whether the applicant sent such a letter or received any response. The applicant did not assert that he had not received the Tribunal’s decision around the date of the Tribunal’s decision.
In the circumstances, I am not satisfied that the explanation offered by the applicant for his delay is satisfactory to explain the length of the delay, which I find to be significant.
In considering whether the applicant has identified an error on the part of the Tribunal that has any prospect of success or identifies a serious question to be tried, the grounds of the application are as follows:
“1. I ask the Honourable Court to accept my review because the decision of the Refugee Review Tribunal does not address my serious fear if I am to return to India.
2. I wait until I receive the documents from the Department then I will make the grounds for my case.
3. I am currently traumatised because I am at Villawood Detention Centre.”
None of the grounds identifies an error capable of review by this Court. Grounds 2 and 3 do not assert any error on the part of the Tribunal. Ground 1 makes the bare assertion that the Tribunal did not address the applicant’s “serious fear”. However, that assertion is not supported by particulars, evidence, or any relevant submission by the applicant. Based on those grounds, the applicant has no, or no reasonable, prospects of success in establishing that the Tribunal’s decision is affected by jurisdictional error.
At the same time as filing his application on 2 November 2012, the applicant filed an affidavit, sworn on 2 November 2012, annexing the Tribunal’s decision and stating as follows:
“1. I am the applicant who applied to the federal Court. I have provided copy of RRT decision.
2. I authorised my sister in law [name] to represent me in federal magistrate court.”
The affidavit does not address any further complaint by the applicant.
As stated above, I am not satisfied that the applicant has not provided a satisfactory explanation for his delay in seeking judicial review. In addition, the applicant has not demonstrated any utility in extending time in that he has not identified any ground of judicial review with any reasonable prospects of success.
In the circumstances, it is unlikely that a Court would find that it would be in the interests of justice to extend time to the applicant to seek judicial review of the Tribunal’s decision, dated 3 February 2012. Such a finding would ordinarily result in the proceeding, commenced by way of application filed on 2 November 2012, being dismissed.
Accordingly, for the purposes of his application to this Court for orders to prevent his removal from Australia tomorrow, the applicant has not identified a serious question to be tried.
In the circumstances, the applicant has failed to make out a prima facie case to support his application for an order to prevent his removal from Australia on Friday, in the sense that if the evidence remains as it is at a trial, the applicant is unlikely to be granted relief (see Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; Plaintiff M168/10 v Commonwealth (2010) 279 ALR 1 at 5-6 per Crennan J).
Accordingly, the applicant’s application for an order to prevent his removal from Australia on 23 November 2012 should be refused.

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

Date: 27 November 2012