SZSJD v Minister for Immigration and Border Protection

[2013] FCCA 1414

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSJD v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2013] FCCA 1414

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Whether an extension of time should be granted pursuant to s.477 of the Migration Act 1958 (Cth) – whether it is necessary in the interests of justice to extend time – delay of more than 400 days – whether applicant’s explanation is satisfactory – whether grounds of application raised an arguable case – unsatisfactory explanation – insufficient prospects of success – application refused.

Legislation:

Migration Act 1958 (Cth), ss.36, 477

SZSFK v Minister for Immigration & Anor [2013] FCCA 7
Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491

Applicant: SZSJD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1719 of 2013

Judgment of: Judge Emmett

Hearing date: 19 September 2013

Date of Last Submission: 19 September 2013

Delivered at: Sydney

Delivered on: 6 December 2013

REPRESENTATION

Solicitor for the Applicant:

Adrian Joel

(Adrian Joel & Co)

Solicitor for the Respondent: Bernadette Rayment
(Sparke Helmore)

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1719 of 2013

SZSJD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks an order pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) that time be extended to him to seek judicial review of a decision of the Refugee Review Tribunal (“the RRT”), dated 1 May 2012.  The application to this Court seeking judicial review of that decision was made on 25 July 2013.

2. Section 477 of the Act provides that an application to this Court for judicial review of a decision of the RRT be made within 35 days of the date of the decision of the RRT. Any such application should have been filed by 5 June 2012.

3. Section 477(2) of the Act provides discretion to the Court to extend that 35-day period if the Court considers that it is necessary, in the interest of the administration of justice, to make such an order.

4. In support of the applicant’s application this morning, the applicant’s solicitor, Mr Joel, read affidavits of the applicant and himself, affirmed 20 July 2013 and 22 July 2013 respectively. The affidavit of the applicant, inter alia, provided a brief history of his application for a protection visa, which commenced on 25 October 2010. Mr Joel’s affidavit annexed a copy of the RRT decision record.

5. The applicant deposed that his application for protection was refused by a delegate of the first respondent (“the Delegate”) on 24 June 2011, and that the decision of the RRT to affirm the Delegate’s decision was made on 1 May 2012.  The applicant also acknowledged that he was aware that his previous solicitor had filed an application for judicial review on 7 December 2012, and that that application was subsequently withdrawn on 19 March 2013.

6. It is common ground that there is no evidence before this Court of any explanation of the delay by the applicant in filing his present application on 25 July 2013. 

7. Mr Joel submitted that time should run against the applicant from 16 May 2013, being the date of a decision of the Federal Court in SZSFK v Minister for Immigration [2013] FCCA 7 (“SZSFK”).

8. SZSFK was referred to by Mr Joel in support of a submission that the RRT erred in failing to consider the applicant’s claims afresh in considering whether or not the applicant was entitled to complementary protection under s.36(2)(aa) of the Act, that section having come into force on 24 March 2012. As stated below, a fair reading of the RRT’s decision record does not support a contention that the RRT failed to consider the applicant’s claims in considering complementary protection.

9. Mr Joel submitted that the scale of the error made by the RRT in reaching its decision means that the present application’s prospects of success are such that it would be in the interests of justice for the Court to extend time to the applicant to seek judicial review of the RRT’s decision. However, even if SZSFK did have some application to this case, that is not, by itself, a reason why time should be extended to the applicant, particularly where there is a delay without explanation of over 400 days. It was open to the applicant to raise an argument on appeal as that argued in SZSFK within time. In any event, this Court is not bound by that decision.

10. I do not accept these submissions. Clearly time runs against the applicant from the date of the RRT’s decision, being 1 May 2012.  In the circumstances, the applicant is over 400 days late in the filing of his application seeking judicial review of the RRT’s decision.

11. It is clear from the RRT’s decision record that the basis of the applicant’s claim for protection is a fear of persecution in Lebanon by reason of his homosexuality. A fair reading of the RRT’s decision record makes clear that the RRT rejected the applicant’s claim to be a homosexual, either in Lebanon or in Australia. 

12. The history of the proceeding shows that the applicant was offered a further hearing before the RRT following the introduction of the complementary protection criterion. The applicant attended this hearing however, made no new or further claims about the reasons why he feared harm in Lebanon.

13. Mr Joel submitted that the process engaged in by the RRT was not sufficient to meet its obligations to consider the applicant’s claims in relation to complementary protection, and that the RRT relied only on its findings in relation to whether or not the applicant was entitled to protection under the Convention. However, it would appear that the same claims were made by the applicant in relation to both; that is, his homosexuality and his alleged fear of persecution on that basis, if returned to Lebanon. 

14. To the extent that the applicant relied on his conduct in Australia in support of his refugee claims, the RRT was satisfied that the conduct was engaged in solely for the purpose of strengthening his claim to be a refugee.

15. In considering complementary protection, the RRT found that whatever corroborative weight the applicant’s conduct in Australia might carry, it did not overcome the RRT’s reasons finding that the applicant is not a homosexual.

16. There has been no satisfactory explanation for the delay in filing an application for judicial review of the RRT’s decision. A delay of some 415 days is unquestionably substantial and lengthy. In fact, no explanation has been offered. The applicant was legally represented before the Delegate, the RRT and subsequently in proceedings before this Court.

17. Whilst a delay of that duration may itself be sufficient to refuse an extension of time, I have had regard to whether the grounds of the applicant’s application appear to raise an arguable case. Those grounds are as follows:

    “1. The first respondent failed to address the correct question before it, namely whether the applicant was entitled to be granted a protection visa according to law.

    Particulars

    a.The first respondent concluded at paragraph 116 [of the RRT’s decision record] that considering the applicant could not meet the refugee criterion in accordance with s.36(2)(a)[of the Act], this meant he could not meet the complementary protection criterion referable to the application of s.36(2)(aa). Further, this rationale was applied at paragraph 117 [of the RRT’s decision record] in dismissing related claims.

    2. The applicant has been denied procedural fairness in the making of the decision by the first respondent with respect to the operation of s.36(2)(aa) of the Migration Act and in so doing offends the application of s.420(2)(b). Application of this provision includes the duty of the respondent to identify to the applicant’s issues which may be of determinative significance, which were not apparent from the terms and nature of the protection visa application completed, nor the Department’s or the Tribunal’s interviews conducted. Such duty also exists independently of statutory obligation.

    Particulars

    a.Section 36(2)(a) [of the Act] provides for consideration of Convention-based persecutory grounds, whilst s.36(2)(aa) provides for the consideration of claims with respect to complementary protection.

    b.The first respondent either did not apply any procedure, or any satisfactory procedure, to identify issues distinct from Convention-based persecutory claims which could be relevant and determinative when considering claims based on harm, and to inform the applicant as to the character of such issues.

    c.The applicant assumed the reasons provided by the Minister’s delegate for refusing the protection visa identified the totality of issues that arose in relation to that decision, and proceeded with his request for review and attendance at the interview with the Tribunal on such basis.

    d.Had the respondents discharged the notification obligations as to unresolved complementary issues the applicant would have been provided with an opportunity to particularise such claims, which could include discrimination, socioeconomic deprivation and failure of Police to provide protection with respect to risk personally faced by the applicant, and other harm not falling within a Convention ground.

    e.At the time of completion of the application of a protection visa (class XA on Form 866A) and at the time of the Department’s and Tribunal’s interviews, the applicant remained ignorant of the evidentiary ambit of complementary claims, in contrast to the knowledge of the respondents as to the ambit of such claims.

    f.The Tribunal’s decision record limits complementary consideration to a set of factual circumstances or mosaic, as conveyed with respect to persecutory claims, the effect of which has been to curtail and/or intermix the ambit of analysis contemplated with respect to the operation of s.36(2)(aa), and deprive effective consideration thereof.

    g.Further, by virtue of the conclusion drawn as to the applicant not being found to have suffered serious harm in the Convention context, such view has been extended to the unresolved context of complementary harm and/or also sustained the evidentiary foundation in dismissing claims of a real risk of significant harm that could have been raised.

    3. Error of law.

    Particulars

    a.There is no evidence that the respondent adopted the correct evidentiary test when considering complementary claims, namely a real chance of real risk.

    b.The first respondent concluded as a result of determining the applicant could not satisfy a Convention-based ground, this therefore meant that the applicant could not satisfy evidentiary criteria with respect to s.36(2)(aa) [of the Act].

    c.The effect of application of s.91R(3) [of the Act]. dictated in part the character of complementary assessment extinguishing any evidentiary weight being ascribed to events occurring in Australia that could support such claims.”

18. The grounds of the application do not raise an arguable case that the RRT fell into jurisdictional error. To the extent that Mr Joel referred in oral submissions to SZSFK, a fair reading of the RRT’s decision record discloses that the RRT considered the applicant’s claims in light of the complementary protection criterion in s.36(2)(aa) of the Act and assessed those claims based on the evidence and material before it, as it was bound to do.

19. Grounds 1 and 3 appear to make the same complaint that the RRT erred in using findings that it made in considering the applicant’s Convention grounds when it considered whether the applicant met the complementary protection criterion. However, the RRT’s reasons make clear that the RRT took into account the review applicant’s evidence at the further hearing. The RRT clearly rejected the applicant’s claim to be a homosexual and to fear harm on that basis. Having rejected that claim, the RRT was entitled to have regard to that finding in considering complementary protection.

20. Ground 2 appears to suggest that the applicant was denied procedural fairness by the RRT in its assessment of the complementary protection criterion because it did not identify to the applicant the issues which may be of determinative significance, and which were not apparent from the terms and nature of the protection visa application, the interview with the Delegate or the RRT hearing. However, there is no such obligation on the RRT to identify issues to the applicant in the manner asserted in ground 2.

21. In the circumstances, the RRT’s consideration of complementary protection appears to be orthodox. As stated above, I am not persuaded by Mr Joel that the grounds identified in the application raise an arguable case.

22. There is unquestionably a public interest in the finality of this administrative decision. As stated above, the applicant filed an earlier application for judicial review of the RRT’s decision in December 2012 (which would also have required an extension of time to pursue) and which ultimately he discontinued in March 2013. He then lodged his second application for judicial review on 25 July 2013 and it is an extension of time in respect of that application that is the subject of this hearing.

23. I accept the submission of the solicitor of the first respondent that there is prejudice to the first respondent in extending time to the applicant. The first respondent has been vexed twice by coming before the Court in respect of these two applications by the applicant to seek judicial review of the RRT’s decision in circumstances where both applications were made out of time and with legal representation. 

24. I also accept the submission by the solicitor for the first respondent that there is no evidence to suggest that the applicant’s previous solicitor was the subject of any complaint by the applicant. 

25. The relevant principles are referred to in Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491, in which McHugh J stated at [15]-[17] as follows:

    “15. An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases. Nevertheless, the applicant is seeking the quashing of a decision of the AIRC made 17 months before he filed his application for relief in this Court.

    16. Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, "[t]he rules of court must prima facie be obeyed". The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.

    17. An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.”

    (emphasis added)

26. In balancing the overall interests of justice, I have had regard to the history of the matter, the conduct of the applicant, the massive delay in seeking judicial review for over 400 days without explanation, and the public interest in requiring that there be an end to litigation about the efficacy of Tribunal decisions.

27. I accept that if the applicant is denied an opportunity to seek judicial review of the RRT’s decision, that may be prejudicial against him. However it does not turn the interests of justice in favour of the applicant in all the circumstances of this case.

28. In my view, the balance weighs in favour of refusing the applicant’s application that time be extended to seek judicial review of the RRT’s decision.

29. Accordingly, the application to extent time to the applicant to seek judicial review of a RRT decision should be refused with costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  6 December 2013