SZSNS v Minister for Immigration and Border Protection

[2014] FCA 138

FEDERAL COURT OF AUSTRALIA

SZSNS v Minister for Immigration and Border Protection [2014] FCA 138

Citation:	SZSNS v Minister for Immigration and Border Protection [2014] FCA 138
Appeal from:	Application for extension of time: SZSNS v Minister for Immigration and Border Protection & Anor [2013] FCCA 1809
Parties:	SZSNS v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 158 of 2014
Judge:	FARRELL J
Date of judgment:	19 February 2014
Catchwords:	MIGRATION – application for extension of time – decision of Federal Circuit Court – judicial review of decision of Refugee Review Tribunal – reasons for the delay – unfamiliarity with court processes – prejudice to the respondent – merits of substantive application – appeal dismissed
Legislation:	Migration Act 1958 (Cth)
Cases cited:	SZQBT v The Minister for Immigration and Citizenship [2011] FCA 1281 SZSNS v Minister for Immigration and Border Protection & Anor [2013] FCCA 1809
Date of hearing:	19 February 2014
Date of last submissions:	19 February 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	16
Counsel for the Applicant:	The appellant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms E Baggett of DLA Piper
Solicitor for the Second Respondent:	The second respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 158 of 2014

BETWEEN:

SZSNS
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE OF ORDER:	19 FEBRUARY 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant pay the first respondent’s costs as agreed or assessed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 158 of 2014

BETWEEN:

SZSNS
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE:	19 FEBRUARY 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to lodge a notice of appeal in relation to a decision of Judge Raphael of the Federal Circuit Court delivered on 31 October 2013: SZSNS v Minister for Immigration and Border Protection & Anor [2013] FCCA 1809 (SZSNS).  

2. The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 19 December 2012 to affirm a decision of a delegate of the first respondent (Minister) to refuse an application by the applicant for a Protection (Class XA) visa (protection visa).

3. The primary judge’s reasons disclose that the applicant is a citizen of Sri Lanka and ethnically Tamil who became an unauthorised boat arrival on or around 17 February 2012.  The applicant’s claim is that he is a person to whom Australia owes protection obligations because as a young male Tamil from the northern part of Sri Lanka he has a fear that he  would be considered to be a Liberation Tigers of Tamil Eelam (LTTE) supporter and liable to be persecuted by the Sri Lankan Government.  He is also concerned that as an unsuccessful asylum seeker he would be persecuted upon his return to Sri Lanka.

4. The applicant was detained in immigration detention on 13 February 2014 and is scheduled to be deported this afternoon.  The application for extension of time was filed on 18 February 2014.  The applicant participated in this hearing by telephone link and with the assistance of an interpreter.  The Minister appeared by his representative at the hearing.

5. The principles relevant to the exercise of the power of the Court to extend time are set out in the judgment of Collier J in SZQBT v The Minister for Immigration and Citizenship [2011] FCA 1281 at [15]. They are:

   ·whether the applicant has provided an acceptable explanation for the delay in lodging the application;

   ·whether the respondent would suffer prejudice in light of the delay should an extension of time to lodge the application be granted.  The Minister accepted that this is not a relevant consideration for the purpose of this application; and

   ·the merits of the substantive application.

   REASONS FOR THE DELAY

6. The explanation advanced by the applicant for the delay in lodging a notice of appeal is that he only became aware of the primary judge’s decision when, on 13 February 2014, he was detained by the Department and he was taken directly to the Immigration Detention Centre. 

7. The Minister argued that the applicant was present and appeared in person before the primary judge, and therefore heard his decision, and that the applicant was, in those proceedings, assisted by an interpreter.  The Minister has also drawn to the attention of the Court a copy of a letter dated 27 November 2013 written by Henry Davis York, Solicitors, on behalf of the applicant.  The letter requested the Minister to exercise his discretion under s 417 and s 48B of the Migration Act 1958 (Cth) (Migration Act) to allow the applicant to make a further protection visa application.  That letter specifically refers to the fact that the application for judicial review made to the Federal Circuit Court was dismissed on 31 October 2013.

8. The applicant explained that he did not understand the processes and the timeframes for appeal.  He also did not understand the processes associated with the application to the Minister which had been made on his behalf.  He advised the Court that he had been unwell and depressed at the time, so that he was not in a fit condition to deal with these issues.  The representative of the Minister pointed out, however, that the applicant has not claimed a deeper medical condition. 

9. I am therefore not satisfied that there has been an adequate explanation for the delay due to the fact that the applicant was present when the primary judge rendered his decision dismissing the applicant’s application for judicial review of the Tribunal’s decision.  The letter written to the Minister on behalf of the applicant references the primary judge’s decision and the applicant clearly had access to legal advice in a relevant timeframe, as demonstrated by the date of the letter to the Minister.

   MERITS OF THE SUBSTANTIVE APPLICATION

10. That is not the end of the issue and I must also consider the merit of the substantive application.  

11. The applicant said that the draft notice of appeal attached to the applicant’s affidavit in support of his application for extension of time was prepared by community workers and he is not familiar with its contents.

12. The first ground in the draft notice of appeal claims that there is a jurisdictional error in the Federal Circuit Court’s decision, but no particulars have been provided.    The second ground is that reasons provided by the second respondent to the first respondent in support of the second respondent’s recommendation that the appellant was not a person to whom Australia has protection obligations were neither logical nor rational.  The third ground was that further grounds of appeal would be provided once the applicant has access to legal representation.

13. I understand that it is very difficult for a self-represented person to provide details of an arcane concept such as jurisdictional error.  However, having read both the Tribunal’s decision record and the primary judge’s reasons, it is not apparent to me that jurisdictional error exists. 

14. The Tribunal considered the applicant’s claims, including specifically claims to fear harm if returned to Sri Lanka having regard to specific country information. The Tribunal also put to the applicant those issues on which it had concerns or reasons to disbelieve him, which were reasons to affirm the decision under review. It appears to me that the Tribunal complied with its obligations under the Migration Act and that its findings were open to it as the forum for decision as to the merits of the application. Accordingly, I do not consider that an appeal would have any reasonable prospect of success.

    CONCLUSION 

15. The Minister’s representative raised the issue of whether an injunction had been sought.  It was not clear from the documents that an injunction had been sought.  However, were I to find that there were reasonable grounds for an appeal, then I would have been inclined to grant an injunction restraining the Minister from removing the applicant from Australia.  However, that is not the case. 

16. I accordingly dismiss the application for extension of time and order that the applicant pay the respondent’s costs as agreed or assessed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Associate:

Dated:       5 March 2014