SZSQW v Minister for Immigration

[2013] FCCA 523

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSQW v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 523

Catchwords: 
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Whether applicant should be grantedan extension of time pursuant to s.477 of the Migration Act 1958 (Cth) to file a proceeding seeking constitutional writ relief – whether delay is satisfactorily explained – whether applicant has any, or any reasonable, prospects of establishing jurisdictional error in the Refugee Review Tribunal’s decision – delay not satisfactorily explained – no reasonable prospects of success in establishing jurisdictional error – application dismissed.

Legislation: 
Migration Act 1958 (Cth), ss.424, 425, 426A, 474

Applicant: SZSQW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 516 of 2013

Judgment of: Judge Emmett

Hearing date: 24 May 2013

Date of Last Submission: 24 May 2013

Delivered at: Sydney

Delivered on: 24 May 2013

REPRESENTATION

The Applicant appeared in person with the assistance of an interpreter

Solicitor for the Respondents: Ms Michelle Stone (DLA Piper)

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 516 of 2013

SZSQW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

Introduction

1. This is the applicant’s application that time be extended to her to seek judicial review of a decision of the Refugee Review Tribunal (“the RRT”), dated 2 August 2012 and handed down on 3 August 2012.  The applicant filed her application on 14 March 2013 seeking judicial review of that decision, which affirmed a decision of a delegate of the first respondent refusing the applicant a protection visa.

2. Pursuant to s.477 of the Migration Act1958 (Cth) (“the Act”), the applicant must file any application for a judicial review within 35 days of the handing down of the RRT’s decision. Plainly, it was some months after that date that the applicant filed her application for judicial review. There is power under s.477(3) of the Act for the Court to grant the applicant an extension of time where the Court is satisfied that it is in the interests of justice to do so.

3. The first respondent opposes an extension of time being granted to the applicant, on the basis that the applicant’s explanation for her delay in filing her application seeking judicial review in this Court is unsatisfactory and that the substantive grounds of her application do not disclose an error with any prospects of success. In support of her submission, the solicitor for the first respondent, Ms Stone, tendered a bundle of relevant documents identified as Court Book, filed on 8 April 2013, which was marked Exhibit 1R.

4. I explained to the applicant that the two issues for the Court would be her explanation for delay and whether there was utility in extending time to her because she has reasonable prospects of demonstrating error on the part of the RRT.

5. The applicant’s explanation for her failure to file her application for judicial review is identified in the application as follows:

   “1. I did not receive the letter from the Tribunal inviting me to comment.

   2. I did not receive the letter from the Tribunal inviting me to appear before it for the hearing.

   3. The letters were sent to a wrong address.

   4. I did not receive the Tribunal’s decision and did not know that the Tribunal has made its decision.

   5. The first time that I became aware of the fact that the Tribunal has made a decision was on the 27 February 2013 at and in Villawood Immigration Detention Centre when I was informed that I am unlawful.

   6. The first time I saw the decision of the Tribunal was on 27 February 2013 in Detention.”

6. The applicant confirmed that was the entirety of her explanation.

7. The applicant’s explanation for her delay is entirely unsatisfactory.  She appears to have taken no steps to inform herself of the decision of the RRT for some months.

8. The utility in extending time is considered below.

9. The applicant failed to attend the RRT hearing. The RRT found that the applicant was sent an invitation in accordance with ss.424 and 425 of the Act.

10. Exhibit 1R makes clear that the applicant, in her application for review by the RRT of the delegate’s decision, provided only one address in Australia. 

11. Exhibit 1R makes clear that the applicant was invited to attend a hearing before the RRT to present arguments relating to the issues arising in her case and to give evidence. That invitation was sent to the applicant at the only address identified by the applicant in her review application. The letter identified the date, time and location of the hearing and otherwise complied with ss.424 and 425 of the Act.

12. The RRT noted in its decision record that it had written to the applicant on 6 July 2012, inviting the applicant to the hearing on 2 August.  The RRT noted that the letter advised the applicant that if she did not attend the hearing and a postponement was not granted, the RRT may make a decision on her case without further notice.  The RRT noted that the letter of invitation was sent to the applicant at the last address for service provided to the RRT by the applicant in connection with the review.

13. The RRT also noted that it confirmed that the letter was sent within three working days of the date of the letter by prepaid registered post. The RRT also noted that the letter was not returned to the RRT as unclaimed. When the applicant did not appear before the RRT at the scheduled time and place and did not contact the RRT regarding her failure to attend the hearing, the RRT exercised its discretion, pursuant to s.426A of the Act, to decide to make its decision on the review without taking any further action to enable the applicant to appear before it.

14. There is nothing on the face of the decision record to suggest that the RRT’s exercise of its discretion under s.426A was made other than according to law. The RRT then considered the applicant’s written claims, however was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution for a Convention reason.

15. The grounds upon which the applicant relies in establishing jurisdictional error on the part of the RRT are as follows:

    “1. The Tribunal was in error because it had made the decision in denial of procedural fairness and denial of natural justice to me.

    2. The Tribunal had constructively failed to exercise jurisdiction.

    3. The Tribunal misconstrued and applied the wrong text in its interpretation of section 36 (2) of the Migration Act 1958.

    The Tribunal’s Jurisdiction remained unexercised according to law. Given the fact that I did not attend the hearing and did not make any commencements or submissions oral or written before the Tribunal.

    The Tribunal had failed to ask relevant questions prescribed by law and its decision was beyond power.”

16. Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally. The applicant submitted that she was not given adequate time to go to the RRT and did not understand the materials that she had been given in relation to her application. The applicant provided no explanation why the time was not adequate. As states above, it appears that the RRT sent its letter of invitation in accordance with the statutory scheme provided for in the Act. Further, the letter had contact details for interpreting services. In any event, neither of the applicant’s explanations would appear to demonstrate any error on the part of the RRT.

17. Each of the grounds makes a bare assertion unsupported by particulars and, as such, does not identify any error capable of review by this Court.  Moreover, there is no error apparent on the face of the RRT’s decision record to suggest that the decision is affected by jurisdictional error.

1. In the circumstances, I am not satisfied that it would be in the interests of justice to grant the applicant the extension of time she seeks.

2. Accordingly, the application for extension of time is refused with costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  13 June 2013