SZSXT v Minister for Immigration
[2013] FCCA 1293
•6 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSXT v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1293 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – refusal of extension of time for judicial review application. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Applicant: | SZSXT |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1285 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 6 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 6 September 2013 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms K Hooper DLA Piper |
INTERLOCUTORY ORDERS
The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
The Court directs that the name of the first respondent be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.
The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth) be refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1285 of 2013
| SZSXT |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
I have before me an application seeking judicial review of a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 11 April 2013. The Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa. The applicant is from Iraq and had made claims of persecution based upon his religion as a Sunni Muslim, and also his status as a Bedouin that might go to ethnicity or membership of a particular social group.
The application to the Court was filed on 11 June 2013. It was apparent to the applicant, at the time that application was purportedly filed, that he required an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (Migration Act). The applicant sought the exercise of the Court’s discretion pursuant to s.477(2) of the Migration Act on the basis that he relied upon his “lawyer” to follow up on his Court application and was not aware that an appeal had not been lodged until so advised by his compliance case officer in the Minister’s Department.
The applicant also asserts that the decision made by the Tribunal is unreasonable and, as I understand it, argues that he has arguable grounds of appeal. The application contains two purported grounds of appeal:
1. I relied on my lawyer to do the follow up on my application and I was not aware that an appeal was not done until I recently was asked by my Compliance Case Officer that I should lodge a Federal Court application which I now consider is necessary in the interest of administration of justice as I do have an arguable case.
2. The decision made by the Refugee Review Tribunal is unreasonable and arguable.
The applicant relies upon the affidavit of Toufic Laba-Sarkis made on 26 August 2013. That affidavit introduces a transcript of the hearing conducted by the Tribunal on 10 January 2013.
The Minister opposes the application for an extension of time on the basis that the principal application is incompetent and lacks merit.
The Minister relies upon the court book filed on 24 July 2013.
The matter came before me for first court date directions on 10 July 2013. At that time I listed the matter for hearing on the extension of time issue today at 2.15 pm. I gave the applicant the opportunity, in general terms, to file and serve any affidavit by 28 August 2013. The only affidavit filed by the applicant, apart from that of Mr Laba-Sarkis, is the affidavit which accompanied the judicial review application on 11 June 2013. I did not receive that affidavit as it does nothing other than identify the applicant and introduce the Tribunal decision.
I was left today with no affidavit evidence bearing on the question of the extension of time. Given that the opportunity afforded the applicant to file affidavit evidence was expressed in general terms, and that he may not have understood the significance of it, I gave him the opportunity to give oral evidence. The applicant took that opportunity. The applicant stated, and I accept, that he was represented before the Tribunal by Mr Kevin Ford of Playfair Visa and Migration Services. The court book discloses that the Tribunal notified Mr Ford of the decision by letter dated 12 April 2013.
The applicant gave evidence, which I accept, that he was contacted on behalf of Mr Ford within a couple of days of the Tribunal decision to inform him of it and his rights of appeal. The applicant clearly understood that he had the opportunity to apply to the Court within a limited time. The applicant says that he relied on Mr Ford to lodge that application on his behalf and was told that that would be done. The applicant gave evidence that he was twice contacted by the Minister’s Department to inquire about his circumstances, given that no application had been filed.
He claims he told the Department that Mr Ford was arranging an appeal to the Court. He was informed by the Department that they had no record of any appeal in their system. I do not rule out the possibility that there may have been some misunderstanding between the applicant and Mr Ford or his office. It would be surprising, however, if a migration agent who is not, and does not have access to, a legal practitioner, would accept instructions to undertake legal professional work.
It is also surprising that the applicant, apparently, did not expect to see and sign an application to the Court if made by himself. I am, however, prepared to give the applicant the benefit of the doubt that there was, in his mind, some confusion as to whether a court application had been lodged. However, based on his own evidence that confusion should have been removed when he was told in early May by the Department that there was no appeal.
The applicant gave evidence that, around the time the appeal period expired, he consulted Mr Laba-Sarkis. Mr Laba-Sarkis requested the audio recording of the Tribunal hearing. I accept that evidence, noting that Mr Laba-Sarkis’s affidavit introduces a transcript of that recording. However, I reject the applicant’s evidence as to the timing of his consultation with Mr Laba-Sarkis. The applicant was taken under cross-examination to page 212 of the court book. That is a copy of the notification letter from the Tribunal with a handwritten request for the hearing CDs. The applicant gave evidence that the handwritten request was made by Mr Laba-Sarkis. It is dated 6 May 2013. The appeal period expired on 16 May 2013. It follows that the applicant consulted Mr Laba-Sarkis and arranged for him to assist him with his appeal to the Court at least 10 days before the appeal period expired. That was, in my view, sufficient time for the applicant, with Mr Laba-Sarkis’ assistance, to file the application. However, the application was not filed until 11 June 2013. That delay is not explained by the request for the hearing CDs. While useful to support a judicial review application, a transcript is not an essential prerequisite. I find that the applicant has not adequately explained his delay in coming to Court.
The Minister contends that even if the delay had been sufficiently explained, which it has not, an extension of time should be refused as the purported judicial review application has no legal merit.
I agree, with one qualification. The decision plainly turns upon a relocation finding which dominated the Tribunal’s consideration. The Tribunal accepted that the applicant was at risk of serious harm in his home district in a Shia dominated area of southern Iraq. The Tribunal reasoned, however, that the applicant could avoid that harm by relocating to a Sunni dominated area further north, for example, around Mosul. The Tribunal’s consideration of the issue of relocation is detailed and takes into account practical realities.
What troubles me is that at [68] of its decision[1] the Tribunal records that Mr Ford, in a submission to the Tribunal, noted that the 2012 UNHCR Eligibility Guidelines indicated that relocation is not generally an option in Iraq. That observation is not explained and there is no further consideration of the UNHCR Guidelines in the Tribunal’s reasons. The UNHCR Guidelines do not bind the Tribunal. They may not even necessarily be persuasive. However, if the guidelines say what they are reputed to say at [68] of the Tribunal’s reasons, it is surprising that there is no discussion of them in the Tribunal’s reasoning.
[1] court book (CB) 196
That concern in my mind is, however, not sufficiently compelling to overcome the applicant’s failure to adequately explain his delay in coming to Court. If the Tribunal erred in failing to pay proper regard to the UNHCR Guidelines, the applicant has the opportunity to draw that error to the attention of the Minister’s Department, with a view to possible consideration of the circumstances by the Minister for Immigration. The Court has no influence over that process.
I will order that the application for an extension of time be refused. It follows that in the absence of the exercise of the Court’s discretion under s.477(2) of the Migration Act, the application is incompetent.
I will order that the application for an extension of time, pursuant to s.477(2) of the Migration Act be refused.
In consequence of the refusal of the extension of time and the incompetence of the application, the Minister seeks an order for cost in accordance with the Court scale. The applicant told me that he would have difficulty paying costs of that amount. However, impecuniosity is not a reason for the Court to refrain from making a costs order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 10 September 2013
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