SZTEA v Minister for Immigration

[2014] FCCA 622

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTEA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 622

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – application to extend time – no merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.441A, 476, 477

SZMFJ v Minister for Immigration & Anor [2009] FMCA 771

Applicant: SZTEA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1814 of 2013

Judgment of: Judge Manousaridis

Hearing date: 13 December 2013

Delivered at: Sydney

Delivered on: 31 March 2014

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act is dismissed.

2. The applicant pay the costs of the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1814 of 2013

SZTEA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 6 October 2005 the second respondent (Tribunal) handed down a decision in which it affirmed a decision of a delegate of the first respondent (Minister) refusing the applicant a protection visa. The applicant, a national of the People’s Republic of China, applied for a protection visa on the ground he feared persecution because he was a practitioner of Falun Gong.

2. According to the Tribunal’s reasons for decision, on 11 August 2005 the Tribunal wrote to the applicant that it was unable to make a favourable decision on the information that was before it, and invited the applicant to appear before the Tribunal on 14 September 2005 to give oral evidence and present arguments. The applicant did not appear, and the Tribunal proceeded with the application for review and dismissed it.

3. On 2 August 2013, almost eight years after the Tribunal affirmed the delegate’s decision, the applicant filed an application for review of the Tribunal’s decision. The application was obviously filed outside the thirty-five day period allowed by s.477(1) of the Migration Act 1958 (Cth) (Act) within which an application for judicial review may be made under s.476 of the Act. The applicant, accordingly, included in the application an application for an extension of time pursuant to s.477(2) of the Act. These reasons address the application for an extension of time.

Principles governing exercise of power under s.477(2)

1. The power conferred by s.477(2) to extend the 35 day period prescribed by s.477(1) is discretionary; and the factors the Court should usually consider when exercising that discretion were identified by Nicholls FM (as his Honour then was) in SZMFJ v Minister for Immigration & Anor.[1] Although his Honour there identified five separate factors, the determining factor in an application for an extension of time will usually be whether the applicant has a meritorious claim. Another important factor noted by his Honour is the extent of and reason for the delay.

   [1] [2009] FMCA 771 at [44]

The grounds on which applicant relies for an extension of time

1. The applicant relies on the following grounds for an extension of time:

   1.The Applicants [sic] is of low educational and financial backgrounds.

   2.The Applicant was unaware and not informed by their migration agent that an application for review of the RRT decision could be made to the Federal Circuit Court on the basis of unfairness.

   3.The Applicant genuinely believe [sic] that the RRT and DIAC decisions are unfair.

2. These grounds, and in particular, ground 2, were not supported by any affidavit evidence. At the hearing, I asked the applicant whether he wished to give evidence. After the applicant indicated he so wished, he went into the witness box and affirmed he would give truthful evidence. He then said that the grounds for an extension of time on which he relied were true. He was then cross-examined by the Minister’s lawyer.

3. The applicant filed an affidavit together with his application. That affidavit was as follows:

   1.I am the first applicant of this matter.

   2.On or about 3 May 2005, I received a letter from the delegate of Minister for Immigration and Citizenship and Refugee Review Tribunal which enclosed the Protection (Class XA) Visa Decision Record, a copy of which is annexed and marked “A”.

   3.On 14 September 2005, I attended the Refugee Review Tribunal hearing.

   4.On or about September 2005, I received a notification of decision letter from Refugee Review Tribunal with a statement of decision and reasons, a copy of which is annexed and marked with “B”.

4. Under cross-examination, the applicant acknowledged that he did not attend a hearing before the Tribunal.[2] The applicant, contrary to ground 2 of his grounds for an extension of time, said he did not have a migration agent but he had another person help him.[3] That person was neither a migration agent nor a lawyer.[4] The other person “didn’t know much and his English was not so good”.[5]

   [2] T9.25

   [3] T10.10

   [4] T12.1

   [5] T12.25

Extent of and explanation for delay

1. I do not accept the applicant’s explanation for the delay in filing this application. Contrary to what is stated in his application, the applicant acknowledged when giving evidence that he did not have any migration agent who advised him in relation to the proceedings before the Tribunal.

2. Even if the applicant did have a migration agent, the matter of which he claims he was unaware and of which he was not informed – an ability to apply to this Court for a review of the Tribunal’s decision “on the basis of unfairness” – is not one which can be relevant to determining whether the Court should extend the time for filing an application. That is so because the Court does not have jurisdiction to review a decision of the Tribunal on the ground of unfairness.

3. Further, the applicant did not give any evidence of when or the circumstances in which he became aware that it was possible to apply to this Court for the review of the Tribunal’s decision on the ground of unfairness.

Merits of proposed grounds of review

1. I next consider the merits of the applicant’s proposed grounds of review, which are as follows:

   The Decision was effected by jurisdictional error.

   a.The Applicant genuinely believes that there was a denial of procedural fairness.

   b.There was an error of law, evidence provided were not considered clearly and seriously by RRT member.

2. I invited the applicant to make submissions in support of these grounds. The only reason on which the applicant relied for claiming he was denied procedural fairness is his not attending a hearing before the Tribunal. The applicant made no submission in support of paragraph (b) of the grounds I have set out in paragraph 12.

3. There is in evidence a copy of the letter dated 11 August 2005 which the Tribunal sent to the applicant at the address the applicant nominated in his application for review. The letter bears a mark that indicates the letter was sent by registered post. That was one of the means by which the Tribunal was then (as it is now) permitted to send a letter to an applicant, provided the letter was dispatched within three working days of the date of the letter.[6] The only evidence before me that the letter of 11 August 2005 was sent within three working days of its date is the following statement contained in the Tribunal’s reasons that:

   On 11 August 2005, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone

   [6] Subsection 441A(4) of the Act. In 2005 that subsection was in substantially the same form as it currently appears in the Act.

4. On the basis of that statement, I have no doubt the Tribunal dispatched the letter dated 11 August 2005 on 11 August 2005. I will deal with the application for an extension of time, however, on the alternative assumptions that the letter was and was not dispatched in accordance with s.441A(4) of the Act. If it was dispatched in accordance with s.441A(4) of the Act, there would be no merit in the applicant’s claim that he was not given notice of the hearing before the Tribunal. If, on the other hand, the letter dated 11 August 2005 was not dispatched in accordance with s.441A(4), there would be merit in such claim.

5. The second proposed ground of review is not reasonably arguable. The application does not identify the error of law it is claimed the Tribunal made. And it is clear from the Tribunal’s reasons that the Tribunal had before it the Department of Immigration and Citizenship file which included the applicant’s protection visa application and the delegate’s decision record, and that it had regard to the material referred to in the delegate’s decision. There is nothing to suggest the Tribunal did not do what it said it did.

Other factors relevant to s.477(2)

1. If the Tribunal’s letter dated 11 August 2005 was dispatched on the date it bears, there would be no merit in the applicant’s proposed claim for relief. In those circumstances, not to extend the time for filing the application will not have an adverse impact on the applicant because his application is bound to fail; and to extend the time will prejudice the Minister to the extent the Minister will incur additional costs to defend a claim that is bound to fail. Further, the interests of the public at large will be served if time were not extended to file an application for a claim that is bound to fail; it is not in the interests of the public to devote public resources to the determination of a claim that is bound to fail.

2. If, on the other hand, the letter dated 11 August 2005 was not dispatched on the day it bears and, for that reason, the applicant’s claim has merit, I would not exercise my discretion in favour of extending the 35 day period. The period that has elapsed is extremely long, and the applicant has given an explanation for the delay which on his own evidence was plainly incorrect. The applicant’s delay in bringing his claim for judicial review, therefore, is unexplained. I accept that not extending the 35 day period may result in prejudice to the applicant. But prejudice alone is insufficient to lead the Court to exercise its discretion under s.477(2) of the Act to extend the 35 day period. Further, it is not in the public interest to extend the 35 day period where the applicant has provided an explanation for the delay which was clearly incorrect and has provided no other explanation for the delay.

Disposition

1. I am not prepared to extend the 35 day period prescribed by s.477(1) of the Act for the making of an application for a remedy in exercise of the Court’s original jurisdiction under s.476 of the Act.

2. I propose, therefore, to dismiss the application to extend the 35-day period and order that the applicant pay the Minister’s costs of that application.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 31 March 2014