SZTEB v Minister for Immigration

[2014] FCCA 623

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTEB & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 623

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.424AA, 476, 477

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

First Applicant: SZTEB

Second Applicant: SZTEC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1816 of 2013

Judgment of: Judge Manousaridis

Hearing date: 13 December 2013

Delivered at: Sydney

Delivered on: 31 March 2014

REPRESENTATION

The First Applicant appeared in person and is the litigation guardian for the Second Applicant.

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 first applicant pay the costs of the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1816 of 2013

SZTEB

First Applicant

SZTEC

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application under s.477(2) of the Migration Act 1958 (Cth) (Act) for an order extending the 35 day period prescribed by s.477(1) for the making of an application to this Court for judicial review of a decision of the second respondent (Tribunal). By that decision, the Tribunal affirmed a decision of a delegate of the first respondent (Minister) refusing to grant the applicants protection visas.

2. The application for an extension of the 35 day period is necessary because the application for relief was filed in this Court on 2 August 2013 but the Tribunal’s decision was made on 23 August 2012.

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 the applicants rely for an extension of time

1. The first applicant (applicant), who filed the application on behalf of herself and her child, relies on the following grounds for an extension of time:

   1.The First and Second Applicants are of low educational and financial backgrounds.

   2.The First and Second Applicants were 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 First and Second Applicants genuinely believe 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 she wished to give evidence. After the applicant indicated she wished to do so, the applicant went into the witness box and affirmed she would give truthful evidence. Each of the grounds on which the applicant relied was then translated to her and she was asked to say whether the ground was true. The applicant appeared to have difficulty understanding the grounds as they were translated to her. The applicant confirmed, however, that she claimed that the migration agent she had when before the Tribunal did not advise her that an application to this Court for review could be made.[2] She could not say, however, whether she believed the Tribunal’s decision was unfair. I indicated to the lawyer for the Minister that I would proceed on the assumption that the applicant held such a belief.[3]

   [2] T8.20

   [3] T8.35

3. Under cross-examination, the applicant was taken to section C of the application for review she filed with the Tribunal, and in particular, the question: “Do you have an adviser you authorise to act for you in relation to this application?”, and the box next to the word “No” being ticked.[4] Later in her evidence, the applicant accepted that she did not have a migration agent to assist her in connection with her application to the Tribunal. She said “[a]nother person – I ask another person to help me”.[5] The applicant also said she did not file her application with this Court within the time prescribed by s.477(1) because “I didn’t know”.[6] When I asked the applicant whether that was the only reason, the applicant said “Yes”.[7]

   [4] CB97

   [5] T22.1

   [6] T20.40

   [7] T20.45

Extent of and explanation for delay

1. I do not accept the applicant was being advised by a migration agent at least during the application for review before the Tribunal or at any time during the 35 day period after the Tribunal made its decision affirming the delegate’s decision. I therefore do not accept the applicant did not file an application for review within the 35 day period because she was not advised to do so by any migration agent.

2. Even if the applicant did have a migration agent, the matter of which she claims she was unaware and of which she was not informed – namely, 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 taken into account in determining whether the Court should extend the time for filing an application. The Court does not have jurisdiction to review a decision of the Tribunal on the ground of unfairness. Further, the applicant did not give any evidence of when or the circumstances in which she became aware that it was possible to apply to this Court for a 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 applicants’ proposed grounds of review, which are as follows:

   The Decision was affected by jurisdictional error.

   a.     The Applicants genuinely believes [sic] that there was a denial of procedural fairness.

   b.     There was an error of law.

2. I asked the applicant whether she wished to make any submissions in support of these grounds. The applicant said she did not.

3. The proposed grounds of the application for review state no arguable case for review. The grounds are unparticularised, and therefore give not even a suggestion of the grounds on which the applicant claims the Tribunal made a jurisdictional error. For that reason alone, the proposed grounds of review lack merit.

4. I have nevertheless reviewed the Tribunal’s reasons for decision. The Tribunal identified the claims for protection the applicant made before the delegate,[8] set out the evidence the applicant gave before the delegate, and the delegate’s decision,[9] the evidence the applicant and her husband gave to the Tribunal,[10] the particulars of information the Tribunal provided to the applicant pursuant to s.424AA of the Act,[11] and country information relating to Falun Gong, the treatment of the “Shouters”, the reaction of the Chinese authorities to the “Jasmine Revolution” , and family planning policies in China.[12] The Tribunal then recorded its findings, and reasons for its findings.[13] The essential reason the Tribunal rejected the applicant’s claim is that the Tribunal “did not find the applicant, or her husband, truthful witnesses”.[14] In my opinion, there is nothing in the Tribunal’s reasons which suggests the Tribunal did not undertake its review of the delegate’s decision other than according to law.

   [8] CB140, [25]

   [9] CB142-146, [26]-[53]

   [10] CB146-154, [55]-[87]

   [11] CB154-156, [88]-[103]

   [12] CB156-166, [104]-[132]

   [13] CB166-177,[133]-[204]

   [14] CB176, [195]

Other factors relevant to s.477(2)

1. Not to extend the time for filing the application will not have an adverse impact on the applicant because her 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.

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.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 31 March 2014