SZTEH v Minister for Immigration & Border Protection

[2013] FCCA 1837

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTEH v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2013] FCCA 1837

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether time should be extended to applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time – application for extension of time refused.

Legislation:
Migration Act 1958 (Cth) s.422B, 477

SZRSN v Minister for Immigration and Citizenship [2013] FCA 751
SZBPQv Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCA 568

Applicant: SZTEH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1843 of 2013

Judgment of: Judge Emmett

Hearing date: 8 November 2013

Date of Last Submission: 8 November 2013

Delivered at: Sydney

Delivered on: 8 November 2013

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter

Solicitors for the Respondent: Ms K. Hooper
(DLA Piper)

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1843 of 2013

SZTEH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTON 

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. This is an application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) brought by the applicant in circumstances where his application for judicial review, filed 7 August 2013 was filed more than 35 days from the date of the decision sought to be reviewed.

2. Section 477 of the Act is as follows:

   “Time limits on applications to the Federal Circuit Court

   (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2)  The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a)  an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)  the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3)  In this section:

   ‘date of the migration decision’ means:

   …

   (b)  in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the written statement under subsection 368(1) or 430(1); or

   …

   (4)  For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

   (5)  To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”

3. The Refugee Review Tribunal (“the RRT”) decision is dated 29 May 2013. The applicant’s application for judicial review of the RRT’s decision was filed on 7 August 2013. In the circumstances, the application to this Court was filed in excess of the 35 day time limit provided for in s.477(1) of the Act.

4. However, pursuant to s.477(2) of the Act, the Court may extend the 35 day period if, inter alia, the Court is satisfied that it is necessary in the interests of justice to make the order.

5. The applicant’s application for judicial review, filed 7 August 2013, identified the following reasons for an extension of time as follows:

   “1. I did not know the decision had been made.
   
   2. I only knew the decision has been made when I called the Registry of the Tribunal in late July 2013.
   
   3. By that time it was about 8 weeks since the decision was handed down by the tribunal.
   
    4. The tribunal’s decision is vitiated by jurisdictional error.”

6. At today’s hearing, the applicant was unrepresented before me, although had the assistance of an interpreter. For the most part, the applicant did not appear to need the assistance of the interpreter.

7. The applicant gave sworn evidence in English in relation to the explanation for his delay. The substance of the applicant’s evidence was that at the time that the adverse decision by a delegate of the first respondent was handed down on 29 May 2013, the applicant was in detention at Villawood Immigration Detention Centre. It is clear from documents in the bundle of documents identified as Court Book, filed on 12 September 2013, and marked Exhibit 1R, that a fax was sent through to the applicant on 29 May 2013 at Villawood enclosing the RRT’s decision. 

8. The applicant gave further evidence that he did not receive the decision. However, on 11 July 2013, he requested in writing that he “would like to receive a copy of my court decision on 28 May 2013”. The applicant’s evidence was that the delegate’s decision was only brought to his attention by an immigration officer at or around the time that the decision had in fact been made. However, the applicant took no steps until 7 August 2013 to file his application to this Court for judicial review.

9. The applicant gave somewhat vague evidence as to his explanation for that delay; that he could not access legal advice, and that he spoke to an unidentified person who eventually helped him with his application. The applicant was also unable to identify when he had made any such requests for assistance. 

10. In the circumstances, the applicant’s explanation of the delay, at least from 11 July 2013, is not satisfactory.

11. In consideration as to whether it is in the interests of justice to extend time, I also have regard to the utility in making any such order.

12. The grounds of the application make bare assertions that are wholly unparticularised. They are as follows:

    “1. When the Tribunal made the decision on 29 May 2013, the Tribunal denied me procedural fairness and natural justice.

    2. The Tribunal failed to consider the best interests of my daughter as a primary consideration in breach of Australia’s International obligation funded under the United Nations Convention on the Rights of the Child.

    3. The Tribunal departed from my legitimate expectation funded on the Convention of the Child (UNCROC).”

13. I invited the applicant to say whatever he wished in support of the grounds, however the applicant had nothing to say.

14. In relation to Ground 1, I asked him in what way did the RRT deny him procedural fairness and natural justice, and he gave no response. Section 422B of the Act makes clear that Division 4, Part 7 of the Act is an extensive statement of the natural justice hearing rule in relation to a review of the decision of the RRT.

15. There has been no complaint made by the applicant or identification of any conduct by the RRT in the making of its decision or the conduct of its review that does not comply with Part 7, Division 4 of the Act.

16. In the circumstances, I am not satisfied Ground 1 of the applicant’s application has sufficient prospects of success such that it is in the interests of justice to extend time based on that ground alone. 

17. The further grounds by the applicant both make complaints that have been the subject of decisions of the Federal Court of Australia and which make clear that those complaints are misconceived and again do not have sufficient prospects of success such that it would be in the interests of justice to extend time.

18. In relation to Ground 2, the solicitor for the first respondent referred the Court to SZRSN v Minister for Immigration and Citizenship [2013] FCA 751. In that case Mansfield J, at [49], made clear that the separation of an applicant’s child from a parent is not ‘significant harm’ for the purposes of the issues before this Court.

19. In relation to Ground 3, the solicitor for the first respondent referred the Court to SZBPQv Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCA 568. That case involved an application for judicial review of a decision to refuse the applicant a protection visa on the basis that he has not satisfied the criteria of having a well-founded fear of persecution for a Convention-related reason. Hely J, at [17], made clear that, in such cases, the reliance of an applicant on the rights of the child in is misplaced.

20. In the circumstances, the applicant’s explanation for the delay is unsatisfactory. Further, I am not satisfied that there is any utility in granting the applicant an extension of time. The applicant has not raised an arguable case for the relief sought or identified a complaint with any reasonable prospect for success, such that it would be in the interests of justice that time be extended to the applicant to seek judicial review of the RRT’s decision.

21. The application for an extension of time should be dismissed with costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Emmett.

Date:  19 November 2013