SZTLH v Minister for Immigration

[2013] FCCA 1913

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTLH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1913

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – refusal of an extension of time for a judicial review application.

Legislation:

Migration Act 1958 (Cth), s.425

Applicant: SZTLH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2629 of 2013

Judgment of: Judge Driver

Hearing date: 19 November 2013

Delivered at: Sydney

Delivered on: 19 November 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms M Stone

DLA Piper

INTERLOCUTORY ORDERS

1. The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth), is refused.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2629 of 2013

SZTLH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before an application for an extension of time for a purported judicial review application filed on 28 October 2013.  That application seeks judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 13 July 2012.  The delay in bringing the judicial review application is well in excess of 12 months.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is from Pakistan.  He arrived in this country in April 2008 as a student and applied for a protection visa on 24 November 2010.  That request was refused by the Minister’s delegate and the applicant sought review before the Tribunal.  During the period of consideration of the visa application the Migration Act 1958 (Cth) (Migration Act) was amended in order to include the complementary protection criterion.

3. The applicant appeared before the Tribunal on 24 April 2012 to give evidence and present arguments.  The Tribunal decision describes in detail what occurred at the Tribunal hearing.  The applicant had raised a number of fears of harm in Pakistan.  These included a fear of being abducted and a fear of militants.  The applicant’s claims were in part disbelieved by the Tribunal, that the Tribunal accepted that the applicant did genuinely fear abduction.  The Tribunal reasoned that there was no Convention nexus with the applicant’s fear because the motivation for abduction would be purely criminal.  The Tribunal considered whether the applicant nevertheless qualified for complementary protection.  The Tribunal reasoned, in particular at [150], that he did not so qualify because the applicant did not represent an attractive target for kidnapping. 

4. The application for an extension of time is supported by the applicant’s affidavit filed on 13 November 2013.  In that he asserts various problems at the Tribunal hearing. In his proposed judicial review application, the applicant advances the following grounds of review:

   1. That the decision of the Refugee Review Tribunal was affected by jurisdictional error because the Tribunal did not afford me procedural fairness and was in breach of s 425 Migration Act in relation to my claim that I would be at risk of abduction because it was believed that my family had money.

   2. That the RRT fell into error by failing to consider the real difference between refugee criteria and complementary criteria and thereby failing to properly consider complementary criteria under s 32(2)(a) (SZRJX v Minister of Immigration and Citizenship and RRT)

   3. I request that a lawyer from the Court Legal Advice panel check my RRT decision for jurisdictional error

5. I also have before me the applicant’s affidavit filed on 7 November 2013 which supported an injunction application, which I dealt with on that day, restraining the Minister from taking action to remove the applicant from Australia until 5.00pm today. 

6. I received as an exhibit correspondence sent to the applicant dated 16 July 2012 containing an information sheet and a copy of the Tribunal decision. 

7. The applicant told me during the course of argument, and I accept, that he has made not less than five and probably six requests for ministerial intervention following the Tribunal decision.  All of those have been unsuccessful.  The final two requests were made with the assistance of Ms Marion Lee. The information sent to the applicant by the Tribunal with the Tribunal decision (which he acknowledged receiving) pointed out that if the applicant considered that the Tribunal decision was wrong at law he could seek judicial review in this Court.  That information also informed the applicant that the Minister might substitute a more favourable decision. 

8. It is plain that the applicant chose to seek ministerial intervention.  He has pursued that course in a remarkably determined way.  Unfortunately for him, none of those attempts have been successful.

9. It is only now, more than a year after the Tribunal decision, that the applicant seeks access to the Court to pursue judicial review.  In my view, the applicant’s pursuit of ministerial intervention provides an insufficient explanation for his delay in coming to court.  I am not persuaded that in those circumstances the Court should extend the time for the filing of his purported application.  Further, even if the applicant had been able to provide a sufficient explanation for his delay, his proposed judicial review application does not disclose an arguable case of jurisdictional error.

10. The application, as I have already noted, asserts a breach of s.425 of the Migration Act. It also asserts that the Tribunal fell into error in distinguishing between refugee criterion and complementary protection criterion. I see no substance in either assertion. The applicant tendered a document in argument today which I accepted as a submission. That goes to the merits of the Tribunal decision. His affidavit filed on 13 November makes allegations of misconduct by the Tribunal member in the course of the hearing. He asserts variously that he was called a liar and arrogant, that he was denied medication, that he was denied an adjournment and, further, that he was too sick to continue.

11. The Minister’s solicitor took me to various portions of the sound recording of the Tribunal’s hearing to test those assertions, to the extent that they could be tested.  I accept that at one point in the hearing the Tribunal member expressed disbelief about the applicant’s claims and suggested that he was lying.  The member might have used different words, but the point of his intervention was to make clear to the applicant that he was not believed.  I also accept that the applicant at one point asked for an aspirin.  None was available.  The applicant asserts that the Tribunal member said that the Tribunal was not a chemist.  That could not be verified from the sound recording.

12. I also accept that hearing ran for in excess of two hours without a break.  There was no indication, however, that the applicant requested a break.  He now says that he did not know he could make a request, but it appeared today and from the sound recording that the applicant was generally assertive in pursuing his claims.  Indeed, at one point the Tribunal presiding member suggested that he was being light hearted and not serious about the Tribunal hearing.  The applicant also expressed concern about comments made by the presiding member about his mother being over protective.  That was put forward by the member as a hypothetical proposition on the one hand with the alternative being that the applicant was not telling the truth.

13. Viewed in the context of the hearing as a whole and the comprehensive description of it in the Tribunal’s reasons, I am not persuaded that anything occurred which would support an allegation of bias, whether actual or apprehended or otherwise would support an allegation of a breach of s.425.

14. Neither am I persuaded that there is any substance to the assertion that the Tribunal misunderstood or misapplied the distinction between refugee protection and complementary protection.

15. For all of the above reasons, I will dismiss the application for an extension of time.  It follows that the purported judicial review application is incompetent.

16. In consequence of a refusal of an extension of time the Minister seeks an order for costs fixed in the sum of $2,800. 

17. The applicant did not wish to make submissions on costs, but told me that he had self-harmed in the past and showed me a scar on his arm.  I understood him to be saying that he might self-harm again.  That is an issue of concern which I have alerted the Minister’s solicitor to, and I note that officers from the Detention Centre at Villawood were in attendance at court today.

18. The costs sought by the Minister include costs of the hearing on 7 November 2013 when I granted a temporary restraining order preventing the Minister from taking steps to remove the applicant from Australia until today.  The Minister seeks costs of that proceeding as well as today as costs in the cause.  I am minded to deal with the two proceedings separately.  The applicant was successful on 7 November in obtaining an injunction.  He was unsuccessful today in obtaining an extension of time for his judicial review application.

19. In terms of the work required on behalf of the Minister for today’s hearing, I am persuaded that costs of not less than $2,000 have been reasonably and properly incurred on behalf of the Minister.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

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

Associate: 

Date: 26 November 2013