SZTLZ v Minister for Immigration & Border Protection

[2014] FCCA 262

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTLZ v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 262

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Whether it is in the interests of the administration of justice that time be extended to the applicant to seek judicial review of a decision of the Refugee Review Tribunal – whether the applicant’s explanation for the delay is satisfactory – whether the grounds of judicial review have sufficient prospects of success such that it is in the interests of the administration of justice that time be extended to the applicant to seek judicial review – application for extension of time refused.

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

Federal Circuit Court Rules 2001 (Cth), r.44.12

Applicant: SZTLZ

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

MIGRATION REVIEW TRIBUNAL

File Number: SYG 2691 of 2013

Judgment of: Judge Emmett

Hearing date: 18 February 2014

Date of Last Submission: 18 February 2014

Delivered at: Sydney

Delivered on: 18 February 2014

REPRESENTATION

The applicant appeared in person with the assistance of a Mandarin interpreter

Solicitor for the Respondent: Ms Michelle Stone
(DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2691 of 2013

SZTLZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The applicant seeks that time be extended to him to apply for judicial review of a decision of the Refugee Review Tribunal (“the RRT”) dated 18 September 2013. 

2. The applicant lodged his application for judicial review on 31 October 2013, some eight days beyond the 35 day time limit provided in s.477 of the Migration Act1958 (Cth) (“the Act”). 

3. Pursuant to s.477 of the Act, an application for judicial review of a decision of the RRT must be filed within 35 days of the date of the Migration decision. However, pursuant to s.477(2) of the Act, the Court may extend that 35 day period if the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

4. The first respondent opposes the grant of an extension of time on the basis that it is not necessary in the interests of justice to extend time to the applicant on the basis that the grounds of the application have not raised an arguable case for the relief claimed; and, that there is no utility in granting an extension of time having regard to the lack of prospects of the substantive application.

5. I explained to the applicant that the two matters critical to the Court’s consideration of whether time should be extended are his explanation for his delay and whether the grounds of his application for judicial review have sufficient prospects of success, such that it would be necessary in the interests of the administration of justice to extend time to the applicant.

6. The applicant’s explanation for his delay is that his agent did not contact him until 30 October 2013, however, there is no evidence to suggest that the applicant took any steps to contact the Department of Immigration and Border Protection or his agent in relation to the result or determination of his review application

7. In the circumstances, I find the applicant’s explanation for his delay to be unsatisfactory.

8. The grounds of the applicant’s application, filed on 31 October 2013, are as follows:

   “1. There exists a jurisdictional error. My protection visa application is true

   
   
   

   2. I was prosecuted by Chinese government. I really fear to go back to China

   
   
   

   3. I hope the Federal Circuit Court of Australia could consider our situation.”

   
   
   

9. The applicant was unrepresented before me today, although had the assistance of a Mandarin interpreter.  The grounds of his application were interpreted for him and he was invited to say whatever he wished in support. 

10. The grounds make bare assertions that do not disclose an error capable by this Court and, as stated, have no prospects of success. 

11. The applicant’s only complaint was that the Tribunal asked too many questions. Such a complaint, on its face, is not capable of establishing jurisdictional error. 

12. The applicant filed an affidavit affirmed by him on 30 October 2013 at the same time he filed his initiating application on 31 October 2013.  The affidavit attaches a copy of the RRT’s decision record.  On its face, the RRT’s decision record identified the relevant law, had regard to material placed before it at a hearing with the applicant;  explored the applicant’s claims with him at the hearing; and, put to the applicant concerns it had about his claims, noting his responses. 

13. The applicant claimed to fear persecution in China by reason of being a Falun Gong practitioner

14. The RRT was not satisfied by the applicant’s explanations for concerns it put to the applicant. The RRT found that the applicant was not a witness of truth and that the account of events, on which his protection claims are based, is false.

15. The RRT was not satisfied that the applicant was ever a Falun Gong practitioner in China or elsewhere and found that there was no credible evidence that there is a real chance the applicant would suffer serious harm for any Convention-related reason. 

16. The RRT considered whether the applicant was entitled to complementary protection, but was not satisfied that the applicant met that criterion given that the RRT did not accept that the applicant had every practised Falun Gong. 

17. There is nothing on the face of the Tribunal’s decision record to suggest that it is affected by jurisdictional error or that its findings were not open for the reasons given. 

18. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed and that if time was extended to the applicant, his application would be likely to be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) on the basis that the grounds of his application for judicial review do not raise an arguable case.

19. Accordingly, I am not satisfied that it is necessary in the interests of the administration of justice that time be extended to the applicant and the applicant’s application for an extension of time should be dismissed. 

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

Associate: 

Date:  20 February 2014