SZTRV v Minister For Immigration and Anor (No.2)

[2014] FCCA 2807

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTRV v MINISTER FOR IMMIGRATION & ANOR (No.2) [2014] FCCA 2807

Catchwords:
MIGRATION – Application for extension of time – substantive application seeking review of decision of Refugee Review Tribunal – no satisfactory explanation for the delay – not in the interests of the administration of justice to extend time – extension of time refused.

Legislation:

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

SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
SZNZU v Minister for Immigration [2010] FMCA 197
SZNZI v Minister for Immigration & Anor [2010] FMCA 57
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
NABE  v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Applicant: SZTRV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3187 of 2013

Judgment of: Judge Nicholls

Hearing date: 16 July 2014

Date of Last Submission: 16 July 2014

Delivered at: Sydney

Delivered on: 16 July 2014

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: Ms N Blake of Clayton Utz

ORDERS

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

2. The applicant pay the first respondent’s costs set in the amount of $3,326.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3187 of 2013

SZTRV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) on 19 December 2013, by which the applicant applies to extend the time within which to make an application to this Court pursuant to s.476 of the Act, to seek review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 25 September 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

1. A bundle of relevant documents is in evidence before the Court (“the Court Book” ‑ “CB”). The following background may be ascertained from those documents.

2. The applicant is a citizen of Fiji (CB 5). He applied for a protection visa on 12 July 2011 as a member of his former wife’s family. The applicant subsequently lodged an application in his own right on 15 December 2011. I note that ultimately the Tribunal proceeded on the basis that the application for the protection visa had been made on the first date. It therefore treated the documents submitted on the later date as being additional information lodged in support of his claims to protection.

3. In any event, the Minister’s delegate refused the grant of the visa on 9 March 2012. The applicant applied for review to the Tribunal on 3 April 2012. The Tribunal affirmed the delegate’s decision on 25 September 2013.

4. As stated above, the applicant sought to make an application for review to this Court on 19 December 2013. Such applications must be made within 35 days of the date of the Tribunal’s decision. That is made clear in s.477(1) of the Act. In the circumstances, therefore, the application should have been made on or before 30 October 2013. The application was not made on or before that date. The applicant sought to make his application some seven weeks later.

5. The issue before the Court today is whether it is in the interests of the administration of justice to extend time pursuant to s.477(2) of the Act. There is no exhaustive list of the elements relevant to such a consideration (SZMFJ v Minister for Immigration & Anor [2009] FMCA 771, SZNZU v Minister for Immigration [2010] FMCA 197, SZNZI v Minister for Immigration & Anor [2010] FMCA 57). However, what appears to be of relevance today in that consideration, is whether the applicant has provided any satisfactory explanation for the delay, and whether the proposed substantive application has merit such that it is in the interests of the administration of justice to grant the extension of time.

Before the Court

1. Before the Court today the applicant appeared in person.  He was assisted by an interpreter in the Hindi language.  Ms N Blake appeared for the Minister.

2. The application for an extension of time was set down for hearing today by an order made on 11 March 2014. At that time I also made orders giving the applicant the opportunity to file any amended application for an extension of time, and any proposed amended substantive application, and any evidence by way of affidavit.

3. I note that the matter had been previously set down for directions on 19 February 2014. The applicant did not appear at that time. The applicant filed an Application in a Case (“AIC”) on 20 February 2014 to reinstate the matter. I granted the AIC on 11 March 2014, at which time the other orders, referred to above, were made. The only document subsequently filed by the applicant is a document purportedly his affidavit of 5 May 2014 which states:

   “I submit the transcript which I rely on in the court.”

4. Annexed to that, apart from a number of documents which appear to relate to a “Bridging Visa E” that had been granted to the applicant, there then purports to be a transcript of the Tribunal hearing. When I asked the applicant whether he wanted the Court to read the affidavit he said “yes”, but was unable to explain how the affidavit related to any of the grounds of the proposed substantive application that he seeks to put before the Court. Nor, importantly, does the affidavit make any reference to, or provide any explanation for, the delay in making his application to the Court.

5. In relation to the transcript, the Minister submitted that its relevance to a fact in issue in these proceedings is not clear. The Minister also drew attention to the obvious evidentiary deficiencies in the affidavit itself, including the provenance of the transcript. That is, how it was drafted, and who drafted it.

6. Before the Court the applicant explained that he had been assisted in making his application to the Court and in the provision of the affidavit to the Court, which included the transcript. He said that this assistance had been provided by a “friend” of one of his relatives. He said that this person’s name was “Mr Toufic Laba Sarkis”. I note that Mr Toufic Laba Sarkis has been mentioned to the Court on a number of occasions by applicants, in matters of this nature, as a “friend” who has assisted them. I note that to the best of my knowledge Mr Toufic Laba Sarkis is not lawyer.

7. In all, it is not clear what the applicant sought to achieve by providing the transcript of the Tribunal hearing to the Court. The applicant was unable to give any indication of its relevance to a fact in issue (see further below).

Application for Extension of Time

1. The application for the extension of time provides no grounds to support the extension of time. That is, there is no attempt in the application itself to provide any grounds in support, or in expression of, that application for the extension of time. Further, and despite the opportunity to provide relevant evidence which I gave to the applicant by orders made in March of this year, there is nothing from the applicant in an evidentiary context to explain the delay. Nor did he make any such submissions in relation to this point before the Court today.

2. When prompted before the Court, the applicant said that he had attempted to file an application to the Court “earlier”, however, he had gone to the “wrong court”, and by the time this “was recognised” he was out of time. The difficulty, apart from the fact that that was given as submissions from the bar table, is that he identified that other Court as being the “Federal Magistrates Court”. That is this Court in an earlier legislative guise. What the Court is left with is that the applicant’s explanation, even if it is accepted at face value, is, as the Minister accurately described it today, confused and deficient in providing any satisfactory explanation for the delay in making the application for judicial review.

3. Even if I were to regard the applicant’s submission as having been put to the Court in a proper evidentiary context, I cannot accept it as providing a satisfactory explanation for the delay. The delay is over seven weeks. There is nothing in the one matter that the applicant put to the Court today to regard it as satisfactorily explaining the delay, and supporting the application for an extension of time. In any event, and further, as the Minister submits, the extension of time should be refused on the basis that the grounds in the proposed substantive application are without merit, and it would not be in the interests of the administration of justice to extend time simply to dismiss the application.

The Merits of The Proposed Substantive Application

1. The grounds of the proposed substantive application are in the following terms:

   “The Refugee Review Tribunal failed to understand my fear of persecution.

   The Tribunal overlooked my fear which is genuine.

   I will put further grounds when I receive my file. I also need legal advice.”

2. On the matter of “further grounds” as they appear above, as I said, the applicant was given a reasonable opportunity to amend both the proposed substantive application and his application for an extension of time. The applicant has filed nothing further in this regard. As to the matter of legal advice the applicant has obviously sough and accessed some “non-legal” support. In any event he has had a reasonable opportunity to have sought and obtained legal advice.

3. As I said earlier, the applicant’s affidavit purported to provide a transcript of the Tribunal hearing. The applicant was unable to explain its relevance to the “grounds”. Nor is that relevance otherwise apparent. Leave to read that affidavit is therefore rejected. In any event, there is no apparent inconsistency between what is in the transcript proffered by the applicant and the Tribunal’s account of what it said occurred at the hearing, as set out in the Tribunal’s decision record ([30] at CB 78 to [55] CB 84).

4. The applicant told the Court today that he wanted the Court to look “favourably on his application”. What he subsequently said, however, made it clear that he was referring to his application for the protection visa, and not the application for the extension of time, or for that matter, the proposed substantive application.

5. In this regard, the applicant stated that he feared persecution if he were to return to Fiji, he feared being killed, and that he had problems from “the side of his wife” [in context his ex-wife]. It is clear from this that the reason that the applicant has come to this Court is to press his claims for protection, not to assert any legal error on the part of the Tribunal. It is trite to say that the Court cannot substitute its own findings for those of the Tribunal.

6. I did consider, however, whether the grounds of the proposed substantive application may have otherwise assisted the applicant. I note by way of background that the Minister’s written submissions summarise the applicant’s claims before the Tribunal and the Tribunal’s findings. In my view the submissions are a fair summary of the relevant material in the Court Book and for the sake of convenience, I adopt those submissions for the purposes of this judgment

   
   

   (see [9] – [12] of the Minister’s written submissions):

   “[9] The Applicant's protection claims are detailed in [27] to [56] of the Tribunal's decision record (decision record).

   [10] In summary, the Applicant claims to fear harm in Fiji because of clashes between himself and his wife’s manager relating to the manager’s sexual abuse and rape of the Applicant’s wife. The Applicant fears that his wife's manager or people associated with him will harm or kill him. The Applicant further claims economic hardship in Fiji.

   Tribunal’s decision

   [11] The Tribunal’s findings may be summarised as follows ([57] to [71] of the decision record):

   (a) the Tribunal did not accept that the Applicant was credible in light of inconsistencies in his evidence as provided in a tourist visa application and orally before the department and Tribunal ([60] to [63] of the decision record);

   (b) the Applicant’s primary motivation for coming to Australia was to visit his sick brother ([61] of the decision record);

   (c) the Applicant did not depart Fiji because he feared he would be harmed by any one man or person ([61] of the decision record);

   (d) the Applicant’s wife entered into a relationship with her manager and this angered the Applicant ([63] of the decision record);

   (e) the Applicant has not suffered any harm from the manager, nor has he harmed the manager while in Fiji ([64] of the decision record);

   (f) the Tribunal did not accept as credible the Applicant’s claim that:

   (i) the manager assaulted the Applicant’s wife ([64) of the decision record);

   (ii) there have been clashes with the manager ([64] of the decision record); and

   (iii) the manager is associated or involved with gangs in Fiji ([62] of the decision record); and

   (g) the Applicant will not suffer significant economic hardship if he were to return to Fiji ([64] of the decision record).

   [12] The Tribunal was accordingly not satisfied that the Applicant was a person in respect of whom protection obligations were owed and affirmed the Delegate’s decision.”

7. The references in the purported grounds of the substantive application to such phrases as “failed to understand my fear” and “overlooked my fear” may, on their face, be understood as assertions that the Tribunal misconstrued a claim and, therefore, did not properly deal with the claim, or that the Tribunal did not deal with the claim made (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1, and Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244).

8. Such assertions may ultimately be revelatory of jurisdictional error in certain circumstances. However, the applicant’s case does not present such circumstances. There is nothing that I can see in the material before the Court to suggest that the Tribunal failed to understand any aspect of the applicant’s claims, or overlooked any claim.

9. What has not been understood or accepted by the applicant, and what must be understood, is that the Tribunal found that the applicant’s claims were not credible. This was variously based on inconsistencies in the applicant’s evidence, inconsistencies between his evidence and other material before the Tribunal, and the vague claims made by the applicant lacking detail in circumstances where such detail was to be reasonably expected.

10. The Tribunal’s findings were all reasonably open to it to make on what was before it (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). It gave reasons probative of the evidence before it. In the circumstances, through his grounds, the applicant really asks this Court to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). In this light, the grounds lack merit such as to argue for the extension of time.

11. As I noted earlier (at [18]) the grounds also assert that the applicant would put “further grounds” when he received his file. Given that the statement of this intention was made at least as at 19 December 2013, that is the time that he filed his application with the Court, the applicant has had a reasonable opportunity since then, in addition to the opportunity specifically provided by the Court’s orders, to have filed any such grounds. It is now some seven months after the making of his application to the Court. 

12. It is open to assume, in the absence of any explanation from the applicant, that the reference to “my file” may have been a reference to the Court Book. In this regard, I note that that bundle of relevant documents was filed by the Minister on 28 March 2014.  The applicant did attempt to file some evidence after that date, that is the evidence of the transcript to which I have referred above (see at [19]). It can, therefore, be said that the applicant was aware of the opportunity available to him to file further material, but no further grounds have been proffered by him.

13. As I also said earlier, the only matter that the applicant was able to raise in support of his application today related to the merits of the Tribunal’s decision. I also note for the sake of completeness that although the transcript is not in evidence, I have had the opportunity to read the transcript and there is nothing on its face, even if it had been admitted into evidence, that can be said to have assisted the applicant with any of his grounds.

Conclusion

1. The applicant has not provided a satisfactory explanation for his delay in coming to this Court. The proposed substantive application for judicial review of the Tribunal’s decision was made to this Court out of time. It is in that circumstance not competent.  That application does not assert or identify any legal error capable of review by this Court. Nor is any jurisdictional error otherwise apparent on the evidence before the Court. In all the circumstances the application for an extension of time should be refused. I will make the appropriate order.

2. In my view it is also appropriate that an order for costs be made in this matter today. At best the applicant put to the Court that he is unable to work because he does not have permission to do so. From that, I infer that he lacks funds. However neither the lack of funds nor the lack of permission to work, are adequate reasons such as to not make the order for costs. As to the amount, I am satisfied that the amount the Minister seeks is a reasonable amount in all the circumstances. I will, therefore, make that order in the amount sought by the Minister.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  5 December 2014