SZTSU v Minister for Immigration

[2014] FCCA 1697

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTSU v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1697

Catchwords:

MIGRATION – Review of decision by Refugee Review Tribunal (RRT) – application to extend time – no merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.05(2)(c)

Migration Act 1958 (Cth), ss.36(2A), 424A, 424A(3)(a) , 477(1), 477(2)

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
SZMFJ v Minister for Immigration & Anor [2009] FMCA 771

SZQGO v Minister for Immigration and Citizenship [2012] FCA 177

Applicant: SZTSU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3273 of 2013

Judgment of: Judge Manousaridis

Hearing date: 17 July 2014

Delivered at: Sydney

Delivered on: 31 July 2014

REPRESENTATION

Applicant in person.

Solicitors for the Respondents: 

Ms B Griffin

Australian Government Solicitor

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 applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3273 of 2013

SZTSU

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) of the Act 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 the decision of a delegate of the first respondent (Minister) refusing to grant the applicant a protection visa.

2. The application is necessary because the application for judicial review was filed in this Court on 31 December 2013 but the decision of the Tribunal of which the applicant seeks judicial review was made on 25 March 2013, some 245 days before the application was filed.

The hearing

1. At the commencement of the hearing the applicant, who is not legally represented, applied for an adjournment. After hearing the application for an adjournment, I decided against granting an adjournment, and delivered separate reasons for my refusing to grant the adjournment.

2. When I asked the applicant whether he wished to make any submissions in support of his application for an extension of time, the applicant asked for a further adjournment. He said he wanted time to consult a lawyer. He said he had spoken to a lawyer but he would not take his case. I did not allow the adjournment. The matter was set down for hearing on 7 March 2014. In my opinion, the applicant had sufficient time to obtain legal representation.

3. I then invited the applicant to make submissions in support of his application. The only submission he made was to repeat the substance of ground 1 of his application for review, which I consider later in these reasons.

Principles for extending time under s.477(2)

1. Under s.477(2) of the Act, the Court may order the extension of the 35 day period as the Court considers appropriate if two things are satisfied. First, the application for such order has been made in writing to the Court, specifying why the applicant considers it is necessary in the interests of the administration of justice. Second, the Court is satisfied it is necessary in the interests of the administration of justice to make such order.

2. In SZMFJ v Minister for Immigration & Anor[1] Nicholls FM (as his Honour then was) identified a non-exhaustive list of matters that may be relevant in considering whether it is necessary in the interests of justice to order an extension of time. These matters are the extent of the delay and the reason for the delay, whether there is any merit in the application, whether there is any prejudice to the respondents if an extension is granted, impact on the applicant of an extension of time not being granted, and the interests of the public at large. In most cases, the most significant factor will be whether there is any merit in the claim the applicant wishes to make if an extension of time were granted. As was said by Murphy J in SZQGO v Minister for Immigration and Citizenship in the context of extending time for making an appeal, the “Court should not exercise its discretion to extend time to bring an appeal, even for a short period, if an appeal has no prospect of success”.[2]

   [1] [2009] FMCA 771 at [44]

   [2] [2012] FCA 177 at [29]

3. When considering an application for an extension of time under s.477(2) of the Act, it is necessary to bear in mind r.44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) which requires that any application for an extension of time be supported by an affidavit explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.

4. I will first consider whether there is merit in the application for judicial review the applicant proposes to bring if an extension of time is granted. And to be in a position to determine that question, it will be necessary to set out the grounds on which the applicant applied for a protection visa, and the grounds on which the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

Claims for protection

1. The asserted facts on which the applicant, a national of Fiji, sought a protection visa were as follows. On 20 March 2011 the applicant was assaulted and robbed by four indigenous Fijian men on his way home from his work at a bakery; the assault was race related; as a result of the assault he felt constantly under threat; the applicant’s race, appearance and religion as a Fijian Indian Hindu meant he was at risk of harm generally by indigenous Fijians; as an Indian Fijian he was not treated fairly by the police or the military, and he was not protected by the authorities; the military detained and assaulted people who exercised freedom of speech about the government and that the military abused human rights, although he did not claim this had occurred to him.[3]

   [3] CB[52]

Tribunal’s reasons

1. The Tribunal accepted the applicant was robbed and assaulted, and that he was assaulted by indigenous Fijians, and there was an element of racism in the attack.[4] The Tribunal also accepted that the applicant has a fear of being assaulted again, but found this was not well-founded because the applicant had not been assaulted again, and the assault, therefore, appears to have been an isolated incident.[5]

   [4] CB116, [72]-[73]

   [5] CB116, [74]

2. The Tribunal also accepted that in the past a small number of Hindu temples had been damaged, but the evidence did not point to Hindus being subjected to attacks in recent years. The Tribunal was satisfied the applicant could practice his religion as he wishes.[6]

   [6] CB116, [76]

3. The Tribunal was not satisfied that military personnel will harm the applicant because of his race, appearance, and religion.  The Tribunal was satisfied that, although there is still discrimination in society against Fiji Indians that had subsided under Prime Minister Bainimarama.[7]

   [7] CB116, [79]

4. For those reasons, the Tribunal found that the chance of the applicant’s facing persecution for a Convention reason was remote. The Tribunal also concluded it was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk he will suffer significant harm within the meaning of s.36(2A) of the Act.[8]

   [8] CB117, [83]

Merits of proposed grounds of review

1. The application contains three grounds of review. The first ground is that the Tribunal “made a mistake that it did not consider that the applicant would suffer harm if he returns to Fiji despite that it accepted the applicant’s fear for persecution in Fiji”. The application then asserts a number of matters in support of the conclusion that the applicant will be harmed if he is returned to Fiji.

2. It appears the applicant wishes to claim the Tribunal ought to have upheld the applicant’s claim because the Tribunal was satisfied the applicant had a genuine fear of harm. That, however, cannot disclose any jurisdictional error. It is well-established that the expression “well-founded fear” as used in Article 1A of the Convention Relating to the Status of Refugees has both a subjective and an objective element. As was said by Dawson J in Chan v Minister for Immigration and Ethnic Affairs, for there to be a well-founded fear there “must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.[9]

   [9] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at page 396

3. Ground one otherwise discloses no arguable case of jurisdictional error by the Tribunal.

4. The second ground of review is that the Tribunal “failed to provide the applicant the reason or part of the reason which it considered to reject the applicant’s review application”. The wording of this ground appears to pick up some of the wording of s.424A of the Act. Whether or not the person who drafted this ground intended to rely on s.424A, the ground discloses no arguable case of jurisdictional error. The Tribunal rejected the applicant’s claim because it found the applicant’s fear was not well-founded. To the extent the Tribunal relied on country information, it was not obliged to provide that information to the applicant under s.424A of the Act because it is information of the sort described in s.424A(3)(a) of the Act, namely, information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”.

5. The third ground of review is as follows:

   The Tribunal failed to comply with the Migration Act 1958. The Tribunal accepted the applicant’s claim in a way that it can reject the claim. The Tribunal’s grounds for rejection were not evidenced by any references or documents. The Tribunal willingly rejected the claim. The Tribunal was not fair and just according to part 7 of the Act 1958. The Tribunal used excessive power to reject the applicant’s review application. The Tribunal did not act according to substantial justice and the merits of the case. The Tribunal did not consider the circumstances of the applicant and his genuine claim for protection in Australia for his fear for his life. The Tribunal made procedural mistakes.

6. This ground appears to make three complaints: the Tribunal was biased against the applicant; the Tribunal did not consider or genuinely consider the applicant’s claims; and the Tribunal did not accord procedural fairness to the applicant. None of these grounds are reasonably arguable.

7. The Tribunal’s reasons for decision show the Tribunal understood and considered the applicant’s claims. The Tribunal set out the claims the applicant made, the documentary evidence the applicant submitted to the Tribunal, and the evidence the applicant gave before the Tribunal. The Tribunal gave reasons for not being satisfied the applicant had a well-founded fear of persecution. And there is nothing in the reasons for decision that suggests the Tribunal did not provide the applicant with an opportunity to present his case.

8. For these reasons, I am of the opinion there is no merit in the application the applicant proposes to bring if an order extending time were to be made under s.477(2) of the Act.

Other factors

1. The applicant stated in the application the reasons he did not file his application for review within the 35 day period provided for by s.477(1) of the Act. The reasons are the applicant does not know about the legal system in Australia; he does not have money to hire a lawyer; the applicant was suffering from mental trauma and distress which prevented him from making a decision about going to court; the applicant wishes to have an opportunity to present his case; the applicant thinks the Tribunal misunderstood his case; and the applicant thinks he has a good case.

2. With one exception, none of these constitute an adequate explanation for the delay. The exception is the contention that the applicant suffered from mental trauma and distress. The evidence on which the applicant relies is a report that is in the court book. The report is dated 26 June 2012, and details symptoms that are consistent with mental trauma and distress. The report concludes that the applicant was not capable of undertaking paid employment for at least three months. In my opinion, as there is no further report of the applicant’s conditions, it is not possible to infer from this report that the applicant suffered from the condition described in the report between 25 March 2013 and 31 December 2013. Further, the fact that the applicant lodged his application for review to the Tribunal on 25 September 2012, and appeared before the Tribunal on 7 March 2013 suggests that the conditions described in the report either ceased or were not of a nature that prevented the applicant from doing that which was necessary to file an application for review of the Tribunal’s decision within the 35 day period provided for by s.477(1) of the Act.

3. If I do not grant an extension, the applicant will, in one sense, suffer prejudice in that the Court will not deal with his application for review. This prejudice, however, is only apparent because, in my opinion, the applicant’s claims have no merit and for that reason would be dismissed in any event.

Conclusion and disposition

1. In my opinion, it is not necessary in the interests of the administration of justice that I grant the applicant an extension of time for commencing his application for judicial review of the Tribunal’s decision. I base my opinion solely on the ground that the claims the applicant wishes to make are without merit. Had I formed the view the applicant’s claims had merit, I may have exercised the discretion conferred by s.477(2) in favour of extending the 35 day period provided for by s.477(1) of the Act.

2. Accordingly, I propose to dismiss the application and order that the applicant pay the first respondent’s costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 31 July 2014