SZTSZ v Minister for Immigration & Border Protection - [2014] FCCA 298

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTSZ v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR

[2014] FCCA 298

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 the administration of justice to extend time – application for extension of time refused.

Legislation:
Migration Act 1958 (Cth), ss.5, 36, 65, 417, 477

Cases cited:
Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 34
Singh v Minister for Immigration and Citizenship [2013] FCA 813
SNSYE v Minister for immigration and Citizenship [2010] FCA 500
SZRNS v Minister for Immigration and Citizenship [2013] FCA 751
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR 520
Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 21; (2004) ALR 198
SZRNS v Minister for Immigration and Citizenship [2013] FCA 751

Applicant:

SZTSZ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 16 of 2014

Judgment of:

Judge Emmett

Hearing date:

6 February 2014

Date of Last Submission:

6 February 2014

Delivered at:

Sydney

Delivered on:

6 February 2014

REPRESENTATION

The applicant appeared in person

Solicitor for the Respondents:

Ms Dale Watson
(Australian Government Solicitors)

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY

SYG 16 of 2014

SZTSZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

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 6 January 2014, was filed 112 days from the date of the decision sought to be reviewed. 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:
(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 -the date of the written decision under that subsection; or
(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
(c) in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal-the date of the oral decision; or
(d) in any other case-the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

(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.”

The decision of the Refugee Review Tribunal (“the RRT”) is dated 16 September 2013. In the circumstances, the applicant’s application for judicial review to this Court, filed on 6 January 2014, is some 77 days in excess of the 35 day time limit provided for in s.477(1) of the Act.
However, pursuant to s.477(2) of the Act, this Court may extend the 35 day period if an application for that order is made in writing to the Court specifying why the applicant considers it is necessary in the interests of justice to make the order, and the Court is satisfied that it is necessary in the interests of justice to make the order extending the time period.
The applicant filed on 6 January 2014 his affidavit sworn 4 January 2014 annexing the decision record of the RRT and deposing as to his explanation for his delay in seeking judicial review of the decision.
The substance of the applicant’s explanation is that his representative recommended and advised him to apply for Ministerial intervention following his unsuccessful outcome from the RRT.
The applicant’s application for an extension of time is opposed by the first respondent on the basis that the explanation offered by the applicant for the delay is insufficient and that, in any event, there is no utility in extending time to the applicant on the basis that the applicant’s application for judicial review does not have sufficient prospects of success such that it would be in the interests of the administration of justice to extend time to the applicant.
The principles relevant to consideration of whether to grant or dismiss an application for extension of time are well established. Those principles are the length and explanation of the delay (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 34); the presence or absence of prejudice to each party (see Singh v Minister for Immigration and Citizenship [2013] FCA 813 at [15]-[18] per Besanko J); and the merits of the proposed appeal (see SNSYE v Minister for immigration and Citizenship [2010] FCA 500 at [16] per Katzmann J).
The RRT’s decision record discloses the following:
i.The applicant is a citizen of Fiji.
ii.He emigrated from Fiji to Australia in 1996 and married a woman of aboriginal descent in 2005, with whom he has two children.
iii.Shortly after the marriage, the applicant applied for a partner visa, which was refused. He then applied to the Migration Review Tribunal for review.
iv.In 2005, the applicant was arrested on criminal charges and held in detention while the matter was before the Courts. The charges were eventually dismissed, but while the applicant was detained he lost track of his Migration Review Tribunal proceeding and “did not understand the outcome.”
v.In 2011, the applicant and his family moved to Corowa, New South Wales, mistakenly believing that he held a bridging visa in connection with his partner visa application.
vi.In April 2013, the applicant was convicted of assaulting his wife and sentenced to 6 weeks’ imprisonment. Upon release, the applicant was informed that he had not held a valid visa since 2010, whereupon he was taken into immigration detention.
On 20 May 2013, the applicant applied to the Department of Immigration for a Protection (Class XA) visa.
On 30 July 2013, a delegate of the first respondent refused to grant the visa (“the Delegate”).
On 1 August 2013, the applicant applied to the RRT to review the Delegate’s decision. He attended a hearing before the RRT on 12 September 2013.
The applicant’s claims before the RRT in relation to his fear of harm in Fiji were threefold:
a)The applicant claimed that he would be unable to find work to support himself. Fiji is suffering economic hardship with high rates of unemployment, even for those with tertiary qualifications who have lived in Fiji their entire lives. The applicant, having not lived in Fiji for seventeen years, being no longer fluent in the language and lacking any proper qualifications would have great difficulty finding work. Further, the applicant’s father is elderly and has been hospitalised with a heart condition, his mother lives in the United States and his brothers are unemployed and unable to support him. The agricultural land available to his mataqali (social land-holding unit) is small and overcrowded and he would not be able to find employment there.
b)Crime rates in Fiji are high, and the applicant could be targeted by criminals who would see him as someone who would have wealth, having lived overseas for a long period.
c)If the applicant were to return to Fiji, there would be no possibility of him supporting his family or taking them with him.
The RRT considered the applicant’s claims, however found that there was not a real chance that the applicant would suffer serious harm for a Convention reason in Fiji for the reasons he claimed. The RRT found that the applicant did not have a well-founded fear of persecution should he return to Fiji either now or in the foreseeable future.
The RRT concluded that the applicant’s case raised compassionate circumstances and asked that it be referred directly to the first respondent pursuant to s.417 of the Act, but otherwise affirmed the Delegate’s decision not to grant a protection visa.
The applicant was unrepresented this morning. I explained to the applicant the considerations that would critical in considering whether to extend time would be his explanation for his delay and the utility in extending time to him.
A s stated above, the applicant’s explanation for his delay in seeking judicial review was his decision to pursue Ministerial intervention following the affirmation by the RRT of the decision under review refusing the applicant a protection visa.
The applicant was aware of the options that he had and chose a particular course, which he was perfectly entitled to do. That course was to seek ministerial intervention pursuant to s.417 of the Act.
However, it is well established that an applicant’s conduct in making an appeal to the Minister, under s.417 of the Act, is indicative of a decision to abandon a course that would seek to challenge the decision of the RRT on grounds made available by the Act or otherwise at law (see M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR 520 at [24]; Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 21; (2004) ALR 198 per Goldberg J at 202).
Further, there is a significant public interest in the finality of administrative decisions such as the decision the Court is being asked to review, and the delay caused by seeking ministerial intervention reinforces the propriety of a proceeding having been brought to an end.
In the circumstances, the applicant’s explanation provided to this Court for his delay is not a satisfactory explanation of the delay.
In considering the utility of the applicant’s application for judicial review I note the applicant’s grounds for judicial review, filed 6 January 2014, as follows:
“1. The RRT denied me procedural fairness when it made its decision on the 16 of September 2013, giving that I will suffer harm on account of criminal violence and will be unable to find employment and this is ultimately discrimination.
2. The RRT misconstrued section 36(2)(aa) of the Migration Act. Giving the fact that I satisfy the [sic] and meet the definition to be granted complementary protection visa as defined by the Act.
3. The RRT failed to consider the best interests of my children as a primary consideration in regards to the impact that my separation will cause them. This is a denial of procedural fairness.”
The applicant was invited to say whatever he wished in support of each of the grounds of his application. However, the applicant made no relevant submission on the basis that he is not a lawyer and was hoping to have legal advice.
A fair reading of the RRT’s decision record discloses that the applicant had the assistance of a migration agent in his review application and who made submissions in relation to the applicant’s review application. The migration agent also attended the RRT hearing where both the applicant and his wife gave evidence. The RRT accepted that the applicant may experience difficulties in finding employment in Fiji but found that any economic difficulties were similarly faced by every other Fijian citizen.
The RRT also accepted may be apprehensive about the level of crime in Fiji. However, the RRT was not satisfied that the applicant would be targeted or harmed for any reason so defined in s.5(1) of the Act in reference to article 1A(2) of the 1951 Convention relating to the Status of Refugees (“Convention Reason”). The RRT concluded that the applicant’s fears of persecution for a Convention Reason in Fiji are not well founded.
The applicant’s assertion of procedural fairness in Ground 1 is entirely unsupported by particulars, evidence or submissions. There is nothing on the face of the RRT’s decision record that there has been a denial of procedural fairness.
In relation to Ground 2, the RRT also considered whether the applicant met the complementary protection criterion in s.36(2)(aa) of the Act, but found that he did not. In particular, the RRT considered the applicant’s claim that being removed from his family would constitute serious harm. The RRT applied the Federal Court decision in SZRNS v Minister for Immigration and Citizenship [2013] FCA 751 and concluded that it would not. No error has been identified by the applicant as to the manner in which or the result of which the RRT considered complementary protection and none is apparent on the face of the RRT’s decision record.
The RRT’s consideration of the applicant’s claims, including complementary protection, appears to be orthodox. The RRT identified at the outset the relevant law that it was required to consider in deciding whether or not the applicant had a well-founded fear of persecution in Fiji for the reasons claimed.
In relation to Ground 3, it is apparent from the RRT’s decision record that the RRT was aware of and considered the impact of its decision on the applicant’s family. However, it is well established that it is for an applicant to satisfy the RRT, being the relevant decision-maker, that the applicant meets the criteria for being a refugee. As stated in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]:
“…The proceedings before the [RRT] are inquisitorial and the [RRT] is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The [RRT] must then decide whether that claim is made out.”
Section 65(1)(b) of the Act mandates that if the RRT, as the relevant decision-maker, is not so satisfied the applicant must be refused a protection visa.
There is nothing to suggest that the RRT’s findings and conclusions were not open to it on the evidence and material before it and for the reasons it gave.
Whilst I make no final decision in relation to whether the RRT’s decision was affected by jurisdictional error, there is no error apparent on the face of the RRT’s decision record that would appear to go to its jurisdiction and the applicant has been unable to identify any such error.
The grounds of the applicant’s application are more in the nature of a disagreement with the findings and conclusions of the RRT thereby inviting merits review, which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
In the circumstances, I am satisfied that the applicant’s substantive application for judicial review of the RRT’s decision has insufficient prospects of success such that it would be in the interests of justice to extend time to the applicant.
Accordingly, the applicant’s application for an extension of time should be refused with costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 6 February 2014