SZTUF v Minister for Immigration
[2014] FCCA 545
•25 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTUF v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 545 |
| Catchwords: MIGRATION – Application under s.477(1) of the Migration Act 1958 (Cth) for an extension of time – relevant principles – application for extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.91R, 425(1), 477(1), 477(2) |
| Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 10 SZNZI for Minister for Immigration & Anor [2010] FMCA 57 SZNZU v Minister for Immigration & Anor [2010] FMCA 197 |
| Applicant: | SZTUF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 125 of 2014 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 13 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 25 March 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitor for the First Respondent: | Ms B Griffin of Australian Government Solicitor |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The application for an extension of time filed on 17 January 2014 is refused.
The applicant is to pay the first respondent’s costs of and incidental to the application for an extension of time.
The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZTUF.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 125 of 2014
| SZTUF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 17 January 2014 the applicant, SZTUF, filed an application in this Court seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), RRT Case Number 1311741 dated 22 November 2013, refusing to grant the applicant a Protection (Class XA) visa. Section 477(1) of the Migration Act 1958 (Cth) required the applicant to file his application for judicial review within 35 days of the date of the Tribunal’s decision, being the “migration decision” for the purposes of s.477(1). The applicant filed his application in this Court 56 days after the date of the Tribunal’s decision and is, consequently, out of time by 21 days.
Section 477(2) of the Migration Act states:
MIGRATION ACT 1958 - SECT 477
Time limits on applications to the Federal Circuit Court
…
(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.
…
In the application before this Court the applicant has indicated that an extension of time is required under s.477 of the Migration Act. The ground in support of this application for an extension of time is stated as “Please see it in the affidavit”. The first respondent, the Minister for Immigration and Border Protection (the “Minister”), has indicated it opposes the granting of an extension of time for the applicant and, accordingly, the extension of time applicant was set down for hearing on 13 March 2014.
Hearing 13 March 2014
The application was first returnable before Judge Manousaridis of this Court on 11 February 2014 for first directions, where the following orders were made by his Honour:
1. The application for an extension of time under s 477 of the Migration Act 1958 is listed for hearing on 13 March 2014 at 2.15pm before Judge Lloyd-Jones in Court 6B, Level 6, John Maddison Tower, 88 Goulburn St, Sydney, Sydney, before Judge Lloyd-Jones.
2. The Applicant must file and serve any written submissions 14 days before the hearing.
3. The First Respondent must file and serve written submissions 7 days before the hearing.
4. Each party must have at the hearing copies of any cases or legislation to be relied upon for provision to the Court and the other party.
5. Liberty be granted to the parties to apply to the Court for further directions on three clear days’ notice.
The applicant elected not to file any written submissions in support of the extension of time application. The Minister filed written submissions on 5 March 2014. I have not made further attribution to these submissions as this would make these reasons unwieldy.
Applicant’s Submissions
In the applicant’s affidavit sworn 14 January 2014 the applicant stated in support of the extension of time application at [2]-[3]:
2. The [Tribunal] decision dated 18 Nov. 2013 is attached to this affidavit.
3. I make sincere apology to the Court for my making a great mistake. After I receiving the Campsie and call my friend about the he had collected my letter. He said he was very sorry for forgetting tell me that he had collected a letter and informing me of getting it. When I got it and asked a person to translate it to me. I saw that the letter of decision of [Tribunal] was sent on 22 Nov. 2013. I immediately prepare my application to your Court. I know the limited date was over. I beg your Court will permit my application. I will sincerely appreciate your consideration.
The applicant raised a number of oral submissions at the hearing of the extension of time application. He initially indicated he had not filed any written submissions and indicated he believed the Tribunal’s reasons were unfair, though this point was not elaborated on.
In respect of the applicant’s non-attendance at the Tribunal hearing, the applicant indicated the Tribunal did not notify him of the hearing by letter, and any letters he received did not specify the hearing date. He also stated that phone calls he received from the Tribunal were in English, which he was unable to understand and when he tried to call the Tribunal about his hearing, he was hung up on.
Minister’s Submissions
The Minister submits the applicant’s extension of time application does not meet either of the requirements in s.477(2) of the Migration Act.
In respect of s.477(2)(a), the applicant’s affidavit of 14 January (reproduced above at [6]) does not specify why the applicant considers it necessary in the interests of the administration of justice to grant an extension of time.
In respect of s.477(2)(b), the Minister submits the Court should not be satisfied it is necessary in the administration of justice to grant an extension of time. The words “in the administration of justice” are wide and general and they provide for a broad discretion. Two factors which have been considered relevant and critical to the exercise of this discretion are the explanation for the delay and the merits of the application (see SZNZI for Minister for Immigration & Anor [2010] FMCA 57 at [11]). It is submitted that consideration of these factors lead to the conclusion it would not be in the interests of the administration of justice to grant an extension of time.
In respect of the explanation for the delay in commencing proceedings, the Minister contends the applicant has not adequately explained it. The applicant, in his affidavit of 14 January 2014, appears to explain that a “friend” collected the notification of the Tribunal’s decision (the “Notification”) and forgot to tell him the Notification had been collected. The explanation is wholly inadequate. The “friend” is not identified, nor is any reason given as to why the applicant relied on that friend to collect the notification. Further, the applicant does not assert that the notification was sent to any address other than the last address supplied by the applicant in connection with his proceedings before the Tribunal. The applicant also does not specify the times at which he or his “friend” actually received the Notification. There is therefore no suggestion that the Notification was not delivered to the correct address within an acceptable period of time.
In respect of the merits of the applicant’s application, the Minister submits there are no reasonable prospects of success.
The Minister submits Ground 1 of the application simply re-asserts factual claims made by the applicant to the Tribunal, without particulars or any identification of any errors going to the Tribunal’s jurisdiction.
In respect of Ground 2, the Minister submits this ground alleges bias or an apprehension of bias on the part of the Tribunal. An allegation of bias must be supported by probative evidence: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 per Gleeson CJ and Gummow J at [69] and per Kirby J at [127]. The Minister submits there is no evidence capable of sustaining an allegation of bias in respect of the Tribunal’s decision. In particular, there is nothing in the reasons of the decision of the Tribunal that would enable the Court to draw the inference the Tribunal member approached its task other than in good faith, and with an open mind. Further, the insurmountable difficulty for the applicant is that he failed to appear at the hearing scheduled before the Tribunal: see Tribunal’s Decision Record at [6].
In respect of Ground 3 of the applicant’s application, the Minister submits it is merely an unsupported general assertion the Tribunal committed jurisdictional error.
In response to the applicant’s oral submissions, Ms Griffin, appearing for the Minister, indicated there was nothing on the face of the Tribunal’s decision to indicate there has been a breach of Part 7 of the Migration Act or any breach of procedural fairness, generally. In respect of notifying the applicant of the hearing before the Tribunal, Ms Griffin stated that, in fact, the Tribunal wrote to the applicant in accordance with s.425(1) of the Migration Act and, when no response was received, the Tribunal then attempted to make all reasonable enquiries with the applicant. The Decision Record at [5] and [30] states the steps taken by the Tribunal in respect of contacting the applicant and there is no reason why, if the applicant had had other documents translated to him by his friends, this could not have been done in respect of the Tribunal’s letters or phone calls.
The Minister submits for these reasons an extension of time should not be granted and the application dismissed with costs.
Consideration
The application seeking review of the Tribunal’s decision in respect of the applicant’s Protection visa application was filed 21 days out of time. Accordingly, an extension of time pursuant to s.477(1) of the Migration Act is required.
Her Honour Barnes FM (as she then was) stated in SZNZU v Minister for Immigration & Anor [2010] FMCA 197 at [51]-[54]:
51. There is no dispute that the first limb of s 477(2) has been met in this case by the written application for an extension of time in the application and amended application. Hence it is necessary to determine whether I am satisfied that it is “necessary in the interests of the administration of justice” to extend the time for making the application to review the decision of the Tribunal.
52. The notion “in the interests of the administration of justice” has been considered in many contexts (see the discussion in Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 at [28] per Lucev FM). Relevantly, in SZMFJ v Minister for Immigration [2009] FMCA 771, Nicholls FM (at [44]) identified a number of circumstances relevant to the second limb of s 477(2), being:
1. The extent of the delay and the reason for the delay.
2. Whether there is any merit in the application.
3. Whether there is any prejudice to the respondents.
4. The impact on the applicant.
5. The interests of the public at large.
6. The Court’s discretion itself.
53. In Fisher v Minister for Immigration and Citizenship (2007) 162 FCR 299 ; [2007] FCA 591, Stone J suggested (at [35]) that the concept “ … in the interests of the administration of justice” in s 477(2)(b) “ … would involve consideration not only of the reasons for not meeting the original time limit but also whether the application, were the extension of time to be granted, would have any prospect of success.” (Also see Metera v Administrative Appeals Tribunal and Another (2008) 105 ALD 18 ; [2008] FCA 1627 at [22]).
54. Similarly in SZNZI v Minister for Immigration Smith FM stated (at [11]):
The considerations which might bear on that discretion are unconfined. As with other powers to extend time and to waive defaults in relation to court procedures, two “critical” considerations are: “(1) that an explanation, reasonable to the circumstances, is provided for the party’s absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order” (see Kirby J in Allesch v Maunz [2000] HCA 40 ; (2000) 203 CLR 172 at [48]). Other considerations may come into play, including in my opinion, the implications of the appeals structure and alternative judicial review avenues (see Yu v Minister for Immigration [2009] FMCA 1161 at [40]–[41]). None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two “critical” considerations (see Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506 and 510). When reaching its ultimate conclusion, the Court must weight all of the relevant circumstances together by reference to the statutory criterion provided in s 477(2)(b), quoted above.
I accept that there has not been a lengthy delay in the applicant’s filing of his application to this Court and there would be little, if any, prejudice to the Minister. However, I accept the Minister’s submission that his explanation for the delay is not adequate. No issue has been raised about where the Notification was sent and, indeed, it seems it was eventually received by the applicant. The applicant has failed to identify the “friend” who collected the applicant’s mail and, in particular, the Notification and a copy of the Tribunal’s decision. Further, there is no explanation as to why this “friend” was collecting mail on behalf of the applicant and when either the “friend” or the applicant became aware of the Notification. I am not satisfied the applicant has provided a reasonable explanation in respect of the delay in filing his application to this Court.
I now turn to the merits of the substantive application for review. The applicant’s grounds of his application are:
1. On 5 November 2011, my wife was forcibly taken for abortion and I would be taken for sterilisation operation soon. I had to leave home for Australia to seek protection.
2. The RRT Tribunal member failed to consider my application according to S91R of the Migration Act 1958 because of the Tribunals member’s bias against me.
3. The Tribunal made jurisdictional error while making his decision.
Ground 1 is, in effect, a restatement of the applicant’s claims made before the Minister’s delegate and Tribunal in support of his Protection visa application. This ground identifies no jurisdictional error on the part of the Tribunal and, at its highest, seeks impermissible merits review (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 10 at [10]).
Ground 2 of the application alleges bias on the part of the Tribunal and a failure on its part to consider the applicant’s claims according to s.91R of the Migration Act. In respect of the alleged failure by the Tribunal to consider the applicant’s claims according to s.91R, the Tribunal in its Decision Record makes express references to the operation of s.91R specifically and in the broader context of the Migration Act and Refugees Convention at [9]-[18] of the Decision Record. It then goes on to consider the applicant’s claims and evidence at [23]-[38] and at [33] of the Decision Record states:
33. For the purposes of s.91R of the [Migration] Act, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. …
On a fair reading of the Decision Record, this allegation cannot be sustained.
I now turn to the allegation of bias on the Tribunal’s part. An allegation of bias must be “distinctly made and clearly proved”: Jia Legeng supra at [69]. In the application before this Court, the allegation is neither distinctly made nor clearly proved. The Tribunal considered the applicant’s claims, it just did not accept them. This does not mean the Tribunal was biased. Further, the applicant failed to attend the hearing before the Tribunal to give evidence in support of these claims. Accordingly, this ground has little, if any, prospects of success.
Ground 3 of the application alleges that the Tribunal made jurisdictional error while making its decision, but does not provide any further particulars. Accordingly, this ground has little, if any, prospects of success. Notwithstanding, I have read the Decision Record, and no jurisdictional error is apparent on a fair reading of it.
In respect of the applicant’s oral submissions, there is nothing on the face of the Decision Record to indicate there has been any failure on the part of the Tribunal to afford the applicant procedural fairness. Further, in respect of the applicant’s submissions relating to his not being informed of the hearing, this submission cannot be sustained. Section 425(1) of the Migration Act obliges the Tribunal to invite “the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”. On a fair reading of [5] and [30] of the Decision Record, I am satisfied the Tribunal has complied with its obligations and the applicant’s argument in this respect cannot be sustained.
Consequently, for the reasons above I do not believe it is in the interests of the administration of justice to grant the applicant an extension of time under s.477 of the Migration Act to file his application seeking review of the Tribunal’s decision. The application for an extension of time should be refused and the applicant ordered to pay the Minister’s costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 25 March 2014
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