SZTUN v Minister for Immigration & Border Protection
[2014] FCCA 1119
•29 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTUN v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 1119 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) s.477, Pt.8, Div.2 Federal Circuit Court Rules 2001 (Cth) r.44.12. |
| Cases Cited: Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176 Singh v Minister for Immigration and Citizenship [2013] FCA 813 |
| Applicant: | SZTUN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 148 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 29 May 2014 |
| Date of Last Submission: | 29 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2014 |
REPRESENTATION
The applicant appeared in person with the assistance of an interpreter
| Solicitors for the Respondents: | Ms Michelle Stone (DLA Piper) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 148 of 2014
| SZTUN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”), the applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 9 December 2013 (“the RRT”).
The applicant also applies for an extension of time pursuant to s.477 of the Act in circumstances where his application for judicial review, filed 21 January 2014, was filed more than 35 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
(3) In this section:
‘date of the migration decision’ means:
(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
(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 RRT is dated 9 December 2013. In the circumstances, the applicant’s application for judicial review to this Court, filed on 21 January 2014, is eight 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 principles relevant to consideration of whether to grant or dismiss an application for extension of time are well established. Those principles are the length of the delay and the explanation for that delay (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 34); the presence or absence of prejudice to the respondent (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 applicant’s explanation for the delay in filing his application, as stated in the grounds of his application for an extension of time, are as follows:
“1. I was not correctly informed of the decision by RRT.
2. I was not correctly informed by my agent.
3. My agent failed to act on my behalf.”
The first respondent does not take issue with that explanation. Nor does the first respondent suggest that it would suffer any prejudice by the extension being granted.
However, the first respondent opposes time being extended to the applicant on the basis that the application has insufficient prospects of success such that the Court could not be satisfied that it is in the interests of the administration of justice that time be extended to the applicant to seek judicial review of the RRT’s decision.
The applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.
On 5 May 2014, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.
I also explained to the applicant that in circumstances where the grounds of the application did not raise an arguable case for the relief claimed, the application may be dismissed pursuant to the rules of this Court.
At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.
The applicant confirmed that he wished to continue with the application for an extension of time to seek judicial review of the RRT’s decision. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, by 20 May 2014. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 20 May 2014.
At the directions hearing, the applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
The applicant confirmed to the Court this morning that he had not filed any further documents, either in accordance with my directions or otherwise.
The applicant confirmed that he relied on the grounds of his application. I explained to the applicant that the two issues of particular significance for the Court would be his delay in filing his application seeking judicial review of the RRT’s decision, and the prospects of success of that application.
The applicant’s application for judicial review, filed on 21 January 2014, stated the grounds of review as follows:
“Grounds of Application:
1. RRT has bias against me when it questioned my case.
2. RRT breached procedural fairness as I was denied break time.
3. RRT has prejudice as it asked the same questions many times.”
The grounds of the application were interpreted for the applicant and the applicant was invited to make submissions in support of the grounds.
The solicitor for the first respondent, Ms Michelle Stone, read the applicant’s affidavit, sworn 20 January 2014 and filed on 21 January 2014, annexing the RRT’s decision record. Ms Stone also read the affidavit of Ms Ada Wong, sworn 15 May 2014 and filed on 22 May 2014, annexing a transcript of the RRT’s hearing with the applicant, dated 4 December 2013.
With regard to grounds 1 and 2, the applicant told the Court that the RRT was biased against him because when he requested to go to the toilet, he was not allowed to do so. The applicant confirmed that ground 2 made the same complaint as ground 1.
The transcript of the RRT’s hearing with the applicant discloses the following exchanges:
“INTERPRETER: Yes. Can I have a rest?
TRIBUNAL MEMBER: We just need to go a little bit longer and then we’ll take a break; okay? So when you found out your mother got arrested in 2010, how did you feel?
INTERPRETER: Definitely I feel very sad. Due to this religion she got arrested. It’s very strange.
…
TRIBUNAL MEMBER: Okay. All right. Do you still wish to take a break?
INTERPRETER: Yes.
TRIBUNAL MEMBER: You do? All right. Well, we’ll stop now and we’ll take a break for 15 minutes and someone will call you when it’s time to come back. Thank you. Thanks, madam interpreter.
INTERPRETER: …
TRIBUNAL MEMBER: You will have to go outside the building to smoke. You can’t smoke inside. So, but as I said, in 15 minutes you must be back. I’m taking a break in this hearing. The applicant and interpreter have left the room. The time is 1.48 PM and I will pause the recording.
ADJOURNED”
Between the request by the applicant to “have a rest” and the response by the RRT Member that the hearing “just need[ed] to go a little bit longer and then we’ll take a break”, there are a few simple questions, that appeared to be simply answered. Ultimately, a break was taken for some 15 minutes.
In the circumstances, the applicant’s complaint about being refused a break is not likely to demonstrate any jurisdictional error on the part of the RRT.
In ground 3, the applicant said that the RRT was prejudiced against him because the RRT Member asked the same questions many times. When I asked the applicant what questions did the RRT ask many times, the applicant replied that he could not remember and that the RRT would go from one question to another question, then back to the first question. The applicant provided no other evidence in support of that allegation. A brief perusal of the transcript of the RRT hearing does not readily disclose any line of questioning that would suggest that the RRT Member was prejudiced in the way alleged by the applicant.
In the circumstances, ground 3 has no reasonable prospects of success and does not raise an arguable case for the relief claimed.
Otherwise, the RRT’s decision record makes clear that it did not accept the applicant’s claim of a fear of persecution in China for the reasons claimed, because of the adverse credibility findings it made in respect of the applicant’s evidence. The RRT found the applicant was not a witness’ truth, and the account of events on which his protection claims were based, were false.
The RRT’s decision record discloses exchanges that the RRT Member had with the applicant about his evidence, and notes that the RRT Member put to the applicant concerns he had about his evidence and noted the applicant’s responses. Ultimately, the RRT found the applicant’s evidence to be variously inconsistent, not responsive, and demonstratively vague.
While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, none is apparent on the face of the decision record. The RRT referred to the relevant law and affirmed the decision under review. There appears to be nothing on the face of the decision record to suggest that those findings were not open to the RRT on the evidence and material before it and for the reasons it gave.
The applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error on the part of the RRT.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Further, the applicant has failed to satisfy the Court that his application has any, or any reasonable, prospects of success such that it would be in the interests of the administration of justice to extend time.
Accordingly, the applicant’s application for an extension of time should be refused with costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 6 June 2014
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Jurisdiction
0
3
0