SZTVX v Minister for Immigration & Border Protection
[2015] FCCA 601
•12 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTVX v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2015] FCCA 601 |
| 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 it is necessary in the interests of justice to extend time to the applicant – whether the Refugee Review Tribunal erred in considering complementary protection by conflating its consideration with Convention considerations – application for extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.36, 477. |
| Cases Cited: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 Re Commonwealth of Australia;Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491 |
| Applicant: | SZTVX |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 290 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 12 March 2015 |
| Date of Last Submission: | 12 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 12 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Paul Bodisco |
| Solicitors for the Applicant: | Michaela Byers Solicitor |
| Counsel for the Respondents: | Mr Bora Kaplan |
| Solicitors for the Respondents: | Clayton Utz |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 290 of 2014
| SZTVX |
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 10 February 2014 was filed 335 days from the date of the decision sought to be reviewed.
The applicant claims to be a citizen of Pakistan who fears harm from the Taliban for reason of his previous ownership of a music shop, alleged identification of Taliban members to the Pakistani army and his liberal mindedness (including his consumption of alcohol). The applicant further claims harm based upon his mental health issues.
The applicant arrived in Australia on 15 December 2011 having departed legally from Pakistan on a passport issued in his own name.
On 5 February 2012, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).
On 15 May 2012, a delegate of the first respondent refused the applicant’s application for a protection visa (“the Delegate”).
On 29 May 2012, the applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 13 March 2013, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa (“the RRT”).
On 3 May 2013, the applicant’s migration agent wrote to the first respondent seeking ministerial intervention in the applicant’s case pursuant to s.417 of the Act.
On 18 December 2013, the applicant’s application for ministerial intervention was refused.
On 10 February 2014, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.
The Legislative Framework
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 is dated 12 March 2013. In the circumstances, the applicant’s application for judicial review to this Court, submitted on 10 February 2014, is some 300 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, where an application is made in writing to the Court specifying why an order should be made extending that 35 day period in the interests of justice, the Court may make such an order where it is satisfied that the grant of the extension is necessary in the interests of justice.
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 (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).
In deciding whether to grant an application for an extension of time, the application should have such prospects of success as not to render the extension of time an exercise in futility (see Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [20]; WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9]).
If an application has no prospect of success, an extension of time – even for a short period – may be refused (see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23], citing Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] per Jessup J, with whom Gyles and Besanko JJ agreed; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J; Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]; SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 at [22]; SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 at [19]).
The Proceeding before this Court
The applicant sought leave to file in Court an Amended Application which identified the grounds of his application for an extension of time as follows:
“1. The RRT has failed to apply the correct test and/or to consider the full integers of his claim.
Particulars
a) In dealing with the claim advanced under the complementary protection provision at paragraph [121], the RRT explicitly drew into its analysis “Country information cited above”;
b) In the analysis of the Country Information dealt with pursuant to the alternative criterion posed by section 36(2)(a) of the Migration Act 1958 (Cth), the RRT found that “incidents of terrorist violence still occur in the [Swat Valley]” and that “the security situation in the area is unpredictable”;
c) Whilst the subsequent finding in paragraph [110] – namely that the Tribunal “does not accept on the country information before it, that there is a real chance the applicant will face persecution from the Taliban if he returned to Swat, nor or in the reasonable future for a Convention reason” – deals with the claim under section 36(2)(a) of the Act; and
d) The claim that arises on the material regarding the risk of harm given the general security in Pakistan has not been dealt with under section 36(2)(aa) of the Act.”
The applicant was represented by Mr Paul Bodisco, of counsel. The applicant’s application for an extension of time was opposed by the first respondent.
In relation to the applicant’s explanation for the delay, Mr Bodisco read the applicant’s affidavit, affirmed 7 February 2014 and filed on 10 February 2014, which is as follows:
“1.I am the applicant in these proceedings.
2. The Asylum Seeker Centre referred me to Abelberg Morcos Lawyers in Melbourne to act for me in the Refugee Review Tribunal. Lelyan Elias was my migration agent (MARN 127891) and the law firm was accredited through the IAAS scheme.
3. On 12 March 2013 the Refugee Review Tribunal affirmed the decision not to grant a protection visa.
4. On or about mid-April 2013 Lelyan Elias telephoned me and said words to the effect “Your case in the RRT was refused. You should get a letter in 3 days”.
5. When I received the RRT decision I noticed it was already more than one month since refusal was made.
6. I tried to telephone Lelyan Elias many times. When I did speak to her she said words to the effect “I did your case. It is already submitted to the Ministerial Unit””.
7. Annexed and marked “A” is a copy of the Acknowledgment of request for Ministerial Intervention under section 417 of the Migration Act 1958 dated 9 May 2013 indicating the Minister declined to intervene.
8. Annexed and marked “B” is a copy of the section 417 submissions undated.
9. Annexed and marked “C” is a copy of the Notification of Ministerial request outcome under sections 417 and 48B of the Migration Act 1958 dated 18 December 2013.
10. After the Minister refused to intervene in my case, Lelyan Elias telephoned me and said words to the effect that “The Minister has refused you”. I asked for a copy of my file and I received it in January 2014.
11. On or about 30 January 2014 a friend took me to see a barrister in his chambers by the name of Paul Bodisco who said words to the effect that “There are legal errors in the Refugee Review Tribunal decision record so you can go to Court” and he referred me to my current legal representative to prepare and file the necessary paperwork in Court.
12. Annexed and marked “D” are copies of the GP Management Plan and a Medical certificate dated 15 June 2013 from Dr M Allam from NAS Medical Centre dated 2 May 2013.
13. Annexed and marked “E” is a copy of a doctor’s certificate from Martin Scholsem, Neurosurgery Fellow, NSW Health Western Sydney Local Health District Westmead Hospital dated 19 June 2013.
14. Annexed and marked “F” are copies of doctor’s certificates from Dr Nosheen Sabir dated 7 January 2013 and 19 September 2013.
15. Annexed and marked “G” are copies of letters from Medhat Metry, Registered Psychologist, MM Psychological Support services dated 8 August 2012, 20 February 2013 and 18 April 2013.
16. I relied on the knowledge and expertise of my migration agent Lelyan Elias and did not understand the implications of making a section 417 request to the Minister for Immigration instead of applying to the Federal Circuit Court of Australia. In addition, my medical and psychological condition impeded my ability to take the initiative to seek further advice.”
The affidavit makes clear that the applicant chose to pursue ministerial intervention pursuant to s.417 of the Act.
It is well established that an applicant’s conduct in seeking ministerial intervention under s.417 of the Act is indicative of a decision by the applicant to abandon a course that would seek to challenge the decision of the RRT on grounds that may otherwise have been available under the Act (see M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 and Daniel v Minister for Citizenship and Multicultural Affairs [2004] FCA 21).
In the circumstances, the applicant’s explanation provided to this Court for his delay is not a satisfactory explanation of the delay.
In considering whether it is necessary in the interests of justice that time be extended to the applicant, I also have regard to the prospects of success of the applicant’s claim.
Mr Bodisco took the Court this morning to findings of the RRT in relation to its consideration of complementary protection and contended that the RRT in making those findings, conflated those findings with Convention grounds.
In particular, Mr Bodisco referred to paragraph 121 where, in the context of considering complementary protection, the RRT stated as follows:
“For the reasons provided above, the Tribunal does not accept that the applicant had any further contact with the Taliban after 2008, and once he returned to Swat in 2009. .... given the country information cited above regarding the situation in Swat, since military operations to remove the Taliban from the area, and the applicant’s particular profile, the Tribunal does not accept that there is a real risk of the applicant being killed, arbitrarily detained, tortured or subject to cruel, inhumane or degrading treatment or punishment from either militant groups or anyone else either because of his past contact with the Taliban in 2008 or because of his religion, political opinion, or being open-minded.”
Mr Bodisco said that the reference by the RRT to Convention language in the above quote indicated that the RRT had not applied the proper test in considering whether or not the applicant met the complementary criterion. Mr Bodisco also referred the Court to the RRT’s decision record where the RRT made similar findings in considering whether or not the applicant was at risk for a Convention reason.
Mr Bodisco submitted that the RRT made a similar error in considering whether or not it was reasonable for the applicant to relocate to Karachi.
In the context of considering complementary protection, the RRT made the following finding:
“122. In any event, as an alternative finding, and for the same reasons as already discussed above, the Tribunal finds that it would be reasonable for the applicant to relocate to Karachi where there would not be a real risk that he would suffer significant harm.”
The RRT found that the applicant would not be at real risk of significant harm in the context of the RRT’s consideration of whether the applicant met the complementary criterion. Mr Bodisco’s argument was to the effect that because the RRT referred to the “same reasons already discussed above” in considering relocation, the RRT was again having regard to Convention findings that it imported into its conclusion in relation to relocation in considering complementary protection.
In my view, none of the arguments contended for by the applicant have sufficient prospects of success, such that it would be necessary in the interests of justice that time be extended to the applicant. Whilst I make no final finding as to whether or not the RRT’s decision is affected by jurisdictional error, in my view, a fair reading of the RRT’s decision record makes clear that it identified the relevant considerations in considering complementary protection obligations.
In relation to the RRT’s conclusion that having regard to the country information regarding the situation in Swat since military operations to remove the Taliban from the area, and the applicant’s particular profile. The RRT did not accept that there is a real risk of the applicant being killed arbitrarily, detained, tortured, or subjected to cruel, inhumane, or degrading treatment or punishment from either militant groups or anyone else, either because of his past contact with the Taliban in 2008, or because of his religion, political opinion. These findings do not suggest that the RRT was unaware of the matters it was required to have regard to in considering whether the applicant met the complementary criterion.
The reference to the applicant’s particular profile does not suggest that the RRT was intending to confine the applicant’s application for review to the applicant’s Convention claims. Nor do I accept that the RRT conflated or misunderstood the distinction in the relevant considerations of Convention claims and complementary claims simply because it rejected a risk of harm to the applicant because of his “religion, political opinion, or being open-minded”.
It is well-established that the RRT is entitled to have regard to earlier findings made in the course of considering an applicant’s Convention claims, particularly where there were no separate claims made in relation to complementary protection. In support of that proposition, I refer to SZSGA v Minister for Immigration and Multicultural Affairs and Citizenship [2013] FCA 774 at [54] to [57] per Robertson J, as follows:
“54. The factual basis of the claim under the complementary protection provision was rejected by the Tribunal. Thus the claim as articulated under the complementary protection provisions failed. The claim could not proceed in light of the Tribunal rejection of the various causes in relation to which the appellant claimed he would be harmed with or without detention.
55. …the Tribunal did specifically address the complementary protection claim by reference to the language of the statute and by reference to its particular findings of fact…
56. …there is in my opinion no jurisdictional error in the Tribunal referring to its previous findings of fact in this case as the claim under complementary protection provision as articulated could not survive those findings of fact.
57. …Each case must depend on its own facts and what the decision maker’s reasoning in fact was…In the present case, the Tribunal did specifically address the complementary protection claim by reference to the language of the statute and by reference to its particular findings of fact which led to the conclusion that the Tribunal did not accept the appellants claim.”and SZSHK v Minister for Immigration and Border Protection & Anor (2013) 138 ALD 26 at 34 at [32] per Robertson, Griffiths, and Perry JJ, as follows:
“32. …however, where there is a finding that no harm as claimed was suffered, that finding is relevant to a complementary protection claim, that is, to whether the minister has substantial grounds for believing there is a real risk of significant harm for the purposes of s.36(2)(aa) of the Act.”
Alternate RRT Finding Regarding the Possibility of Relocation
In the circumstances, in any event, even if it be the fact that the RRT erroneously referred to Convention language in considering complementary protection, it did not do so in relation to its consideration of whether or not the applicant can relocate.
Clearly, under s.36(2)(b) of the Act, in the light of such a finding, there is not taken to be a real risk that the applicant will suffer significant harm.
It is well-established that where the RRT makes an unimpeachable and independent finding as an alternative finding, then there can be no error that in the circumstances would justify the exercise of discretion to remit the decision to the RRT for reconsideration (see: SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660 at [23] per Sackville J; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [233] per Allsop J.).
In relation to the RRT’s relocation findings, the RRT was clearly aware that it was required to consider whether there was a real risk that the applicant would suffer significant harm in considering complementary protection. Plainly that finding is without error and is independent of the RRT’s other findings.
Further, in considering relocation, the applicant’s claims were exactly the same in relation to his Convention claims and his claims for complementary protection. There were no other claims made by the applicant to the contrary.
Mr Bodisco sought to read an affidavit annexing a transcript of the RRT hearing, which was objected to by the first respondent on the grounds of relevance. Mr Bodisco referred to various pages of the transcript, which appeared to be no more an explanation of the applicant’s claims. I do not see how that transcript is relevant to the arguments that were made by Mr Bodisco this morning. It is clear from the oral submissions made by Mr Bodisco this morning that they departed from the grounds of the draft amended application and, to some extent, the submissions in support. Mr Bodisco confirmed that the applicant’s contentions this morning were confined to the complaints raised in oral argument and which are referred to and dealt with above.
There is unquestionably a public interest in the finality of an administrative decision. I accept that there may be a prejudice to the applicant in not extending time to him to seek judicial review of the RRT’s decision. However, in light of the findings I have made that the applicant has not raised an arguable case, I find the prejudice to be minimal.
The relevant principles are referred to in Re Commonwealth of Australia;Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491, in which McHugh J stated at [15]-[17] as follows:
“15. An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases. Nevertheless, the applicant is seeking the quashing of a decision of the AIRC made 17 months before he filed his application for relief in this Court.
16. Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, " [t]he rules of court must prima facie be obeyed". The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.
17. An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.” (emphasis added)
In the circumstances, I am satisfied that the applicant’s substantive application for judicial review of the RRT’s decision, as argued this morning before the Court, has no prospects of success.
For the above reasons, the applicant has failed to provide a satisfactory explanation for his delay in submitting his application for review to this Court. Further, the applicant has failed to satisfy the Court that his application has any prospects of success such that it would be in the interests of justice to extend time. As such the applicant’s application for an extension of time should be refused with costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 27 March 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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Remedies
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Jurisdiction
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