SZTWH v Minister for Immigration
[2014] FCCA 551
•20 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTWH v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 551 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – refusal of an extension of time to file judicial review application. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.417, 426A, 476, 477 |
| SZQLD v Minister for Immigration & Anor [2011] FMCA 784 |
| Applicant: | SZTWH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 315 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 20 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2014 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms A Carr DLA Piper |
INTERLOCUTORY ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the request for an extension of time for the filing of the application under s.476 of the Migration Act is refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 315 of 2014
| SZTWH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application purportedly filed on 12 February 2014 seeking judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 11 October 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
It is common ground that the application cannot be dealt with by the Court unless the Court exercises its discretion in s.477(2) of the Migration Act 1958 (Cth) (Migration Act) to extend the time for the filing of the application. In his principal application, the applicant seeks that extension of time. He says in that application that he did not know that he had a right to appeal to the Court. He says that he had no knowledge of the law or anything about the complexities of migration law. He says that he has no money to engage or retain legal representation. He says that he only knew he had a right to appeal to the Court two days before he presented his application on 12 February this year. He says that the Tribunal decision is vitiated by jurisdictional error, and that he case raises and evokes Australia’s non-refoulement obligations, presumably under the Refugees Convention or other relevant international instruments. The applicant says that an extension of time would be in the interests of the administration of justice. I infer that the application was prepared with the assistance of someone having some knowledge of relevant issues on an extension of time application.
The application was supported by an affidavit by the applicant made on the same day. I received [7]-[10] of that affidavit as submissions and the balance as evidence.
The matter came before me for first court date directions on 6 March 2014. At that time, I made orders to prepare the case for an interlocutory hearing on the issue of the extension of time today.
I gave the parties the opportunity to file and serve further evidence bearing upon the extension of time issue. I recall explaining to the applicant on that day that I would be interested in particular in his explanation for the delay in coming to court and the question of whether his case raises a serious question to be tried. I recall drawing the applicant’s attention to the fact that the Tribunal exercised its discretion under s.426A of the Migration Act to proceed to make a decision without a hearing.
Both the applicant and the Minister have taken up the opportunity to present additional evidence. The applicant filed a second affidavit on 12 March 2014. I received [13]-[20] of that affidavit as submissions. I received the balance of the affidavit as evidence. The applicant was not required for cross-examination. The Minister’s solicitor, Ms Carr, made an affidavit on 13 March 2014 which I received. Annexed to that affidavit is a bundle of documents bearing upon the extension of time issue.
The considerations relevant to the question of whether the Court should exercise its discretion under s.477(2) of the Migration Act to extend time have been stated many times and do not require repeating. In today’s hearing, I have focused my attention on three issues. The first is the length of the delay. The time limit of 35 days prescribed under s.477(1) of the Migration Act expired on 15 November 2013. The applicant therefore delayed approximately three months in coming to court. That delay is a moderate delay. If the applicant were able to satisfactorily explain the delay and point to some issue of substance meriting a hearing, I would have been minded to exercise my discretion in his favour.
The second issue is the applicant’s explanation for the delay. That appears, in particular, from his second affidavit. I accept that at some time shortly prior to the expiration of the appeal period, the applicant engaged the assistance of Mr Kayhan Oncu of Legal Edge Australia to request the Minister’s intervention under s.417 of the Migration Act. A circumstance raised in that request was that the applicant was engaged to be married to an Australian citizen, and wanted the opportunity to apply for a partner (spouse) visa. I also accept that on 11 February 2014, the Minister refused to intervene. The applicant deposes that he was led to believe by Mr Oncu that his only option was ministerial intervention. He deposes that Mr Oncu never informed him of his right to seek judicial review in this Court. That evidence is unchallenged.
However, the documents annexed to Ms Carr’s affidavit establish that the applicant was represented before the Tribunal by Mr Sam Issa, a solicitor. Mr Issa was also nominated as the applicant’s authorised recipient. A copy of the Tribunal’s decision with an information sheet attached to it was sent to Mr Issa in that capacity by letter dated 11 October 2013.
The applicant became aware of the Tribunal decision prior to engaging the services of Mr Oncu. The applicant is silent in his evidence about the circumstances in which he became aware of the decision. I infer, from the documents annexed to Ms Carr’s affidavit, that Mr Issa provided the Tribunal’s decision and the related documents to the applicant within the appeal period.
The applicant had the opportunity to refer to the information sheet, which told him, relevantly, that if he thought that the decision of the Tribunal was wrong in law, he could consider seeking judicial review in this Court. While the applicant asserts that he was ignorant of that right during the appeal period, I infer that he had the means to inform himself if he had so wished. It would have been better if the information sheet had informed the applicant of the time limit imposed by s.477(1). I recall that in former times applicants were told about that time limit by the Tribunal when it provided its decision. I do not know why applicants are no longer given that information.
This Court has stated on numerous occasions that if an applicant makes an informed decision to pursue Ministerial intervention in preference to judicial review, the considered decision to pursue an alternative course to judicial review is not an acceptable justification for the delay[1].
[1] SZQLD v Minister for Immigration & Anor [2011] FMCA 784
A question in this case is whether the applicant’s choice was a considered one. He denies that it was. The documents annexed to Ms Carr’s affidavit give rise to an inference that his choice might have been a considered one. A difficulty for the applicant is his silence about when and how he became aware of the Tribunal’s decision and his silence about any discussions with Mr Issa following the Tribunal decision.
On balance, I am not persuaded that the applicant has advanced a satisfactory explanation for his delay in coming to court. If I had been so persuaded, there would have remained the issue of whether there was a serious issue to be tried in this case. That was explored in some detail in oral submissions today.
The purported judicial review application contains four grounds:
1. The [T]ribunal denied me procedural fairness and natural justice when it made its decision on 11 October 2013. Given the fact that the [T]ribunal relied on material without given me the adequate opportunity to make comments and put in submissions before making its decision.
2. The [T]ribunal denied me procedural fairness and was in breach of section 425 of the Migration Act 1958, given the fact that I did not have a hearing and I did not attend the hearing for medical reasons and grounds as I was sick and had asked the [T]ribunal to adjourn the hearing to another date so that I could attend the hearing.
3. The Tribunal constructively failed to exercise jurisdiction as its jurisdiction according to law remains unexercised.
4. The Tribunal misconstrued the test of significant harm when it found contrary to the evidence before it that I am refugee according to and pursuant to section 36(2)(aa) of the Complementary Protection. (errors in original)
Grounds 3 and 4 are not particularised, which is a difficulty. Grounds 1 and 2 do convey meaning in the context of the Tribunal decision.
Two things are plain from the Tribunal decision. The first is that the applicant failed before the Tribunal because it considered that it had insufficient information to enable it to be satisfied that the applicant qualified for a protection visa. Obviously, a hearing would have provided the applicant with the opportunity of giving that additional information. The applicant was denied that opportunity because the Tribunal exercised its discretion pursuant to s.426A of the Migration Act to proceed without a hearing.
The Tribunal dealt with the circumstances [5]-[12] of its reasons:
On 19 August 2013, the Tribunal wrote to the applicant advising that it had considered all the papers relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 26 September 2013.
On 22 August 2013 the applicant’s representative and authorised recipient wrote to the Tribunal confirming that the applicant intended to take part in the Tribunal hearing. On 25 September 2013 the applicant’s representative again wrote to the Tribunal confirming the applicant’s attendance at the hearing as scheduled.
Due to an internal communication error in the VIDC the applicant was not escorted to the Tribunal at the scheduled time. However, the hearing was adjourned until 2pm f the same day – 26 September 2013. The applicant’s representative was notified accordingly.
The Client Services Manager, VIDC, contacted the Tribunal by telephone on the morning of 26 September 2013 to advise that although the applicant was aware of the hearing that morning he was refusing to attend. The Tribunal subsequently sought clarification from VIDC and was informed that the applicant did not wish to attend the hearing, having indicated that he was ill.
The Tribunal also received a fax from the applicant’s representative on the same day advising that the applicant had fallen ill and was seeking an adjournment of the hearing on medical grounds. He also advised that the applicant had put in ‘a 24 hour request as per the detention procedure to seek medical assistance’.
The Tribunal subsequently wrote to the applicant advising that as he was seeking a postponement of the hearing on medical grounds, he must give the Tribunal a written opinion from a medical practitioner providing detailed reasons as to why his medical condition had prevented him from attending the scheduled hearing and giving oral evidence to the Tribunal. The Tribunal advised the applicant that the medical opinion must include clear advice as to when he will be fit to attend a hearing. The Tribunal further advised that if these reasons are not provided, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it.
No further communication, including a medical opinion, was received by the Tribunal.
After carefully considering the circumstances of this case, the Tribunal did not find the reasons advanced by him for his failure to attend the hearing satisfactory. Under the circumstances, pursuant to s.426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant or his guardians to appear before it.
With the assistance of the interpreter, I read those paragraphs to the applicant during oral argument. He did not dispute the accuracy of the Tribunal’s statements, although he stressed that he was unaware that the Tribunal required a written medical opinion. He suggested that his solicitor, Mr Issa, may have been at fault. He said, however, that he was not alleging fraud on the part of Mr Issa. The documents annexed to Ms Carr’s affidavit throw some light on what occurred. First, they confirm the accuracy that of the Tribunal summary. Secondly, the case notes on pages 28, 29 and 30 of the annexures to Ms Carr’s affidavit indicate that there was a degree of confusion about the circumstances of the applicant on the day of the scheduled Tribunal hearing. The document at page 31 of the annexures is a letter dated 26 September 2013 sent by fax to the Tribunal by the applicant’s solicitor, Mr Issa. In that letter Mr Issa relevantly states:
We refer to the above matter and are instructed to advise that our client has fallen ill and seeks an adjournment of today’s proceedings on medical grounds.
We are also instructed that he has put in a 24 hour request as per the detention procedure to seek medical assistance. A medical certificate will be made available to the Tribunal as soon as our client is seen by the medical practitioner.
A case note at page 37 of the annexures to Ms Carr’s affidavit also details a telephone conversation between a Tribunal officer and Mr Issa on 26 September 2013. I accept from those documents that at the time of the scheduled Tribunal hearing Mr Issa was advocating diligently on behalf of his client for an adjournment. The Tribunal wrote to Mr Issa in response to his representations. It is apparent from pages 24 and 25 of the documents annexed to Ms Carr’s affidavit that the Tribunal correspondence was sent by email and registered post. There is no suggestion that the correspondence was not received by Mr Issa. Given his diligence in advocating for an adjournment I cannot accept that Mr Issa would have simply ignored the correspondence.
It is curious, however, that no response was made to the Tribunal’s letter. The applicant’s evidence is silent on that question. He claims to know nothing of the Tribunal’s letter. However, he acknowledged that he had made an oral request for medical attention. Mr Issa’s letter of 26 September 2013 was written on instructions. That letter gave an undertaking to provide a medical certificate. I infer that the reason why no reply was made to the Tribunal’s letter requesting the certificate was that nothing further could be put usefully on behalf of the applicant.
In the circumstances, I am not persuaded that there is a serious issue to be tried on the question of whether the Tribunal’s exercise of discretion under s.426A of the Migration Act miscarried.
I will order that, pursuant to s.477(2) of the Migration Act, the request for an extension of time for the filing of the application under s.476 of the Migration Act be refused.
In consequence of the refusal of an extension of time, the Minister seeks an order for costs fixed in the amount of $3,326. That is the scale amount for a show cause hearing and is an appropriate reference amount for this hearing. The applicant sought and received an explanation for the Court’s event-based costs scale. He doubted his capacity to pay, but that is not a reason for the Court to refrain from making a costs order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 25 March 2014
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