SZTWJ v Minister for Immigration & Border Protection

[2014] FCCA 1010

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTWJ v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1010

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Whether an extension of time should be granted pursuant to s.477 of the Migration Act 1958 (Cth) – whether it is necessary in the interests of justice to extend time in light of delay of 65 days in seeking judicial review of decision of Refugee Review Tribunal – whether grounds of the applicant’s application have raised an arguable case – unsatisfactory explanation for delay – insufficient prospects of success – application refused.

Legislation:

Migration Act 1958 (Cth), ss.417, 477
Federal Circuit Court Rules 2001 (Cth) r.44.12

Cases cited:
M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520
Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) ALR 198

Applicant: SZTWJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 324 of 2014

Judgment of: Judge Emmett

Hearing date: 19 May 2014

Date of Last Submission: 19 May 0214

Delivered at: Sydney

Delivered on: 19 May 2014

REPRESENTATION

The applicant appeared in person.

Solicitor for the Respondents: Ms Drury
(Clayton Utz Lawyers)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 324 of 2014

SZTWJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. 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, filed 13 February 2014, for judicial review of the decision of the Refugee Review Tribunal (“the RRT”), dated 5 November 2013, as filed more than 35 days from the date of the decision.

2. 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.”

1. Rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) is as follows:

   “Show cause hearing

   (1)  At a hearing of an application for an order to show cause, the Court may:

   (a)  if it is not satisfied that the application has raised an arguable case for the relief claimed--dismiss the application; or

   (b)  if it is satisfied that the application has raised an arguable case for the relief claimed--adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

2. The applicant’s application for judicial review to this Court, filed on 13 February 2014, is some 65 days in excess of the 35 day time limit provided for in s.477(1) of the Act.

3. 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 the administration of justice to make the order, and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order extending the time period.

4. In the applicant’s application for judicial review, filed 29 July 2013, the applicant identified the grounds of his application for an extension of time as follows:

   “1. I was advised by my legal representative that it is more important to write a Minister Intervention letter at the time when I received my decision from the RRT.”

5. The applicant was unrepresented this morning and made no further relevant submissions.

6. The applicant’s application for an extension of time was opposed by the first respondent on the basis that it was not in the interests of the administration of justice that the application for extension for time be granted as the applicant’s substantive ground in his application for review of a decision of the RRT does not have sufficient prospects of success. 

7. The applicant’s ground for extension of time, that he was advised by his legal representative to seek ministerial intervention when he received the decision on the RRT to affirm the decision under review not to grant him a protection visa, is a choice open to the applicant. However, it is well established that an applicant’s conduct in making an appeal to the first respondent, 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).

8. Pursuant to r.44.12 of the Rules, if the Court is not satisfied that the application raises an arguable case for the relief claim, the Court may dismiss the application.

9. The ground of the applicant’s substantive application upon which he relies in establishing jurisdictional error on the part of the RRT is as follows:

   “The RRT erred by finding pursuant to s.36(3) of the Act that I am not a person to whom Australia owes protection.

   Particulars

   I came to Australia as a refugee in 1987.”

10. The grounds of this application make a bare assertion that does not disclose any error capable of review by this Court and does not raise an arguable case for the relief claimed. 

11. In the circumstances, I am not satisfied by the explanation provided by the applicant for his delay in making his application for judicial review is satisfactory. A stated above, the grounds of the application for judicial review do not raise an arguable case for the relief claimed. In the circumstance, the administration of justice is more properly served by the applicant’s application for an extension of time being refused.

12. Accordingly, the application to extend time for the applicant to seek judicial review of a decision of the RRT, dated 5 November 2013, should be refused with costs.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:             22 May 2014