SZTXV v Minister for Immigration
[2014] FCCA 2160
•16 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTXV v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2160 |
| Catchwords: MIGRATION – Application seeking review of decision of Refugee Review Tribunal to refuse the grant of a Protection (Class XA) visa – application filed out of time – application under s.477(2) of Migration Act 1958 (Cth) seeking extension of time to file substantive application – relevant considerations – application seeking extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 46A(2), 476, 477(1), 477(2) Federal Circuit Court Rules 2001 (Cth), r.44.05 |
| Li v Minister for Immigration & Anor [2011] FMCA 12 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 SZROV v Minister for Immigration & Anor [2012] FMCA 1091 SZTWI v Minister for Immigration & Anor [2014] FCCA 2038 WZASC v Minister for Immigration and Border Protection [2013] FCCA 1452 |
| Applicant: | SZTXV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 645 of 2014 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 16 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 16 September 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Tamil interpreter. |
| Solicitor for the First Respondent: | Ms A Carr of DLA Piper |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) be refused.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $3,900.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 645 of 2014
| SZTXV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1303587, a decision of Tribunal Member L. Hunt dated 1 October 2013, affirming the decision of a delegate of the Minister for Immigration and Border Protection (at the time of the decision the Minister for Immigration and Citizenship) (the “Minister”) to refuse to grant the applicant a Protection (Class XA) visa.
The application for review filed in this Court was filed out of time by a period of 121 days, pursuant to the operation of s.477(1) of the Migration Act. Section 477(1) provides that an application to this Court for a remedy to be granted in exercise of the Court’s original jurisdiction under s.476 of the Migration Act in relation to a migration decision must be made within 35 days of the date of the migration decision, in this case the decision of the Tribunal of 1 October 2013. Pursuant to s.477(2) of the Migration Act, the Court may order that such time be extended and the applicant has sought such an order.
The applicant was granted leave on 29 April 2014 to file and serve written submissions and list of authorities upon which he sought to rely by 1 September 2014. The applicant elected not to file any documentation in support of his application for an extension of time.
The solicitors for the Minister filed a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.
The applicant is a male citizen of Sri Lanka born in July 1990 (CB 75). He arrived in Australia on 5 June 2012 as an unauthorised maritime arrival at Christmas Island (CB 1-16).
On 12 September 2012, the Minister exercised his discretionary power pursuant to s.46A of the Migration Act to enable the applicant to apply for a Protection visa (CB 17). Consequently, on the same day the applicant made his application for a Protection visa (CB 19-45).
The applicant’s claims in support of his Protection visa application were set out in a statutory declaration accompanying his application (CB 46-50). A delegate of the Minister refused to grant the applicant a Protection visa on 11 February 2013 (CB 103-127).
The applicant subsequently applied to the Tribunal for review of the delegate’s decision on 8 March 2013 (CB 129-134). The applicant appeared before the Tribunal on 16 July 2013 where he gave oral evidence (CB 173-175). The Tribunal affirmed the delegate’s decision to refuse to grant the applicant a Protection visa on 1 October 2013 (CB 179).
The applicant’s claims
The applicant claimed he was of Tamil ethnicity and worked as a fisherman with his father from January 2006 to May 2012. The applicant claimed that both the Sri Lankan Army and Navy harassed him and his father when they went fishing.
The applicant claimed he would be prevented from working as a fisherman by the Army and Navy. He further claimed that, on his return to Sri Lanka, he would be tortured and imprisoned for having left Sri Lanka illegally.
The Tribunal’s decision
The Tribunal accepted:
a)The applicant had been harassed by the Army and Navy, whereby he had been regularly questions had had his identification checked (CB 191 at [57]);
b)The Army attended the applicant’s residence and searched his house for evidence of Liberation Tigers of Tamil Eelam (“LTTE”) links (CB 191-192 at [58]); and
c)The applicant had been stopped by the Navy once at sea and he had suffered verbal abuse, been slapped on the face and had a gun put to his head (CB 192 at [60]).
Consequently, the Tribunal accepted the applicant had been subject to discrimination, which involved harassment and systematic conduct. However, it was not satisfied that this treatment amounted to serious harm (CB192-193 at [61] and [63]), or significant harm (CB 203 at [107]).
The Tribunal accepted the applicant and his father were attacked by a Sinhalese fisherman when at sea in 2012 and that, after this incident, a group of Sinhalese attacked the applicant’s residence. The Tribunal also accepted these attacks were racially and economically motivated (CB 194 at [70]). However, the Tribunal did not accept the applicant’s later claim that a group of Sinhalese men came to the applicant’s family residence on three separate occasions after the applicant’s arrival in Australia (CB 194 at [71]), or that the applicant was followed in a van (CB 194 at [72]).
The Tribunal found that if the applicant were returned to Sri Lanka the chance of him being seriously harmed by the Sinhalese fishermen was remote, noting that eighteen months had passed since the last attack (CB 195 at [73]). The Tribunal was satisfied that the attacks by the Sinhalese amounted to significant harm, but it was not satisfied there were substantial grounds for believing that there was a real risk that the applicant would face significant harm if returned to Sri Lanka now or in the reasonably foreseeable future (CB 203 at [106]).
The Tribunal did not accept the applicant had an actual or perceived association with the LTTE (CB 198 at [83]). On his return to Sri Lanka, the Tribunal did not accept the applicant would be regarded as pro –LTTE (CB 193-194 at [68]-[69], CB 198 at [84]), or imputed with an anti-government political opinion (CB 198 at [85]).
The Tribunal accepted that on return to Sri Lanka the applicant would be remanded and charged with an offence under Immigration and Emigration Act of 1948. However, with a family member as surety, the Tribunal found the applicant would be released on bail to appear at court at a future date (CB 200 at [94]). The Tribunal found the applicant would not be subjected to treatment outside the standard procedures applicable to a person returning to Sri Lanka who had departed illegally (CB 205 at [109]).
Current Proceedings
The application for judicial review filed in this Court was filed on 17 March 2014, which included the application for an extension of time.
The grounds of the application for an extension of time state:
Following the decision of the Refugee Review Tribunal in October 2013, I received legal advice. I was told that I would be eligible to apply to live in Australia as Australia was looking for workers in the meat industry and I was working in the meat industry in Queensland. This application was made in November 2013. I did not want to have multiple applications in process, but wanted to wait for a decision on my industry application. Now that a decision had been made, I am applying for a judicial review of the decision made by the second respondent.
The substantive application pleads two grounds:
1. That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.
2. More details will be provided by the legal representative.
At the first directions hearing, the application for an extension of time was set down for hearing on 16 September 2014. The applicant did not file written submissions in support of the application for extension of time to bring the proceedings, despite leave being granted.
Statutory Framework
Section 477(1) of the Migration Act provides that an application to the Federal Circuit Court for a remedy to be granted in exercise of the Court’s original jurisdiction under s.476 of the Migration Act in relation to a migration decision must be made to the Court within 35 days of the date of the migration decision.
Section 477(2) of the Migration Act provides that the Court may order that the 35 day period be extended as the 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.
Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth) (the “FCC Rules”) provides that:
1. An application for a remedy to be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.
2.An application must be supported by an affidavit including:
a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision.
b) any document or other evidence the applicant seeks to rely on; and
c) if an extension of time is sought – the evidence explaining the delay and showing why it is necessary in the administration of justice for the Court to grant an extension.
The non-exhaustive list of factors to be considered by the Court in determining whether an extension of time is in the interests of the administration of justice include:
a)The extent of the delay;
b)Any reason for the delay;
c)Any prejudice to the respondent(s);
d)The impact on the applicant if time is not extended;
e)The interests of the public at large;
f)Any exercise of the Court’s discretion; and
g)The merits of the proposed substantive application (see Li v Minister for Immigration & Anor [2011] FMCA 12; WZASC v Minister for Immigration and Border Protection [2013] FCCA 1452).
Consequently, before the Court can make an order extending time:
a)There has to be an application for an order to extend time;
b)The application for an order to extend time must be made in writing; and
c)The application must specify why it is that the applicant considers it is necessary in the interests of the administration of justice to make that order (see WZASC (supra) at [10]).
Hearing
The applicant indicated at the commencement of the hearing he had not prepared any written submissions.
Applicant’s Oral Submissions
At the hearing the applicant made oral submissions. He stated that he took issue with the findings of the Tribunal that accepted he had been harassed by the Army and Navy, but that it did not find that he would suffer serious or significant harm if returned to Sri Lanka.
The applicant indicated a copy of the Minister’s written submissions had also been translated to him, to which he raised no submission in reply.
The applicant also stated that after the Tribunal’s decision, he received legal advice to the effect that he should pursue the course of seeking Ministerial intervention, rather than seeking judicial review of the Tribunal’s decision.
Minister’s Oral Submissions
Ms Carr, appearing for the Minister, indicated that the applicant’s oral submissions made at the hearing took issue with findings of fact made by the Tribunal, however, these findings were open for the Tribunal to make on the material before it and for the reasons it gave.
Minister’s Written Submissions
The Minister submits the impact on the applicant if he is not granted an extension of time may be significant as it may require him to return to Sri Lanka. However, and moreover, it is not in the interests of justice to extend time in circumstances where the delay has not been adequately explained and the grounds of review are unmeritorious.
The Minister contends that the delay in lodging the application of four and a half months is moderate and has not been adequately explained. Particularly:
a)The applicant set out in his application that after the Tribunal’s decision was handed down he received legal advice which informed him that he could seek Ministerial intervention. The applicant further set out that he did not want multiple applications on foot at the same time, instead, he preferred to wait for the outcome of his Ministerial intervention application before applying for judicial review; and
b)Attached to the applicant’s affidavit filed with his application in this Court is a letter from his representatives at the time of the Tribunal proceedings dated 8 October 2013, setting out the applicant’s options in light of the Tribunal’s decision. The letter clearly sets out that the applicant had three options; to seek judicial review, voluntarily depart Australia or seek Ministerial intervention. The letter emphasised that if the applicant sought judicial review, he needed to do so within 35 days. Therefore, as of 8 October 2013, the applicant was aware of his options and made a considered decision to pursue Ministerial intervention.
The Minister submits that an applicant’s pursuit of Ministerial intervention is not a satisfactory explanation for delay in commencing judicial review proceedings, as this course is an implicit acceptance of the legal validity of the Tribunal’s decision.
In respect of the merits of the substantive application, the Minister submits both grounds are unmeritorious. The first ground makes a broad allegation of jurisdictional error on the part of the Tribunal. Without particulars, the Minister argues this ground is meaningless. The second ground of review is a statement of fact and also does not assert how the Tribunal fell into jurisdictional error.
Consideration
First, I note the application before this Court pleads almost exactly the same ground in support of the application for an extension of time and the exact same grounds of the (substantive) original application as in SZTWI v Minister for Immigration & Anor [2014] FCCA 2038, a decision of this Court handed down 10 September 2014. The one notable difference is that the applicant has not sought to amend his pleadings in these proceedings, where such amendment occurred in SZTWI (supra). The relevant considerations for the Court to have regard to are of much the same nature.
The delay in the filing of the application for review in this Court is significant. The applicant filed his application approximately four and a half months out of time. Further, the applicant’s verbal explanation for his failure to lodge his application for review of the Tribunal’s decision in this Court is at odds with his own affidavit evidence. However, it is not necessary to consider this issue for the reasons outlined below.
The applicant submits this occurred because he received legal advice to the effect that an application could be made on his behalf to remain in Australia as Australia was looking for workers in the meat industry in which he was working at the time. The applicant did not want to have multiple proceedings on foot and decided to wait until a decision had been made in respect of his s.417 ministerial intervention application before pursuing judicial review.
His Honour Nicholls FM (as he then was) in SZROV v Minister for Immigration & Anor [2012] FMCA 1091 at [46]-[50] stated:
46. It can be said that there are two lines of authority as to the question of whether a decision to seek Ministerial intervention pursuant to s 417 of the Act before commencing an action for judicial review provides a reasonable explanation for any delay.
47. The Minister says it does not and relies on (at [25] of the respondent’s written submissions): Vu v Minister for Immigration & Citizenship [2008] FCAFC 59 at [32] per Jessup J, with whom Gyles and Besanko JJ agreed, Plaintiff M90/2009 v Minister for Immigration & Citizenship [2009] HCATrans 279 citing Hayne J in Re Minister for Immigration & Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364.
48. To these may be added: Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 at [9] per von Doussa J, Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21 (“Daniel”) at [15] per Goldberg J and M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 at [16]–[24] and [36] per Black CJ, Sackville and Sundberg JJ. See also my discussion in SZOCH v Minister for Immigration [2010] FMCA 300 at [38] and [53]–[54].
49. Contrary to this may be put the following authorities which range from the proposition that it does, to the position that it may when regard is had to the circumstances of each case: SZGNO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1816 at [11] per Graham J, SZFGO v Minister for Immigration & Citizenship [2008] FCA 1478 at [17]–[21] per Edmonds J, Hui v Minister for Immigration [2011] FMCA 486 at [29]–[30] per Smith FM, Kaur v Minister for Immigration [2010] FMCA 634 at [58]–[72] per Barnes FM and MZYII v Minister for Immigration & Citizenship [2011] FMCA 193 at [21] per Riley FM.
50. Although, other than for, respectfully, Applicants M160/2003 v Minister for Immigration, Multicultural & Indigenous Affairs [2005] FCA 195 (per Finkelstein J) the distinction may be one of emphasis, rather than substance. It is not necessary in the current case to consider this seeming distinction any further.
I am of the view that this issue need not be addressed in respect of these proceedings, for the reasons stated below.
I now turn to the merits of the applicant’s substantive grounds in the application.
Merits of the proposed substantive application
I accept the Minister’s submissions in respect of both grounds of review contained in the substantive application before the Court. The first ground is wholly unparticularised and no specific error on the part of the Tribunal is identified. Notwithstanding, I have had regard to the contents of the Court Book and the Tribunal’s Decision Record and no error is apparent on a fair reading thereof. Accordingly, this ground must fail.
The second ground of the application simply states that more details are to be provided by the applicant’s legal representative, however, I note there is no lawyer acting for the applicant in these proceedings. Accordingly, this ground also must fail.
The applicant’s oral submissions made at the hearing seek to cavil with findings of fact of the Tribunal. This submission is effectively an expression of disagreement with the findings of the Tribunal and a request for the Court to engage in merits review. As has been pointed out in many previous decisions of this Court, a merits review is not available: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 per Brennan CJ Toohey, McHugh and Gummow JJ at [31] where their Honours stated:
31. … [A]ny court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision…
For the benefit of the applicant, a merits review is an assessment of the appropriateness of a decision as distinct from a judicial review which focuses on the lawfulness of the earlier decision. These proceedings are seeking judicial review (and an extension of time to file the application) which asks whether the decision maker was authorised to do what he or she did under the prevailing law, not whether the actual decision was the best decision which could have been made in the circumstances. A merits review provides a complete rehearsal of all the issues relevant to the application and involves the consideration of all of the relevant material as well as any new evidence. The reviewing body makes a decision about the merits of the application, unfettered by the earlier decision or the reasons of the decision-maker of the earlier decision. A merits review is not permissible and, consequently, this ground cannot be sustained. The findings of fact made by the Tribunal were open to it to make on the material before it and for the reasons it gave.
Given the above, I have formed the view that the proposed grounds of review in the substantive application and raised orally by the applicant are unmeritorious and could not succeed at a final hearing.
Conclusion
I have had regard to the relevant considerations in respect of the Court’s discretion to grant an extension of time under s.477(2) of the Migration Act. I have also undertaken a fair reading of the Tribunal’s Decision Record and no error of law is apparent. On that basis, for these reasons and the reasons stated above, I am of the view that it is not in the interests of the administration of justice to extend time for the application for review to the date of its filing in this Court. Accordingly, the application for an extension of time should be refused with costs awarded to the Minister.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 16 September 2014
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