SZUAM v Minister for Immigration & Anor
[2014] FCCA 2218
•10 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUAM v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2218 |
| 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 dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 426A, 477(1), 477(2) |
| Li v Minister for Immigration & Anor [2011] FMCA 12 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 258 WZASC v Minister for Immigration and Border Protection [2013] FCCA 1452 |
| Applicant: | SZUAM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 656 of 2014 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 10 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 10 September 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Nepalese interpreter. |
| Solicitor for the First Respondent: | Ms C Hillary 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) is refused.
The applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $3,326.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 656 of 2014
| SZUAM |
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 1315053, a decision of Tribunal Member C. Powles dated 21 January 2014, affirming the decision of a delegate of the Minister for Immigration and Border Protection (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 20 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 21 January 2014. 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 29 April 2014 to file and serve any amended application, affidavit evidence, written submissions or list of authorities upon which he sought to rely by 21 March 2014. The applicant elected not to file any documents in support of his application.
The solicitors for the Minister filed a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing on 10 April 2014. The volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister’s legal representatives. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.
The applicant is a male citizen of Nepal born in 1986 (CB 29). He arrived in Australia as the holder of a student dependent visa (CB 27). The applicant returned to Nepal in April/May 2010 (CB 23). In May 2012 the applicant was divorced in Australia (CB 28). The applicant’s own Student visa application was refused by a delegate of the Minister in July 2012. That decision was affirmed by the Migration Review Tribunal in November 2012.
The applicant applied for a Protection visa on 8 April 2013 (CB 1-26) and his claims were set out in a statement accompanying the application (CB 27-28).
A delegate of the Minister refused the applicant’s Protection visa application on 13 September 2013 (CB 55-57).
The applicant applied to the Tribunal for review of the delegate’s decision on 9 October 2013 (CB 68-90). The Tribunal acknowledged the application by letter sent to the applicant’s then representative on 10 October 2013 (CB 91-95).
The applicant, by letter dated 28 November 2013 and sent to his representative, was invited to a hearing before the Tribunal scheduled at 2:00pm on 21 January 2014 (CB 96-104). On 29 November 2013 the response to the hearing invitation was returned to the Tribunal indicating the applicant and his representative would both be attending the scheduled hearing (CB 105-106). The applicant’s representative, by letter dated 17 January 2014, wrote to the Tribunal to advise it the applicant would not be attending the hearing on 21 January 2014 (CB 107). The correspondence did not provide a reason nor did it seek an adjournment.
The applicant did not appear at the Tribunal hearing on 21 January 2014.
The Tribunal proceeded to make its decision on 21 January 2014 (CB 113-122), without taking further action to enable the applicant to appear before it, pursuant to s.426A of the Migration Act. A letter was sent to the applicant’s representative to notify him of the Tribunal’s decision on the same day (CB 108).
The Applicant’s Claims
In summary, the applicant claimed Maoists were targeting him and would harm him if he returned to Nepal because of political differences. He claimed:
a)He was involved with the Democratic Students’ Front which is associated with the Nepali Congress. He was involved in the organisation and the organisation attempted to inform people of the benefits of democracy;
b)Because of his association with this organisation communist party cadres targeted the applicant and he was placed on a “wanted” list; and
c)He came to Australia in 2008 and when he returned to Nepal in April 2010 to see his family members his personal enemies assaulted him.
The Tribunal’s Decision
The Tribunal, on the basis that the applicant expressly declined the hearing invitation, proceeded to make a decision in respect of the Protection visa application “on the papers”, pursuant to s.426A of the Migration Act (CB 116 at [21]).
The Tribunal set out various concerns it had, and found it was unable to be satisfied the applicant was involved with any political party in Nepal (CB 117 at [34]). It gave no weight to the applicant’s documentary evidence (CB 118 at [37]). The Tribunal ultimately concluded it was not satisfied the applicant satisfied the criteria for the grant of a Protection visa under the Refugees Convention or under the complementary protection provisions (CB 118-119 at [44]-[45]).
Current Proceedings
The application for review of the Tribunal’s decision filed in this Court seeks to review both the Tribunal’s decision (noted above at [1]), but also the decision made by an officer of the Department of Immigration and Border Protection (the “Department”) not to refer the applicant’s matter to the Minister for Ministerial intervention under s.417 of the Migration Act.
In this proceeding, the Court only has jurisdiction to review the decision of the Tribunal and does not have jurisdiction in respect of the Department’s officer’s decision not to refer the applicant for Ministerial intervention. The Court will proceed accordingly.
Pursuant to s.477(1) of the Migration Act, an applicant seeking review of a decision of the Tribunal in this Court must file their application within 35 days of the date of the Tribunal’s decision. Specifically in respect of these proceedings, the 35th day fell on 25 February 2014. As the application was filed on 17 March 2014, the application was filed out of time by 20 days.
The substantive application pleads the following three grounds:
1. Department of Immigration and Border Protection made decision without taking the matter to the Minister. My “significant change in circumstances” was ignored by the delegate of Minister at DIBP.
2. Refugee Review Tribunal (RRT) and DIBP decision was not based on the fact I presented at the time of application lodgement and interview. I submitted my outstanding court order against me in Nepal and newspaper article about threat to kill me which were ignored.
3. RRT and DIBP failed to consider my affiliation to Nepali congress which made me the prime target of Maoist Party in Nepal. They also failed to consider that I have genuine fear of my life if I go back to Nepal.
Extension of time
The application for extension of time in the application pleads the following two grounds.
1. If this honourable court decides to start the date from the decision date by Refugee Review Tribunal (RRT) then I would like to apply for extension of time as the decision was taken by RRT on 21/01/2014.
2. If this honourable court decides to start the date from decision date by the Delegate of Minister at Department of Immigration and Border Protection (DIBP) then I do not need extension of time. The date of decision by DIBP was on 26/02/2014.
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]).
Applicant’s Submissions
The extension of time application was set down for hearing on 10 September 2014. The applicant did not file any affidavit evidence, amended application or written submissions in support of his application for an extension of time.
At the hearing, the applicant sought an adjournment of the proceedings so he could obtain legal representation. When asked why he had not already done so in the period between 29 April 2014 and the hearing date, the applicant indicated he had attempted to do so, but lawyers were too expensive. He was in a difficult financial position and needed more time to get a lawyer.
When asked if he had submissions to make in respect of the application before the Court, the applicant indicated that his former migration agent told him what he should do and, specifically, that he did not wish to attend the hearing before the Tribunal.
The applicant also indicated he had read a copy of the Minister’s submissions, but had no comments to make in reply.
Minister’s Submissions
The Minister submits the impact on the applicant may be significant if he were to return to Nepal. However, and moreover, the Minister contends 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.
Length of the delay and the applicant’s explanation
The Minister submits the delay is moderate and has not been adequately explained.
Under the heading “Grounds of application for extension of time” the applicant states that if the Court “decides to start the date from the decision date by Refugee Review Tribunal” he seeks an extension of time, however, if the date is taken to be that of the delegate dated 26 February 2014 he does not require an extension of time.
The decision of the delegate referred to by the applicant, and annexed to his affidavit dated 17 March 2014, is a refusal decision relating to an application for Ministerial intervention under s.417 of the Migration Act.
Pursuant to ss.474(7) and 476 of the Migration Act, this Court does not have jurisdiction to review the decision not to refer the applicant for Ministerial intervention. Accordingly, the Minister submits the applicant does require an extension of time.
Insofar as the applicant can be taken to submit that his Ministerial intervention request is the reason he requires an extension of time, the first respondent respectfully submits that an applicant’s pursuit of Ministerial intervention is not a satisfactory explanation for delay in commencing judicial review proceedings in this Court as it is an implicit acceptance of the legal validity of the Tribunal’s decision.
Merits of the application
The Minister submits the grounds of the review are unmeritorious.
Ground 1 goes only to the decision of the delegate and that decision cannot be reviewed by this Court.
In respect of Ground 2, insofar as it alleges a failure on the part of the Tribunal to consider supporting documents submitted by the applicant, the Tribunal addressed each of the documents referred to. The Tribunal considered the newspaper clipping at [35] of the Decision Record (CB 117) and the court document at [36] (CB 118) and, in light of concerns it had with the documents and evidence in relation to document fraud in Nepal, placed no weight on either of the documents. The weight to be attributed to evidence is a matter for the Tribunal and it was entitled to give greater or lesser weight to the evidence before it.
Ground 3 of the substantive application alleges the Tribunal failed to consider the applicant’s affiliation with the Nepali Congress. The Minister contends that the applicant’s claimed affiliation with the Nepali Congress Party was expressly considered by the Tribunal. At [34] of its Decision Record (CB 117) the Tribunal found it was not satisfied the applicant was in fact politically active, involved with the Nepali Congress Party or any other party. The Minister argues this ground goes no higher than seeking impermissible merits review.
The Minister submits the application for an extension of time should be dismissed with costs.
Consideration
The extent of the delay in the applicant seeking judicial review of the Tribunal’s decision in this Court is 20 days. The applicant’s contention is that this delay came as a result of poor advice from the applicant’s former representative, however, no evidence in support of this claim was made available to the Court. The applicant appears to have been under the assumption that the period in which he could seek judicial review without requiring an extension of time commenced on the day his application for Ministerial intervention was refused.
Merits of the substantive application
Ground 1 of the application appears to be a complaint that the applicant’s application for Ministerial intervention (s.417 application) was not referred to the Minister. The function of this Court is to review the decision of the Tribunal to ascertain if there has been any jurisdictional error on its part. This Court has no jurisdiction to review the decision of the Minister’s delegate in relation to a decision not to refer the applicant for Ministerial intervention and accordingly this ground is unmeritorious.
Ground 2 of the application claims the Tribunal failed to have regard to evidence and documentation. This Court cannot consider the applicant’s claims in respect of what occurred before the delegate.
Insofar as the applicant claims the Tribunal did not have regard to his evidence at the hearing before it, this claim is unmeritorious as the applicant failed to attend.
Insofar as this ground alleges the Tribunal did not consider the applicant’s supporting documentation, this claim is unmeritorious. The Tribunal clearly had regard to the applicant’s supporting documentation at [30]-[38] of the Decision Record (CB 117-118) and made findings in respect of them. The weight to be attributed to evidence is a matter for the Tribunal and the Tribunal was entitled to give the applicant’s evidence the weight it did (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J; also see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 258 at 280-282).
Accordingly, in my view, Ground 2 of the substantive application is unmeritorious.
Ground 3 of the substantive application alleges the Tribunal failed to consider the applicant’s political affiliations that made him a prime target of the Maoist Party as well as the fact that he has a genuine fear for his life.
The Tribunal expressly considered the applicant’s claimed political affiliations at [30]-[34] of the Decision Record (CB 117) and found he was not politically active. This finding was open to the Tribunal on the material before it, noting the applicant failed to attend the hearing.
The Tribunal also made express findings at [39]-[43] in respect of whether the applicant had a genuine fear of persecution under both ss.36(2)(a) and 36(2)(aa) of the Migration Act and found he did not have a genuine fear. Against, this finding was open to the Tribunal on the material before it.
This ground goes no higher than seeking impermissible merits review (see Wu Shan Liang(supra)) and is unmeritorious.
Accordingly, in my view, the applicant’s substantive application would have no reasonable prospects of success if an extension of time were to be granted.
Conduct of Migration Agent
To the extent that the applicant makes a complaint about the conduct of his migration agent, this Court is not the appropriate forum for raising such a complaint and this was explained to the applicant at the hearing. I am not satisfied on the evidence before the Court that any allegation of fraud on the Tribunal by the applicant’s migration agent has any reasonable prospect of success.
Conclusion
There is no prejudice to the respondents if an extension of time were granted to the applicant. Further, the delay in lodging the application for review in this Court is only brief (20 days). The impact on the applicant if an extension of time were not granted would be significant as he may be forced to return to Nepal.
However, in my view, the substantive application itself, given the applicant’s failure to attend the Tribunal hearing, is unmeritorious and it is not in the interests of the administration of justice for an extension of time to be granted to the applicant to bring his application for review in this Court.
Consequently, the application for an extension of time should be refused with costs awarded to the Minister.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 10 September 2014
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