SZUCY v Minister for Immigration and Border Protection
[2014] FCCA 1161
•27 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUCY v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 1161 |
| 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 application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time – application for extension of time refused. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) r.13.03C |
| Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 34 |
Applicant: | SZUCY |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 816 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 27 May 2014 |
| Date of Last Submission: | 27 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 27 May 2014 |
REPRESENTATION
| The applicant appeared in person with the assistance of an interpreter |
| Solicitors for the Respondent: | Ms Ada Wong (DLA Piper) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 816 of 2014
| SZUCY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”), the applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 23 October 2013 (“the RRT”).
The applicant also applies for an extension of time pursuant to s.477 of the Act in circumstances where her application for judicial review, filed 21 January 2014, was filed more than 35 days from the date of the decision sought to be reviewed.
Section 477 of the Act is as follows:
“Time limits on applications to the Federal Circuit Court
(3) In this section:
‘date of the migration decision’ means:
(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
(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 RRT is dated 23 October 2013. In the circumstances, the applicant’s application for judicial review to this Court, filed on 26 March 2014, is 119 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, 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 justice to make the order, and the Court is satisfied that it is necessary in the interests of justice to make the order extending the time period.
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 and the explanation of that 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 her application filed on 26 March 2014, the applicant set out the following grounds for an extension of time:
“1. The reason why I did not appeal my application on time is because I did not receive my refusal letter. I was staying in Brisbane for a short period, and my landlord was not able to contact me because I changed by phone no. After I back to Sydney on 24/3/2014, I just got to know my result.
2. I wish the Federal Circuit Court of Australia could consider my situation”
The applicant’s application is opposed by the first respondent.
The applicant was unrepresented before the Court this afternoon, although had the assistance of a Mandarin interpreter.
I explained to the applicant that the two issues of particular significance for the Court would be her delay in filing her application seeking judicial review of the RRT’s decision, and the prospects of success of that application.
The explanation provided by the applicant for the delay in seeking judicial review was that she was in Brisbane at the time of the RRT’s decision; that she did not receive the refusal letter; and, that her landlord was not able to contact her regarding the arrival of a letter addressed to her because she had changed her telephone number, is entirely unsatisfactory. It is the applicant’s responsibility to ensure that she is contactable by the Department of Immigration and Border Protection at all times.
The applicant’s application for judicial review, filed on 26 March 2014, stated the grounds of review as follows:
“1. The Tribunal Members should take my Falun Gong activities in China Hong Kong into account. The reason why I did not mention it in my written statement is because the main reason I apply for refugee protection visa as I was prosecuted by the corrupted government due to I took part in some political demonstrations.
2. The Tribunal Members should consider my explanation during the interview. I did not apply for protection visa in the first time because I do not have any friends in Australia when I arrived, even though I knew my situation could apply for protection, but I still need to seek for help as I have no English foundation and it takes times.
3. I wish the Federal Circuit Court of Australia could consider my situation.”
The grounds of the application were interpreted for the applicant and the applicant was invited to make submissions in support of the grounds. The applicant made no relevant submissions.
Ground 1 asserts that the RRT should have taken into account the Falun Gong activities in China and in Hong Kong.
The solicitor for the first respondent, Ms Ada Wong, read the applicant’s affidavit affirmed on 24 March 2014 and filed on 26 March 2014, annexing a copy of the RRT’s decision record, dated 23 October 2013. The RRT decision record makes clear that the applicant raised for the first time before the RRT that she had taken part in Falun Gong activities in China and Hong Kong.
The RRT’s decision record identifies or refers to the exchanges that the RRT had with the applicant about that evidence and the applicant’s failure to mention it in her statement of claims in support of her protection visa application.
Ultimately, the RRT was not persuaded that the applicant had reasonably explained why she had not mentioned those claims and was not satisfied that they were true. That is a finding of fact that would appear to be open to the RRT on the evidence and materials before it.
In the circumstances, ground 1 does not identify any jurisdictional error on the part of the RRT and appears more to be a disagreement with the findings and conclusions of the RRT. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
In relation to ground 2, the applicant asserts that the RRT should have considered her explanation as to why she did not apply for a protection visa when she first arrived in Australia.
Again, the RRT’s decision record makes clear that that issue was explored with the applicant. However, the RRT ultimately found that her conduct was not consistent with her claims as to why she left the country and formed part of the RRT’s reasons for its adverse credibility findings in respect of the applicant’s claims as a whole.
It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
There is nothing to suggest that those findings were not open to the RRT on the evidence in the material before it and for the reasons it gave. Ground 2 also cavils with the RRT’s findings and as such, seeks merits review.
Ground 3 is a bare assertion that does not identify any error capable of review by this Court.
In the circumstances, the grounds of the application, filed on 26 March 2014, do not raise an arguable case for the relief claimed.
Accordingly, the interests of justice are not served by extending time to the applicant to seek judicial review of the RRT’s decision, and the applicant’s application for an extension of time should be refused with costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 6 June 2014
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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Appeal
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