SZUMQ v Minister for Immigration & Border Protection

[2014] FCCA 1395

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUMQ v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1395

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:

Migration Act 1958 (Cth), ss.36, 417, 426A, 477
Federal Circuit Court Rules 2001 (Cth), r.44.12

Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176
Singh v Minister for Immigration and Citizenship [2013] FCA 813
SNSYE v Minister for immigration and Citizenship [2010] FCA 500
Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802
WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
Vu v Minister for Immigration and Citizenship [2008] FCAFC 59
SZOZG v Minister for Immigration and Citizenship [2011] FCA 756
Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618
SZIQP v Minister for Immigration and Citizenship [2008] FCA 169
SZHFX v Minister for Immigration and Citizenship [2008] FCA 355
M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR 520
Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 21; (2004) ALR 198
Re Commonwealth of Australia;  Ex Parte Marks  [2000] HCA 67; (2000) 177 ALR 491

Applicant: SZUMQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1565 of 2014

Judgment of: Judge Emmett

Hearing date: 1 July 2014

Date of Last Submission: 1 July 2014

Delivered at: Sydney

Delivered on: 1 July 2014

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter.

Solicitors for the Respondent: Ms Michelle Stone
(DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1565 of 2014

SZUMQ

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 for judicial review filed on 10 June 2014 was filed more than 270 days from the date of the decision sought to be reviewed.

2. Section 477 is in the following terms:

   “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. The decision of the Refugee Review Tribunal (“the RRT”) is dated 31 July 2013. 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 and it is necessary in the interests of justice to make the order.

2. The application filed by the applicant on 10 June 2014 seeks that time be extended to him and in the grounds for application for an extension of time the applicant says applicant applies for extension of time to seek leave to appeal. The grounds of the application are set out in the accompanying affidavit. An affidavit of the applicant was filed in support on that date and it annexed a copy of the Tribunal’s decision record. However there was no further explanation for the applicant’s delay provided in that affidavit.

3. 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 (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).

4. In deciding whether to grant an application for an extension of time, the application should have such prospects of success as not to render the extension of time an exercise in futility (see Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [20]; WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9]).

5. If an application has no prospect of success, an extension of time – even for a short period – may be refused (see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23], citing Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] per Jessup J, with whom Gyles and Besanko JJ agreed; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J; Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]; SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 at [22]; SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 at [19]).

6. In the applicant’s application for judicial review, filed 10 June 2014, the applicant identified the grounds of his application for an extension of time as follows:

   “1. The tribunal made jurisdictional error without looking at the facts.

   2. The tribunal don’t give him time to reappeared and explain his claim.

   3. Applicant is a truthful witness that if he will go back he will killed by upper caste people.”

7. The applicant was unrepresented before the court today although had the assistance of an interpreter.

8. The application for an extension of time is opposed by the solicitor for the first respondent on the basis that the applicant has not provided an adequate explanation for his delay and that the grounds of his application do not raise an arguable case for the relief claimed.

9. I explained to the applicant that the two issues that would be operating on the mind of the Court in considering his application would be his explanation for the delay and the prospects of success of the grounds of his application. The grounds were read to the applicant and he was invited to say whatever he wished in support. The applicant informed that Court that the reason that he had not filed an application seeking judicial review within the 35 day period is because he had decided to seek ministerial intervention.

10. In relation to the grounds of his application, the applicant said that the RRT did not give him any time. I note that the RRT’s decision record states that on 20 May 2013, the RRT wrote to the applicant advising him that it had considered all the material before it relating to the application but was unable to make a favourable decision on that information alone.

11. The RRT invited the applicant to give oral evidence and present arguments at a hearing on 25 July 2013 and the applicant was advised that if he not attend the hearing and a postponement was not granted, the RRT may make a decision on his case without further notice.

12. The RRT stated that the invitation was sent to the address the applicant nominated in his review application where he wanted the RRT to send correspondence about the application. No response was received. The applicant did not appear before the RRT on the day and at the time and place at which he was scheduled to appear. Accordingly, the RRT decided to make its decision on the review without taking any further action to enable the applicant to appear before it pursuant to s.426A of the Act. In considering the applicant’s claims, the RRT found the information in support to be vague and lacking detail and noted that it had many questions it wished to ask the applicant about his claims.

13. Ultimately, the RRT was not satisfied that the applicant met the refugee criterion under s.36(2)(a) of the Act or the alternative criterion of s.36(2)(aa) of the Act.

14. It is well established that an applicant’s conduct in making an appeal to the Minister 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).

15. There is a significant public interest in the finality of administrative decisions. The relevant principles are referred to in Re Commonwealth of Australia;  Ex Parte Marks  [2000] HCA 67; (2000) 177 ALR 491, in which McHugh J stated at [15]-[17] as follows:

    “15. An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases. Nevertheless, the applicant is seeking the quashing of a decision of the AIRC made 17 months before he filed his application for relief in this Court.

    16. Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, "[t]he rules of court must prima facie be obeyed". The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.

    17. An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.” (emphasis added)

16. The applicant’s explanation is entirely inadequate for the delay of more than 270 days. In considering the prospects of success of the applicant’s application for judicial review of the RRT’s decision, I note that the grounds themselves are entirely unparticularised and make bare assertions that do not disclosure an error capable of review by this court. The applicant’s complaint that the RRT did not give him any time is not supported by any evidence.

17. The first respondent tendered three documents. Exhibit 1R is the letter of invitation from the RRT to the applicant dated 20 May 2013. That invitation informs the applicant of the date, time and location of his hearing. It also informs the applicant that the RRT would only change that hearing date for good reason and that the applicant should contact the RRT immediately if the applicant is unable to attend the hearing on that date. The letter also states that if the applicant fails to attend the scheduled hearing, the Tribunal may make a decision without taking further action to allow or enable the applicant to appear before it.

18. Exhibit 2R is a letter dated 31 July 2013 from the RRT to the applicant annexing a copy of the RRT’s decision record together with information about RRT decisions. That information informs the applicant that he may seek judicial review in this court of the RRT’s decision.

19. Exhibit 3R is an email sent by the applicant to the first respondent on 7 September 2013 annexing a copy of his letter seeking ministerial intervention pursuant to s.417 of the Act.

20. There is nothing on the face of the RRT’s decision record to suggest that it was not entitled to exercise its discretion pursuant to s.426A of the Act to decide to make its decision on the review without taking any further action to enable the applicant to appear before it. The fact that the applicant would have liked another opportunity to appear before the RRT is not capable of demonstrating an error that goes to the RRT’s jurisdiction in the circumstances of this case.

21. In the circumstances, the grounds of the applicant’s application has no prospects of establishing jurisdictional error on the part of the Tribunal and if leave was granted to the applicant to seek judicial review of the RRT’s decision record, the application is likely to be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) on the basis that the application does not raise an arguable case for the relief claimed.

22. Accordingly, I’m not persuaded that it is necessary in the interests of justice that time be extended to the applicant to seek judicial review of the decision of the RRT dated 31 July 2013.

23. Accordingly, the applicant’s application to extend time is refused.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:  9 July 2014