SZUNH v Minister for Immigration & Border Protection

[2014] FCCA 1930

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUNH v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1930

Catchwords:
MIGRATION – Review of decision by Migration 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 the administration of justice to extend time – application for extension of time refused.

Legislation:

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

SZFDE v. Minister for Immigration and Citizenship [2007] HCA 35
M211of 2003 v Refugee Review Tribunal [2004] FCAFC 293
Daniel v Minister for Citizenship and Multicultural Affairs [2004] FCA 21
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

Applicant: SZUNH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1642 of 2014

Judgment of: Judge Emmett

Hearing date: 26 August 2014

Date of Last Submission: 26 August 2014

Delivered at: Sydney

Delivered on: 26 August 2014

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Mr Liam Dennis
(Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1642 of 2014

SZUNH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The applicant seeks an order pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) that time be extended to her to seek judicial review of a decision of the Refugee Review Tribunal (“the RRT”) dated 23 December 2013.

2. Section 477(1) of the Act requires that any applicant for judicial review be made within 35 days of the date of the RRT’s decision. Section 477(2) of the Act provides that the Court may extend that period if the Court considers that it is in the interests of administration of justice to do so.

3. The applicant’s application for judicial review was not filed until 17 June 2014, some five months in excess of the time limit. The application for an extension of time is opposed by the first respondent.

4. The applicant is unrepresented before the Court this morning, although has the assistance of an interpreter. I explained to the applicant that the two issues particularly relevant to her application this morning were her explanation for her delay and the prospects of success of her substantive application for judicial review of the RRT’s decision.

5. The applicant sought and was granted leave to give oral evidence this morning. The applicant was duly sworn. Her evidence was to the effect that she was aware that on 9 January 2014, her migration agent wrote to the Minister for Immigration and Border Protection seeking Ministerial intervention pursuant to s.417 of the Act. The applicant gave further sworn evidence that that on 2 June 2014 she was notified that the Minister had decided not to intervene.

6. The applicant otherwise confirmed her explanation for her delay as identified in her application, filed on 17 June 2014, which stated as follows:

   “1. The Refugee review tribunal made a decision on 23 december 2013 , my migration agent sent a letter to the minister dated 9 January 2014 without my knowledge that I can apply for a review. On 2 June 2014 my migration agent told me that the minister did not intervene in my case. The department of immigration gave me a bridging visa and asked me to provide a ticket for travel to another country. The only option available to me is to start this review because I can not depart Australia.” (errors in original)

7. The explanation by the applicant is inadequate. It is a matter for the applicant the course that she chooses to adopt upon the RRT making its determination in respect of the applicant’s review application. It is well established that mere negligence of a migration agent is not sufficient to establish jurisdictional error on the part of the RRT (see SZFDE v. Minister for Immigration and Citizenship [2007] HCA 35).

8. In any event, it is well established that an applicant’s conduct, in seeking Ministerial intervention under s.417 of the Act, is indicative of a decision by the applicant to abandon a course that would seek to challenge the decision of the RRT on grounds that may otherwise have been available under the Act (see: M211of 2003 v Refugee Review Tribunal [2004] FCAFC 293; Daniel v Minister for Citizenship and Multicultural Affairs [2004] FCA 21).

9. The grounds for judicial review are as follows:

   “1. The member of the refugee review tribunal misunderstood my claim.

   2. The member of the refugee tribunal was bias against me.

   3. I will give a copy of the transcript as evidence that I was unfairly treated at the refugee review tribunal.”

10. These grounds make bare assertions that do not disclose any error capable of review by this Court.

11. Each of the grounds was interpreted for the applicant and the applicant was invited to say whatever she wished in support of each of the grounds.

12. It was plain from the applicant’s responses that her complaint was with the findings and conclusions of the RRT and the fact that it did not believe her claims.

13. Such assertions 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).

14. If time was extended to the applicant to seek judicial review of the RRT’s decision, it is likely that the application would 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.

15. In all the circumstances before me, I am not satisfied that it is in the interests of the administration of justice to extend time to the applicant. Such an order would have no utility.

16. Accordingly, the applicant’s application for an extension of time is refused.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:             2 September 2014