SZUNM v Minister for Immigration & Border Protection

[2014] FCCA 1934

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUNM v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1934

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 the administration of justice to extend time – application for extension of time refused.

Legislation:

Migration Act 1958 (Cth) ss.477

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: SZUNM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1656 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 Lewis D’Avigdor
(Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1656 of 2014

SZUNM

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”) in which to seek judicial review of a decision of the Refugee Review Tribunal (“the RRT”) dated 8 January 2014.

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 filed on 18 June 2014, some 128 days out of time. The applicant’s application for an extension of time was opposed by the first respondent.

4. The applicant was unrepresented before the court this morning, though had the assistance of an interpreter. I explained to the applicant that the two issues particularly relevant to his application this morning were his explanation for his delay and the prospects of success of his substantive application for judicial review of the RRT’s decision.

5. The applicant confirmed his explanation for his delay as identified in his application, filed on 18 June 2014, which stated as follows:

   “1. The applicant was unable to pay the Court fee and Legal Representation Fee

   2.   The applicant was unable to understand the Court Procedure”

6. That explanation is inadequate. The applicant was able to make a protection visa application. The applicant attended an interview with a delegate of the first respondent (“the Delegate”). The applicant was also able to lodge an application for review by the RRT of the refusal of the Delegate to grant him a protection visa. That conduct suggests that the applicant was sufficiently capable of pursuing his rights and interests when he chose to do so.

7. The grounds for judicial review are as follows:

   “1. In making decision, the Refugee Review Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant consideration.

   Particulars

   The applicant claims that the situation in Nepal was very dangerous. He attempted to settle in his own Country but because of fear of harm he came back again to Australia for the safety of harm. The RRT did not account all the circumstances in which he return to Nepal and come back to Australia.

   2. The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm.

   Particulars

   The applicant claims he would satisfy the criterion for protection under the Complementary protection arrangements as there are substantial grounds to believe there is a real risk that would suffer significant harm on return Bangladesh.

   The RRT ignored the relevant consideration related with complementary Protection set out in s 36(2)(a). He is subjected to a significant harm as consequences of being tried for murder with possibility that death sentence would be carried out on him.

   The RRT ignored real test of persecution and made decision with closed mind.” (Errors in original)

8. These grounds make bare assertions that are not particularised in a manner that would enable the Court to consider whether the RRT’s decision was affected by jurisdictional error (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).

9. For that reason, the grounds of the application were read to the applicant and the applicant was invited to say whatever he wished in support of his application.

10. The applicant confirmed to the court this morning that the statement in Ground 2, that the applicant is subjected to significant harm as a consequence of being tried for murder with the possibility that a death sentence would be carried out on him, is incorrect. The applicant told the Court that what he was intending to say was that he would be subjected to significant harm because he had been assaulted in the past.

11. At the heart of the applicant’s complaint is the failure of the RRT to accept his claims and to grant him a protection visa.

12. The first respondent’s solicitor, Mr D’Avigdor, read the affidavit of the applicant, sworn/affirmed on 18 June 2014 and filed on 18 June 2014. That affidavit annexed a copy of the RRT’s decision record.

13. It is clear from the RRT’s decision record that the complaint made in Ground 1, that the “RRT did not account all the circumstances in which he return to Nepal and come back to Australia”, appear to be incorrect. The RRT noted that the applicant said he returned to Nepal in April 2012 because he thought it would be peaceful and quiet but the situation was the same, so he returned to Australia. The RRT noted that it discussed with the applicant that one of the reasons he went to Nepal was to get a divorce.

14. In the particulars of Ground 2, the applicant asserts that the RRT ignored the applicant’s evidence that he was subjected to an assault in Nepal. Again, the RRT’s decision record makes clear that the RRT was aware of those claims and considered that claim.

15. Whilst I make no final decision about whether or not the decision is affected by jurisdictional error, none is apparent on the face of the RRT’s decision record and none has been identified by the applicant.

16. In the circumstances, I am not satisfied that it is in the interests of the administration of justice to extend time to the applicant in that such an order would have no utility.

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

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:             2 September 2014