SZURF v Minister for Immigration & Border Protection

[2014] FCCA 2685

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZURF v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 2685

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Whether time should be extended to applicant to file an application for judicial review pursuant to s.477 of the Migration Act 1958 (Cth) – 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.36, 91R, 477

Federal Circuit Court Rules 2001 (Cth) r.44.12

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: SZURF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1897 of 2014

Judgment of: Judge Emmett

Hearing date: 12 November 2014

Date of Last Submission: 12 November 2014

Delivered at: Sydney

Delivered on: 12 November 2014

REPRESENTATION

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

Solicitors for the First Respondent: Mr Julian Pinder (Minter Ellison)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1897 of 2014

SZURF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application by the applicant that time be extended to her under s.477 of the Migration Act 1958 (Cth) (“the Act”) to allow her to seek judicial review of a decision of the Refugee Review Tribunal (“the RRT”) dated 16 April 2014.

2. Section 477 of the Act requires that the applicant file an application for judicial review of the RRT’s decision with this Court within 35 days from the date of the Tribunal’s decision record. Section 477(2) of the Act grants power the Court has power to extend time to the applicant if the Court is satisfied that it is necessary in the interests of justice to do so.

3. The applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter. I explained to the applicant that the two issues that would operate significantly on the Court would be her explanation for her delay and the prospects of success of her application.

4. Time for the filing of an application for judicial review of a Tribunal decision expired on or about 21 May 2014. The applicant’s application for judicial review was not filed until 9 July 2014, some 49 days late.

5. The applicant’s written grounds in support of her application of extension of time are as follows:

   “1. In or about a couple of months ago, the Migration Agent notified me by phone that the review application was affirmed by the Review Refugee Tribunal (RRT) [sic]. I have asked the RRT decision reason and hard copy of decision record. But it has never been sent to me.

   2. Since then, I have made phone calls to the Migration Agent on weekly basis to the copy of decision record.

   3. In order to meet my request, the Migration Agent sent me the Decision Record of Immigration Department rather than the RRT Decision Record, or she told me that RRT decision record could not be found.

   As such, a copy of RRT Decision Record was not delivered to me until 3 July 2014 by fax.

   4. After receiving its copy, I filed the judicial review application to your honourable court immediately without further delay.”

6. The applicant sought leave to give oral evidence to supplement that explanation.

7. In her evidence-in-chief the applicant said that her previous lawyer had not contacted her; that she could not contact that lawyer because she had misplaced her mobile phone; and, that she went to Campsie where the offices of her migration agent were and was told that they were moving and did not have time to look for a copy of the RRT’s decision.

8. The applicant was cross-examined by the first respondent’s solicitor. The effect of the applicant’s evidence was that she was aware within the 35-day period that the decision of the RRT had affirmed the delegate’s decision and that she had been unsuccessful.

9. The applicant conceded, in cross-examination that she had taken no step to contact the RRT at any point to obtain a copy of the decision, nor had she engaged in any written correspondence with her migration agent requesting a copy of the RRT’s record. The only steps taken by the applicant were to seek to try and contact her migration agent.

10. Based on that evidence, the applicant’s explanation for delay in seeking judicial review of the RRT’s decision is not satisfactory. The applicant was aware that she had been unsuccessful within the 35 day period, but neither approached the RRT to obtain a copy of the decision nor wrote to her migration agent requesting a copy. The applicant has a responsibility to properly inform herself of her appeal rights. It is more than reasonable at least to expect her to approach the RRT for a copy of its decision once she knew it had been made and not provided to her by her migration agent. 

11. In relation to the grounds of the substantive application, I invited the applicant to say whatever she wished in respect of each of those grounds, which are as follows:

    “1.The decision of the Tribunal:

    A. Failed to take into account relevant considerations.

    B. Is affected by procedural unfairness”

12. Ground 1 was interpreted to the applicant and I asked the applicant what were the relevant considerations that the tribunal had failed to take into account. The applicant’s response was that the RRT had not believed she was a Catholic or that she had suffered persecution.

13. Ground 2 asserts that the decision of the RRT is affected by procedural fairness. I asked the applicant in what way the RRT’s decision was affected by procedural unfairness and the applicant responded that the RRT had not believed her.

14. Plainly, the complaints of the applicant are in the nature of a disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review which this Court cannot undertake (see 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).

15. Whilst I make no final finding whether the decision of the RRT was affected by jurisdictional error, none was raised by the applicant and none is apparent on the face of the RRT’s decision record.

16. The RRT’s decision record makes clear that the applicant attended a hearing before it and that the RRT explored with the applicant, in some detail, her claims to have been persecuted in China because of her Catholicism and her attendance at an underground church.

17. The applicant also claimed that she had been forced to undergo a tubal ligation, and that she had not been properly compensated in respect of a work place accident in which her husband died. The RRT found the applicant’s evidence to be inconsistent, confused and generally unpersuasive, and that her claims to have been harmed in China by reason of being a Catholic to have been fabricated. The RRT comprehensively rejected her claims to have been a Catholic in China or harmed for that reason.

18. The RRT also noted various inconsistencies in evidence given by the applicant to a delegate of the first respondent and put those concerns in writing, post-hearing, to the applicant. The RRT noted the applicant’s responses although, ultimately it did not accept them. The RRT appears to have accepted that the applicant may have undergone a forced tubal ligation, however, found that this that was pursuant to a law of general application.

19. The RRT noted that it had regard to photographs provided to it by the applicant but did not find that they assisted in establishing that the applicant was a Catholic in China. The RRT also had regard to a letter from a Father Peng, which it found not to be genuine and that it found to have been fabricated for the purpose of the applicant’s review application.

20. In relation to the activities of the applicant in Australia, being her involvement with the Asiana Church and the convent in Annandale, the RRT found that those activities were undertaken for the sole purpose of strengthening her claims to be a refugee and, accordingly, pursuant to s.91R(3) of the Act, disregarded that conduct in considering whether the applicant was entitled to protection.

21. There is nothing on the face of the RRT’s decision record to suggest that its findings were not open to it on the evidence and material before it and for the reasons it gave. The RRT’s conclusions, that the applicant did not satisfy the criterion on ss.36(2)(a) or in 36(2)(aa) would also appear to be open to it for the reasons it gave.

22. In the circumstances, I am not satisfied that the applicant’s application for judicial review has any, or any sufficient, prospects such that it is necessary, in the interests of justice, that time be extended to her to seek judicial review of the RRT’s decision.

23. Accordingly, the applicant’s application that time be extended to her to allow her to seek judicial review of a decision of the RRT should be refused, with costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Emmett.

Associate:

Date:         19 November 2014