SZUYC v Minister for Immigration

[2017] FCCA 336

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUYC v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 336

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – application for an extension of time to bring proceedings – relevant considerations.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 425, 426A, 441A, 441C, 474, 477

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZUYC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2325 of 2014

Judgment of: Judge Cameron

Hearing date: 16 February 2017

Date of Last Submission: 16 February 2017

Delivered at: Sydney

Delivered on: 16 February 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr D. Hughes

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The applicant’s application for an extension of time within which to bring this proceeding be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,646.00.

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2325 of 2014

SZUYC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Lebanon who arrived in Australia most recently on 26 March 2013.  On 9 May 2013 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Lebanon because of his political opinion.  The applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision.  However, on 9 April 2014 the Tribunal affirmed the decision of the delegate not to grant him a protection visa. 

2. On 20 August 2014 the applicant applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015. The application was filed outside the limitation period prescribed by s.477 of the Migration Act 1958 (“Act”) so the applicant has applied for an extension of time within which to bring this proceeding.

3. For the reasons which follow, the application for an extension of time within which to bring this proceeding will be dismissed.

APPLICATION FOR AN EXTENSION OF TIME

1. Section 477 of the Act provides the time limit which applies to proceedings for judicial review of Tribunal decisions in respect of which this Court has jurisdiction. At the time the applicant commenced this proceeding, it relevantly provided:

   477 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:

   …

   (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); …

2. Because the Tribunal’s decision was dated 9 April 2014, the applicant had until 14 May 2014 to commence this proceeding.  The application was not filed until 20 August 2014 and so it was brought out of time.

Application in writing citing reasons

1. The consequence of the application having been filed late is that the Court must consider the two questions posed by s.477(2). The first of these is whether an application has been made to the Court for an extension of time.

2. The application commencing this proceeding contained an application for an extension of time and set out the basis on which the applicant said that an extension of time would be in the interests of the administration of justice.  The initial criteria for the granting of an extension of time have therefore been satisfied. 

Interests of the administration of justice

1. The second question posed by s.477(2) is whether it is in the interests of the administration of justice to extend time. In the circumstances of this case, that question will be determined by whether the applicant has provided a satisfactory explanation for the delay in commencing the proceeding and whether the allegations made in the substantive application for judicial review have sufficient merit that the Court should consider them at trial.

Satisfactory explanation for delay

1. It is apparent from the date of the letter from the applicant’s migration agent to the Tribunal, namely, 11 April 2013, that the applicant was aware of the Tribunal’s decision well within the 35 day limitation period prescribed by s.477.

2. In his application commencing this proceeding the applicant stated that he had sought ministerial intervention in his case.  In his evidence at the hearing of this application the applicant agreed that he had discussed with his then-migration agent the fact that the latter was going to write to the Minister seeking his intervention.  According to p.177 of the Court Book, which was exhibit B, the applicant’s request for ministerial intervention was declined some time prior to 1 August 2014, which was the date of the departmental letter to the applicant notifying that outcome. 

3. The authorities show that it is not a satisfactory explanation for the delay in commencing proceedings such as these that an applicant has elected to seek ministerial intervention and to await the outcome of that process before seeking judicial review of the Tribunal’s decision.  However, the applicant’s evidence was, and I accept, that his migration agent had not advised him that a 35 day limitation period applied to judicial review proceedings such as these.  I conclude that the applicant did not make an informed decision to choose one avenue over the other in the sense that he was not aware that choosing ministerial intervention over judicial review might create a risk of being time barred in this proceeding. 

4. In the circumstances, I am satisfied that the applicant has provided a satisfactory explanation for the delay in commencing the proceeding.

Merits of substantive application

1. In relation to the question of the merits of the substantive application, it should be noted that in proceedings for judicial review of a Tribunal decision, the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, before the Court would conclude it to be in the interests of the administration of justice to extend the time within which to bring a proceeding, it is necessary that an applicant demonstrate that his or her case has sufficient merit that the Court should consider it at trial. I have concluded that the applicant has not done that.

Background facts

1. The facts alleged in support of the applicant’s claims for a protection visa were made in a statement attached to his application form and at an interview with the delegate on 30 October 2013.  As summarised by the Minister in his written submissions, the applicant relevantly made the following claims:

   … the applicant claimed to fear persecution in Lebanon by reason of his political activity against the Syrian regime, Hezbollah and their allies in Lebanon.  He claimed that 80 members of his family have been killed at the hands of the Syrian army as a result of their support for anti-Syrian uprisings.  He claimed that he had been involved in online campaigns seeking the removal of the Syrian army and Hezbollah from Lebanon, and as a result had been harassed, threatened and persecuted. …

2. The applicant’s protection visa application was refused by the Minister’s delegate on 12 November 2013.  On 25 November 2013 the applicant applied to the Tribunal for a review of that decision and appointed a migration agent as his representative and authorised recipient of correspondence.

3. On 18 March 2014 the Tribunal wrote to the applicant, via his migration agent, pursuant to s.425 of the Act to advise him that it had considered all the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to a hearing on 9 April 2014 to give oral evidence and present arguments. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on the application without further notice. No response was received from the applicant and he did not appear before the Tribunal on the day and at the time he was scheduled to appear. In these circumstances, and pursuant to s.426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.

4. After discussing the claims made by the applicant and such evidence as there was before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967, or s.36(2)(aa) of the Act. The Tribunal found in this regard that the information provided by the applicant in his application was not sufficiently detailed to enable it to be satisfied that the applicant faced a real chance of persecution.

5. The Tribunal’s decision record was faxed to the applicant’s migration agent on 10 April 2014 under cover of a letter of the same date.  Shortly afterwards, a copy of that notification letter was (again) faxed to the applicant’s migration agent, however, this time a decision of the Migration Review Tribunal concerning another applicant was inadvertently enclosed.  According to the Tribunal’s case notes, the applicant’s migration agent subsequently called the Tribunal “because he wanted an explanation as to why a decision was made on [the applicant’s] case without him receiving a hearing invitation”.

6. On 11 April 2013 the applicant’s migration agent wrote to the Tribunal and submitted that the applicant ought to be given a second chance to present his evidence at a hearing.  He submitted that he did not receive the hearing invitation letter of 18 March 2014 and that the Tribunal’s “recent communication mix-up” demonstrated that errors occurred.  It was submitted that the applicant missed the hearing for reasons “completely out of his control” and that he had not been provided with a reasonable opportunity to argue his case before the Tribunal.

7. On 15 April 2014 the Tribunal advised the applicant’s migration agent that it had made its decision on 9 April 2014 and so it was functus officio with no power to take any further action on the review.

Application for judicial review

1. The applicant’s initiating application to this Court did not set out any grounds of review.  However, he made various allegations and arguments in his supporting affidavit which I have taken into account.

2. The substance of the applicant’s argument is that the Tribunal’s decision was affected by jurisdictional error because he had not received the invitation to the Tribunal’s hearing, with the consequence that it had not truly exercised its jurisdiction and was not functus officio.  The applicant also argued that the Tribunal’s jurisdiction had not been exercised because he had not originally been given the correct decision record.

3. I conclude that the Tribunal’s decision record was, in fact, sent to the applicant even though it appears that he was sent additional material which should not have been sent to him.  I note in that connection that the applicant’s migration agent’s letter to the Tribunal, dated 11 April 2013, was reproduced at p.139 of the Court Book.  It relevantly stated:

   On 10 April 2014 at 2:09pm the RRT sent me the notification of decision as well as the decision record in respect of [the applicant’s] application for review.  At 2:42pm I received an additional fax on behalf of [the applicant] which contained only the first six pages of the Decision.  Even worse, the RRT replaced the key (missing) pages, with part of the decision of another person – Mr [name supplied] – who is not even my client..... (emphasis included)

4. I also find that the Tribunal’s invitation of 18 March 2014 was sent in accordance with the procedure provided by the Act. That was summarised in paras.11 and 12 of the Minister’s written submissions, which I repeat and adopt:

   Sections 425A(2) and 441G(1) of the Act required the Tribunal to give the applicant notice of the hearing by transmitting the hearing invitation to his authorised representative by one of the methods specified in s 441A of the Act. One of the methods so specified is for the Tribunal or one of its officers to transmit the document by facsimile to the last fax number provided to the Tribunal by the recipient (in this case the agent) in connection with the review: s 441A(5). In this case, that number was the Agent Fax Number, which the agent had given by signing the application directly underneath the Agent Fax Number: CB 85, and again at CB 89. Further, s 441C(5) provides that where a document is so transmitted, the recipient must be taken to have received the document on the day it was sent.

   Accordingly, the agent must be taken to have received the hearing invitation on the day it was sent, ie 18 March 2014.  Further, by reason of s 441G(2), the applicant must also be taken to have been given the invitation on that date as a result.

5. It should be noted that, relevantly, the Act is not concerned with whether a communication sent pursuant to s.441A is received in fact. It is sufficient, by virtue of s.441C, that the communication is sent in accordance with the Act. If it is, then it is deemed to have been received. Consequently, whether or not the applicant received the invitation to the Tribunal’s hearing, the fact that the Tribunal’s letter of 18 March 2014 was sent in accordance with the Act, as I have found it was, is sufficient to conclude that he is deemed to have been notified of that hearing.

6. As to the Tribunal’s actual decision, there was no jurisdictional error identified in it.  The Tribunal reached a straightforward conclusion that the evidence was insufficiently detailed for it to be satisfied that the applicant was entitled to a protection visa. 

7. Further, no error attached to the Tribunal’s decision pursuant to s.426A to proceed to make a decision. The Tribunal had followed the notification procedure stipulated by the Act and the applicant had not attended the scheduled hearing. The facts of the case do not suggest that the Tribunal erred by exercising its discretion to proceed to a decision. Specifically, the applicant did not point to anything which would support a finding that it was unreasonable in the relevant sense for the Tribunal to have proceeded to make a decision.

8. Consequently, upon the Tribunal publishing its decision to the applicant, which it did no later than 2:09pm on 10 April 2014, it became functus officio.  The applicant’s representations in relation to having been denied a hearing were made after that point.  In the circumstances, the Tribunal was correct when it advised the applicant’s agent, in relation to those representations, that its hands were tied. 

9. In those circumstances, I am not of the view that the applicant’s case for setting aside the Tribunal’s decision has sufficient merit that the Court should consider it at a trial.

CONCLUSION

1. For the reasons I have discussed, notwithstanding that the applicant has provided a satisfactory explanation for the delay in commencing this proceeding, I find that it is not in the interest of the administration of justice for time to be extended for the commencement of this proceeding and so the application for such an extension will be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 6 March 2017