SZVTY v Minister for Immigration & Border Protection
[2015] FCCA 920
•27 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVTY v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2015] FCCA 920 |
| Catchwords: MIGRATION – 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, 477 |
| Cases cited: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 Abebe v Commonwealth of Australia (1999) 197 CLR 510 | ||
| Applicant: | SZVTY | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3392 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 27 March 2015 |
| Date of Last Submission: | 27 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 27 March 2015 |
REPRESENTATION
| The applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitor for the Respondents: | Ms Angela Nanson (Australian Government Solicitor) |
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 3392 of 2014
| SZVTY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
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 8 December 2014 was filed 109 days from the date of the decision sought to be reviewed. Section 477 of the Act is as follows:
“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.”
The decision of the Refugee Review Tribunal (“the RRT”) is dated 21 August 2014. In the circumstances, the applicant’s application for judicial review to this Court, filed on 8 December 2014, is 74 days in excess of the 35 day time limit provided for in s.477(1) of the Act.
However, 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 to the Court specifying why the applicant considers it is necessary in the interests of justice to make the order, and the Court is satisfied that it is necessary in the interests of justice to make the order extending the time period.
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).
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]).
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]).
The applicant attended a directions hearing on 5 March 2015 before a registrar of this Court and on that occasion was given leave to file and serve any evidence and submissions in support of his application for an extension of time by 18 March 2015. On that occasion the applicant was provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language, together with a copy of the costs schedule of this court. The matter was set down for hearing of the applicant’s application or an extension of time this morning.
The applicant was unrepresented before me this morning, although had the assistance of an interpreter. The applicant confirmed that he had not filed any documents in accordance with the directions of the court or otherwise. The applicant sought leave of the Court to give oral evidence of the reasons for his delay. That application was not opposed by the first respondent.
Prior to the applicant giving evidence, I explained to the applicant that the two matters that would particularly operate on the mind of the Court this morning in considering his application were the reasons for his delay and the prospects of success of his application for judicial review of a decision of the RRT dated 21 August 2014.
The substance of the applicant’s evidence was that his migration agent ceased to act for him shortly before the RRT hearing, that he attended the RRT hearing on 18 August 2014. The applicant gave evidence that he moved to a new address shortly thereafter, and that, some three months later, having not received a copy of the RRT’s decision record, went to his old address and obtained a copy of the decision. In cross-examination the applicant confirmed that he did not notify the RRT of his change of address following the hearing.
Plainly, it was the applicant’s responsibility to ensure that he provided those contact details to the RRT and the Department of Immigration and Border Protection, and is indeed required to do so by law. His failure to obtain a copy of the RRT decision record is, as the applicant acknowledged, his fault.
That is not a sufficient explanation for the delay.
However, for the sake of completeness, I will consider the prospects of success of the applicant’s application for judicial review of the RRT decision. The applicant confirmed that the grounds he relied upon are those identified in his initiating application filed on 8 December 2014. Those grounds are as follows:
“1. The decision of the Tribunal
a) is affected by the procedural unfairness
b) failed to take into account relevant considerations.”
Ground 1(a) asserts that the decision of the RRT is affected by procedural fairness. I asked the applicant in what way the RRT’s decision is affected by procedural fairness. The applicant responded that the RRT’s hearing took place on 18 August 2014, and his application to the RRT was rejected after only three days, and that time was not sufficient time for the RRT to have considered properly his application.
Plainly, such a complaint is not capable of establishing jurisdictional error on the part of the RRT. I explained to the applicant that the role of this Court was very different to that of the RRT, and that it is not for this Court to reconsider his claims and make different factual findings or reach different conclusions. I explained that the only issue before this court was whether or not the decision of the RRT was made according to law or was affected by a mistake that goes to its jurisdiction. I also informed the applicant that disagreement with the findings and conclusions of the RRT rarely, by itself, establishes an error that goes to the RRT’s jurisdiction.
Three days is an unremarkable amount of time for the RRT to have made its decision following the hearing. There was no request made by the applicant to the RRT for any further time to provide any further material to the RRT, or that the applicant made any request for any further reason.
In the circumstances, the applicant’s complaint in Ground 1(a) has no prospect of success.
Ground 1(b) asserts that the RRT failed to take into account relevant considerations. I asked the applicant what was the relevant consideration that the RRT failed to take into account. The applicant responded that he had told the RRT that he had used a fake name and that he wished to have a certificate to certify his genuine name so that it could be provided to the Roads and Maritime Services so that his licence could be issued in his real name. He said that the RRT told him that was beyond their duty. Whilst I am not fully aware of all the duties that the RRT has, there is nothing before me to suggest that their duties include the provision of such a certificate. In the circumstances, I am not satisfied that the RRT has any such power, and in the absence of any such evidence the applicant’s complaint of Ground 1(b) has no prospect of success.
For the sake of completeness, I accept that summary as accurate the first respondent’s written submissions summarised the relevant background to this matter and the RRT’s decision as follows:
“Background
12. The applicant, who claimed to be an Indonesian national, arrived in Australia on 12 April 1998 on a visitor visa. On 21 April 1998, he lodged an application for a Protection (class XA visa (the visa). That application was lodged under the name of Terry Joseph Bolang. The applicant claimed he was born to an ethnic Chinese family in Minahasa, Indonesia in 1970 and that, from 1990 to 1998 he lived in Jakarta. The applicant claimed a fear of persecution on the basis of his Chinese ethnicity.[1]
13. On 21 April 1998, that application was refused. On 20 February 2014, the applicant was re-notified of the 1998 decision (resulting from the decision in Srey v Minister for Immigration (2003) 134 FCR 308).[2] On 28 February 2014, the applicant, care of his agent Mr Wang, lodged an application for review of the 1998 decision to the Tribunal.[3]
14. On 17 March 2014, the agent forwarded what was described as ‘new protection claim’ from the applicant to the Tribunal. The applicant admitted that he had previously used a false passport in the name of Jerry Joseph Bolang with which he had applied for the visa. The applicant claimed he did not know any specific details of that application as the man who helped him did not explain or provide a Chinese version of the application. The applicant’s new claims were set out in a translated statement[4] and summarised in the Tribunal’s Reasons at [12].[5]
15. The applicant claimed he had been a member of an underground local church in China and would be persecuted for this reason and for leaving China on a false passport.[6] The applicant claimed he had attended church in Australia and was baptized on 15 November 2009.[7] He claimed that in early 2012, he provided church materials to his nephew who visited China but the government confiscated them. He claimed his nephew was on a Black List and was investigated by police. As a result of a house search, the police discovered materials linked to the applicant and interrogated his family.[8]
16. The applicant also referred to the fact of another application for the visa which he had lodged in 2009 in his true name. In that application he had falsely claimed that he had been ‘smuggled into Australia by boat’. The applicant said he ‘felt deeply sorry and apologetic toward my past behaviour of dishonesty.[9] The application for the 2009 visa had been refused, which decision had been affirmed by the Tribunal. The applicant then applied to the then Federal Magistrates Court. On 7 February 2011, the application was dismissed: SZOOJ v Minister for Immigration [2011] FMCA 56.
17. On 25 June 2014, the Tribunal issued an invitation to comment on or respond to information pursuant to s 424A of the Act. In that invitation the Tribunal set out the findings made by the previous Tribunal and advised that it may have regard to, and take to be correct, any decision that the Tribunal made about or because of that information.[10] From the Tribunal’s records no response was received from the applicant.
[1] CB 1-28
[2] CB 30-37
[3] CB 43-56
[4] CB 67-70
[5] CB 116
[6] CB 69 [10]
[7] CB 68-69 [7]-[9]
[8] CB 69 [11]
[9] CB 68 [5] and 69 [12]
[10] CB 84-87
Tribunal decision
18. The Tribunal accepted that the applicant was a national of China and, on the basis of evidence given by the applicant, rejected the claims made by him in his 1998 application finding there was no real chance he would be persecuted for any Convention reason as a result of being an ethnic Chinese and an Indonesian national.[11]
19. The Tribunal found the applicant completely lacked credibility. The Tribunal took into account his untruthfulness in relation to his initial claims and his indifference with regard to familiarising himself with the content of that application. The Tribunal found the applicant made a deliberate effort to fabricate his claims (‘by action or gross omission’) to obtain the visa.[12]
20. The Tribunal did not accept the applicant’s explanation for his failure to mention the content of the 1998 application in his 2009 application for the visa finding instead that the applicant ‘… believed it gave him a better chance of obtaining the protection visa’. The Tribunal found the applicant had been ‘…consistently and deliberately untruthful in his dealings with Immigration when seeking protection visas.’ While noting the applicant’s apologies for his past mistakes, the Tribunal placed no weight on those assurances.[13]
21. The applicant now claimed that he had been involved with an underground local church in China since 1990. However, the Tribunal found the applicant’s responses to questions put to him about this involvement were ‘very vague and uninformative’. The Tribunal also found the applicant displayed no knowledge of the local church’s believes and practices. For the reasons it gave based on the applicant’s evidence, the Tribunal found the applicant had never participated in the local church and that he had no interest in or commitment to the local church. The Tribunal found there was no real chance the applicant would be persecuted for reason of his religion.[14]
22. The Tribunal next addressed the applicant’s claim of a ‘road rage incident’ which occurred in China in 1993 when he was involved in a motorbike accident and subsequently shot in the back. Noting the applicant did not report this to the police or seek medical treatment, the Tribunal found this claim implausible. As the applicant was unable to identify any further harm arising from this incident, the Tribunal found there was no real chance the applicant would suffer any harm in the future and therefore that his fear was not well founded.[15]
23. With regard to the written materials the applicant claimed to have sent to his nephew in China and the events which he claimed followed, the Tribunal noted the applicant had difficulty recalling this claim. The Tribunal also found the applicant’s evidence to be vague, confused and contradictory and found he had not been truthful in relation to this claim.[16]
24. While the Tribunal did not accept the applicant had any exposure to the church or Christianity in China, it did not find his attendance in church in Australia was solely for the purpose of strengthening his claim to be a refugee and accepted that the applicant might have developed a genuine commitment to Christianity in Australia. However, the Tribunal found these activities would not cause any adverse interest in, or risk of persecution towards, the applicant upon his return to China. The Tribunal also accepted the applicant might wish to engage in religious practice upon return to China and that, given the applicant’s evidence was that all churches were the same, he could do so in China at any of the many churches, both registered and unregistered, operating freely in China and in Fujian Province. [17]
25. The applicant claimed he would be persecuted because he used a false passport to leave China and that he had been on a PSB black list for the past 10 years. However, the Tribunal noted the applicant had approached the Consulate in Sydney and obtained a new Chinese passport in 2012 and did not consider there was a real chance he would be persecuted for the reason claimed.[18]
26. The Tribunal noted the applicant repeatedly said that he had been living in Australia for many years and did not wish to return to China. The Tribunal considered this was the sole reason for the application for the visa and that the applicant had fabricated his claims to achieve this end.[19]
27. Having considered the applicant’s claims singularly and cumulatively, the Tribunal found the applicant did not have a well-founded fear of persecution and did not satisfy the criterion set out in s 36(2)(a) of the Act. For similar reasons, the Tribunal also found the applicant was not entitled to complementary protection under s 36(2)(aa).[20]”
[11] CB 117 [14]
[12] CB 117 [16]
[13] CB 117 [17]-[19]
[14] CB 118-120 [21]-[26]
[15] CB 120-121 [27]-[31]
[16] CB 121-122 [32]-[37]
[17] CB 122-124 [41]-[44]
[18] CB 124-125 [45]-[48]
[19] CB 125 [49]
[20] CB 125 -126 [50]-[57]
Whilst I make no final finding as to whether or not the RRT’s decision is affected by jurisdiction error, none is apparent on the face of the RRT’s decision record, and none has been identified by the applicant this morning. Whilst I accept that there is prejudice to the applicant in refusing to extend time to him to seek judicial review of the RRT’s decision, in balancing the interests of both parties and the overall interests of justice, there is a significant public interest in the finality of administrative decisions (see: Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491).
In light of the unsatisfactory explanation for the applicant’s delay and that the applicant’s application for judicial review of the RRT’s decision appears to have no prospects of success, in the circumstances, I am not satisfied that it is necessary in the interests of justice to extend time to the applicant.
Accordingly the applicant’s application for an extension of time should be refused with costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 14 April 2015
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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