SZOIL v Minister for Immigration & Anor [2010] FMCA 439 (23 June 2010)

Last Updated: 30 June 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOIL v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 439

MIGRATION – Extension of time for show cause application – application refused – no point of principle.

Migration Act 1958 (Cth), s.477

SZMFJ v Minister for Immigration [2009] FMCA 771

Applicant:

SZOIL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 797 of 2010

Judgment of:

Driver FM

Hearing date:

23 June 2010

Delivered at:

Sydney

Delivered on:

23 June 2010

REPRESENTATION

Solicitors for the Applicant:

Mr M Newman Newman & Associates

Solicitors for the Respondents:

Ms B Rayment Sparke Helmore

INTERLOCUTORY ORDERS

(1) The Application in a Case filed 31 May 2010 is dismissed.
(2) The application filed on 2 June 2010 is dismissed as incompetent.
(3) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 797 of 2010

SZOIL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an Application in a Case filed on 31 May 2010 seeking the exercise of the Court’s discretion to extend time, pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Migration Act”), for the filing of a show cause application. That application was, in fact, received on 2 June 2010, by leave in court. It seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 15 June 2005 and, presumably, handed down some time later. Under transitional provisions relating to the enactment of the currently applicable time limits in s.477 of the Migration Act, the Tribunal decision is taken to have been made on 15 March 2009.
2. The Application in a Case is supported by two affidavits by the applicant made on 12 April 2010 and on 21 May 2010. I also have before me an affidavit by the applicant’s solicitor annexing a copy of the Tribunal decision.
3. The applicant was examined on his affidavits. In the course of that examination two documents were tendered. Exhibit A1 is a form of application for review to the Tribunal in the applicant’s case and exhibit R1 is a letter dated 5 July 2005 from the Tribunal to the applicant at his nominated address for service, notifying the applicant of the outcome of his review application. In essence, the applicant contends that he should be given an extension of time because he relied on a migration agent to conduct his case before the Tribunal but the agent failed to keep him informed of his status.
4. In the course of cross-examination the applicant made a number of concessions. He conceded that although he and his parents had sought the assistance of a Mr Kumar in 2005 in connection with both their protection visa applications and, later, their review applications, the involvement of Mr Kumar was not disclosed to the Minister’s Department or the Tribunal and his assistance was limited.
5. At the time of the review application to the Tribunal the applicant gave evidence that Mr Kumar had told him and his parents that they could, “do it on their own,” which I understand to refer to the review process. The applicant attended a hearing before the Tribunal without the assistance of Mr Kumar and acknowledged receipt of the Tribunal decision and the letter forming exhibit R1 which accompanied it.
6. The applicant acknowledged being aware, at the time of the receipt of that letter in 2005, of his rights of review before the courts. The applicant stated that after the Tribunal hearing he and his parents went to see Mr Kumar at his office in Fairfield but the office was empty and Mr Kumar was gone. They made several return visits after the Tribunal hearing but Mr Kumar did not return. They saw a further two migration agents in 2006, but they were unable to assist. The applicant conceded nothing further was done after that until the applicant was detected by Departmental compliance officers and an initial review applicant was filed[1] and later the present applicant were filed.
7. I accept from the decision of this Court in SZMFJ v Minister for Immigration [2009] FMCA 771 that there are a number of considerations relevant to the grant or refusal of an extension of time under s.477(2). These are:
   1. the extent of the delay and the reason for the delay;
   2. whether there is any merit in the substantive application;
   100. whether there is any prejudice to the respondents;
   4. the impact on the applicant;
   5. the interest of the public at large; and
   6. the Court’s discretion.
8. The section itself enjoins the Court to grant an extension of time only if it is satisfied in the interest of the administration of justice that it is necessary to do so.
9. In the present case, the Tribunal decision was made almost five years ago, although it has taken to have been made much more recently, on 15 March 2009. The delay is a significant one. The explanation for the delay is, in my view, unsatisfactory. It is not plausible, as the applicant contends, that he assumed over the entire period that Mr Kumar was continuing to act on his behalf in circumstances where he knew that Mr Kumar had closed his office and departed to some place unknown and he knew that he had been unsuccessful before the Tribunal and had a limited time to exercise his right of judicial review.
10. I accept that the applicant and his parents consulted other advisors in 2006 who were unable to assist. The applicant’s explanation for that inability was a lack of documents. However, he said that he did not show the other advisors the Tribunal decision. I think also it was likely that, at that stage, any application to this Court would have been out of time under the then applicable legislation.
11. There was a suggestion that in 2009 a different Mr Kumar made a request for Ministerial intervention under s.417 of the Migration Act. The Minister’s solicitor was not able to verify that. In my view, the applicant has not adequately explained his delay in coming to the Court to seek review of a decision of the Tribunal actually made in 2005.
12. I am also concerned at the lack of merit in the proposed substantive application. That application raises one ground which is an allegation of bias. The particulars are that the presiding member, without drawing on any supportive authority, categorised a report prepared by or on behalf of the Department of Foreign Affairs and Trade as having the quality of independence and, therefore, making it worthy of the Tribunal’s unquestioning acceptance. It is said that there was and remains no legal authority, so far as is known, for the proposition that country reports have that undefined quality of independence.
13. Secondly, it is asserted that the Tribunal erred when it assumed that that evidence, even if it was independent, and without defining what the criteria for such an appellation would be, drew an unwarranted inference that the quality of independence in some undefined way lent accuracy to the report.
14. Further, it is alleged that the Tribunal erred when it relied upon a report of some vintage without disclosing what, if any, material was examined before so concluding.
15. The applicant is an ethnic Indian from Fiji and had made claims of persecution in that country. The claims were based upon the applicant’s own evidence. The Tribunal was unable to find independent corroborative evidence that the applicant was at serious risk of harm in Fiji because of his Indian ethnicity.
16. In the course of its decision, the Tribunal had regard to information, apparently from the Department of Foreign Affairs and Trade, about the general situation in Fiji at that time. The information was general and did not exclude, necessarily, the particular problems said to have been suffered by the applicant. However, it is not the function of this Court to embark upon a review of the merits of the Tribunal decision and, as has been stated on several occasions, it will only be in exceptional cases that an allegation of bias can be supported simply by reference to the Tribunal’s reasons for its decision.
17. In the course of argument, the applicant’s solicitor sought to place significance on the use of block capitals in the Tribunal’s decision in referring to the independent information. I see nothing of significance in that and it may simply reflect the fact that the original document was prepared in that way. I reject the contention that the capitalisation of certain of the information was intended to mean that the information was in some way irrefutable. In my view, there is very little merit in the substantive application.
18. The Minister concedes that there would be little prejudice if an extension of time were granted. There would, on the other hand, be a significant impact on the applicant as he will have exhausted his rights of review and would become subject to removal from Australia. I also take into account the public interest both in certainty and finality in administrative decisions concerning protection visa claims and also in ensuring that such decisions are lawfully made. However, I am not persuaded that the applicant has raised anything that seriously calls into question the validity of the Tribunal decision.
19. The Court has a general discretion, taking into account the foregoing matters to which I have referred, and I am not persuaded that the interests of the administration of justice call for the grant of an extension of time in this case.
20. Accordingly, I will order that the Application in a Case filed 31 May 2010 be dismissed and that the show cause application, filed in court by leave on 2 June 2010, be dismissed as incompetent. I so order.
21. The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $2,000. That is in addition to the costs order previously made by me on 2 June 2010. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the Application in a Case, fixed in the sum of $2,000.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 28 June 2010

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[1] That application sought review of a Tribunal decision this year that it had no jurisdiction to entertain a second review application, as the Tribunal’s decision in 2005 was assumed to be a valid exercise of the Tribunal’s powers of review.