SZOTH & Anor v Minister for Immigration & Anor [2011] FMCA 59 (7 February 2011)

Federal Magistrates Court of Australia

[Index] [Search] [Download] [Help]

---

SZOTH & Anor v Minister for Immigration & Anor [2011] FMCA 59 (7 February 2011)

Last Updated: 11 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOTH & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 59

MIGRATION – PRACTICE & PROCEDURE – Application for an extension of time pursuant to section 477 of the Migration Act – whether extension necessary in the interests of the administration of justice – whether reasonable explanation for delay – whether grounds of application have any, or any reasonable prospects of success.

Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.65(1); 424A, 425, 477

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 NAHI v MIMIA [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29

Applicants:

SZOTH & SZOTI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2399 of 2010

Judgment of:

Emmett FM

Hearing date:

7 February 2011

Date of Last Submission:

7 February 2011

Delivered at:

Sydney

Delivered on:

7 February 2011

REPRESENTATION

The Applicant appeared in person assisted by a Fijian interpreter

Solicitors for the Respondents:

Ms K. Whittemore (Sparke Helmore)

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2399 of 2010

SZOTH

First Applicant

SZOTI
Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 5 November 2010, the applicants filed an application in this Court seeking an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) to be allowed to rely on grounds of the application filed on that date for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 16 December 2009.
2. Section 477 of the Act requires that the application for judicial review be filed in this Court within 35 days of the date of the Tribunal’s decision.
3. However, the Court has power to extend that period where an application for that order is made in writing, 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 the administration of justice to make the order. I accept that the applicant had made an application for an extension of time in writing on the basis that the Tribunal’s decision is affected by jurisdictional error. The issue this morning is whether it is necessary in the interests of the administration of justice to make the order sought
4. The first applicant attended a directions hearing before this Court on 1 December 2010. On that occasion, the first applicant was directed to file and serve any evidence in support of his application for an extension of time by 7 January 2011, and to file and serve written submissions in support of that application, by 21 January 2011.
5. At the directions hearing on 1 December 2010, in addition to the directions made by the Court, the first applicant was provided with the contact details of legal services providers and translating and interpreting services. I also explained to the applicant that the issues for the Court in considering his application for an extension of time would be his explanation for delay in filing his application seeking judicial review of the Tribunal’s decision and the prospect s of success of that application. However, no document has been filed by or on behalf of the first applicant, either in accordance with those directions or otherwise.
6. The first applicant confirmed that he is the first-named applicant on the application, and that the second-named applicant is his wife, and that her claims are entirely dependent on his claims. I note that the second applicant did not attend Court today, and the first applicant confirmed that he appeared on behalf of both applicants.
7. The first applicant appeared unrepresented before this Court this morning, although had the assistance of a Fijian interpreter.
8. At the commencement of the hearing, the Court again explained to the first applicant that in considering his application, the Court would be having regard to the reasons and explanation for his delay in filing his application and the prospects of success of his application.

Explanation for delay

9. I explained to the first applicant that there was presently no evidence before this Court as to any explanation for his delay in filing his application before this Court within the statutory 35-day period. The applicant then said that he had explained things to the Tribunal, and that, subsequent to the Tribunal’s decision, he was trying to get evidence from Fiji to show how difficult it was for him to stay in Fiji, as well as evidence to show that it was difficult for any person to stay in Fiji, and also to confirm his position in the church.
10. I explained to the first applicant that there was no evidence before this Court of any attempts made by him to obtain any of that information or any explanation as to why he had no such information. The first applicant responded that he was unable to write a letter because no evidence had arrived, and he would need someone to assist him in writing that letter.
11. I accept the written submissions of the first respondent that the application for judicial review to this Court was required to be lodged by 20 January 2010, and was not lodged until 5 November 2010, some nine months later. There is nothing in the submissions made by the first applicant this morning that provides any reasonable explanation for that delay.
12. As stated above, the applicants have not filed evidence to explain that delay, despite being directed to do so on 1 December 2010. Even if I was to accept as evidence, the submissions that the first applicant gave from the bar table, they do not in any way reasonably explain the first applicant’s delay in filing his application to this Court. In any event, the Tribunal accepted that the first applicant’s is a pastor in a church as claimed.

Prospects of success

13. In relation to the grounds of the application filed by the first applicant, they essentially allege bias or apprehended bias on the part of the Tribunal and a failure to comply with s.424A of the Act. There are other complaints that could be taken to allege a breach of s.425 of the Act. However, none of the 19 paragraphs of the grounds of appeal are supported by particulars, evidence, or submissions, and the first applicant declined to make any further submissions in support of any of those grounds this morning.
14. The grounds are as follows:
    1. “The tribunal was infected with jurisdictional error and the procedural error and no evidences (sic) were sought.
    2. There was no fair trial at the hearing by the Tribunal and I was not aware of my rights to federal lodgements.
    3. The Tribunal has been illogical in its application.”
15. To the extent that the grounds allege bias on the part of the Tribunal, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
16. In the absence of any evidence before me, I accept as accurate the Tribunal’s decision record in respect of the summary of the claims made by the applicants and the discussions the Tribunal had with the applicants in making its findings that it did and reach the conclusions that it did.
17. The only evidence currently before the Court of what occurred at the Tribunal hearing is the Tribunal’s decision record annexed to the first applicant’s affidavit, sworn/affirmed 27 October 2010. The Tribunal’s decision record makes clear that the applicants attended a hearing before the Tribunal at which their claims were explored.
18. The Tribunal decision record makes clear that the Tribunal had regard to country information in considering the applicants’ claims. The Tribunal cited passages from country information to which it had particular regard. The Tribunal noted that: the applicants made almost identical claims in their protection visa application forms; their hearing rights have been trampled on in Fiji since Bainimarama’s takeover; there was no council of chiefs and no ports; judges fear for their lives; there is lawlessness; the military has taken over control of all government departments; the military has a network of people in Australia who report back to Fiji on people who apply to stay in Australia permanently; and, the applicants’ immediate family would be harmed.
19. The Tribunal decision record makes it clear that the Tribunal had regard to material provided by the applicants in support of their claims. The Tribunal noted that, on the applicants’ own evidence, they are not members of any political party, although the Tribunal accepted that they were supporters of Qarase. However, the Tribunal found that there was no evidence that ordinary supporters of Qarase or those who voted for him in the past were being targeted for harm by the current regime in Fiji.
20. The Tribunal found the applicants’ political profile to be slight and found that there was not a real chance that the applicants would be subject to serious harm for reasons of their political opinion should they return to Fiji. The Tribunal also found that the issue of religion in Fiji has begun to occupy a more prominent position in the total political landscape, especially following the banning of a Methodist conference and the detention of some of the ministers. The Tribunal understood that the applicant was a pastor and accepted that claim and that he may be speaking publicly as part of that role. The Tribunal noted the first applicant’s claim that he may not be able to say what he liked in his church in the context of being able to make political statements. However, the Tribunal found that, even if he was so restricted, it did not constitute a restriction of the ability to practise religion.
21. The Tribunal found that there was no evidence before it to suggest that the applicants had any real chance of persecution in Fiji now, or in the reasonably foreseeable future for the Convention reason of religion. The Tribunal noted that it considered the applicants’ claims individually and cumulatively and found that the applicants did not have a well-founded fear of persecution in Fiji for any Convention reason that complied with the Refugees Convention, as amended by the Refugees Protocol. Accordingly, the Tribunal affirmed the decision under review.
22. There is nothing on the face of the Trbiunal’s decision record to suggest any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
23. There is nothing on the face of the Trbiunal’s decision record to suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [27]- [32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [115]).
24. Accordingly, the allegations of bias or apprehended bias, as presently pleaded, have no, or no reasonable, prospects of success.
25. Ultimately, it was the Tribunal’s task to assess the evidence and material before it and to make findings on that evidence and material. In the circumstances, it would appear that the Tribunal complied with s.425 of the Act in inviting the applicants to come to a hearing to give evidence and present arguments and in the conduct of that hearing.
26. It would appear that the Tribunal placed reliance on country information which it identified in relation to the political situation in Fiji and assessed the applicants’ claims in that context. It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (NAHI v MIMIA [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
27. Ultimately, the Tribunal does not appear to have been satisfied that the applicants’ fears were well-founded and was not satisfied that they met the criteria for refugees in accordance with the Refugees Convention, as amended by the Refugees Protocol. It was for the applicants to satisfy the Tribunal that they met the criteria for being refugees. If the Tribunal was not so satisfied, s.65(1)(b) of the Act required the Tribunal to reject the applicants’ protection visas.
28. In relation to the allegation of a breach of s.424A of the Act, again, the first applicant was unable to identify at the hearing this morning any information which enlivened those obligations, and none is apparent on the face of the Tribunal’s decision record. The information to which the Tribunal had regard and which was the reason or part of the reason for affirming the decision under review was information given by the applicants in support of their review application and country information. Such information is excluded from the obligations of s.424A(1) of the Act by reasons of s.424A(3)(b) and s.424A(3)(a) of the Act.
29. On the face of the Tribunal decision record, it would appear that the review has been conducted in accordance with the statutory regime and that the findings and conclusions made by the Tribunal were open to it on the evidence and material before it, and for the reasons it gave.
30. In the circumstances, it would not appear that any of the grounds of the applicants’ application to this Court for judicial review of the Tribunal’s decision has any, or any reasonable prospects of success.
31. In the circumstances, the first applicant has not demonstrated any error on the part of the Tribunal that goes to its jurisdiction either on the face of the Tribunal’s decision record or as expressed in the unparticularised grounds of the application filed on 5 November 2010. Nor has the first applicant made any relevant submission this morning to suggest any ground or complaint with any, or any, reasonable prospects of success.
32. In the circumstances, it would not be in the interests of justice to extend time to the applicants to be allowed to pursue his application for judicial review in this court.
33. Accordingly, the application for an extension of time pursuant to s.477(2) of the Act should be dismissed with costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 10 February 2011