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SZOUJ & Anor v Minister for Immigration & Anor [2011] FMCA 83 (4 February 2011)
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Federal Magistrates Court of Australia
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SZOUJ & Anor v Minister for Immigration & Anor [2011] FMCA 83 (4 February 2011)
Last Updated: 22 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
SZOUJ & ANOR v
MINISTER FOR IMMIGRATION & ANOR
|
|
MIGRATION – Application for extension of
time – where applicant received Tribunal decision some 18 months prior to
filing
application with the Court – where applicant claimed his migration
agent told him not to take any action and gave inconsistent
evidence about when
he became aware that he could make an application to this Court – merits
of the application considered
– whether Tribunal failed to properly
consider corroborative evidence. |
|
First Respondent:
|
MINISTER FOR IMMIGRATION & CITIZENSHIP |
|
Hearing date:
|
4 February 2011
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Date of Last Submission:
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4 February 2011
|
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Delivered on:
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4 February 2011
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REPRESENTATION
Solicitors for the Respondents: |
DLA Phillips Fox
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ORDERS
(1) Application for extension of time dismissed.
(2) Applicants to pay the First Respondent’s costs assessed in the sum of
$2,935.00.
|
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT
SYDNEY
|
SYG 2500 of
2010
First Applicant
Second Applicant
And
MINISTER FOR IMMIGRATION &
CITIZENSHIP
|
First Respondent
Second Respondent
REASONS FOR JUDGMENT
- There
comes before me this morning an application to extend the time in which an
applicant may be permitted to file an application
to this Court seeking review
of a decision of the Refugee Review Tribunal pursuant to s.477 of the
Migration Act 1958 (Cth) (the “Act”). That section
imposes a time limit on applications to this Court of 35 days but provides in
sub-s.2
that:
- “The
Federal Magistrates Court may, by order, extend that 35 day period as the
Federal Magistrates Court considers appropriate
if:
- (a) an
application for that order has been made in writing to the Federal Magistrates
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 Magistrates Court is satisfied that it is necessary in the interests of
the administration of justice to make the
order.”
- In
the instant case, the application for extension of time was made in writing by
being included within the application itself. The
form which the applicant used
states:
- “Note:
an extension of time is required if the application is not made within 28 days
of the actual (as opposed to deemed)
notification of decision; see section 477
The Migration Act 1958. If it is required, the applicant must file an affidavit
explaining the delay and the reasons why an extension of time should be
granted.”
This note is inaccurate because s.477 was
amended to provide for a 35-day limit some considerable time prior to 19
November 2010 when the form was completed. It is only
to be hoped that the
forms available on the internet which the applicant undoubtedly used have now
been changed to accurately reflect
the statutory position.
- Underneath
the note extracted above, the applicant has given as a ground for extension of
time:
- “The
decision of SAAP was not in force and therefore there was a miscarriage
of justice. The Tribunal fell into jurisdictional error in that it did not
consider all the applicant claims. I believe that it is important for the shake
[sic] of natural justice that my application be
allowed for filing with
extension of time.”
The applicant also filed an
affidavit which he had sworn on 4 November 2010, but this only states that the
Tribunal did not accept
him as a credible witness and attaches the decision
record.
- As
SAAP v Minister for Immigration [2005] HCA 24; (2005) 228 CLR 294 was decided by the
High Court of Australia in 2005, it can hardly be said that it was not in force
in 2009 when the decision of the
Refugee Review Tribunal was made. And as the
applicant filed no evidence explaining the reasons for the delay and why an
extension
of time should be granted, this Court could well dismiss the matter at
this point. However, the applicant gave some evidence as
to the reasons for his
delay and it is well that the Court deals with that.
- The
applicant told that he received a copy of the decision of the Tribunal shortly
after it was handed down on 26 March 2009. He says
that he didn’t speak
much English and so he didn’t really understand the nature of the
decision. He didn’t do anything
about it immediately but contacted the
person who he said was his migration agent. He had given no indication that he
had a migration
agent in either his PVA or his application to the Tribunal.
Indeed, he told the Tribunal in section (c) of his application [CB 58]
that he
did not have an adviser authorised to act for him in relation to this
application. There must, therefore, be considerable
doubt as to whether the
applicant had a registered migration agent acting for him or whether he just
relied on the advice of “friends”.
- He
told the Court after he sent the documents to the agent, the agent informed him
that he still had another year on his visa and
that he should do nothing. The
applicant then told that, in or around August 2009, he went to the Immigration
Department because
his wife was having a baby and he wanted some assistance. He
was then advised that he was illegal, so he approached a friend and
the friend
advised him that he could make an application to the Minister. When he was
giving his evidence, the applicant said that
the friend also told him that he
could apply to this Court.
- The
applicant did apply to the Minister in August 2009 and that application was
rejected in January 2010. The applicant told that
he received the rejection
letter and said that he knew at that time that he could make an application to
the Court.
- The
applicant did nothing about the rejection from the Minister until about March
2010, when he told his boss. His boss told him that
he thought he could sponsor
him for a visa, presumably a s.459 type visa. The applicant told the Court that
he knew then that he could apply to this Court for review of the decision of the
Tribunal.
There was then a hiatus until the application was made and, under
cross-examination, the applicant said that it was only then that
he was told
that he could make an application to this Court.
- I
was not impressed by the way in which the applicant gave his evidence. I quite
understand that, even with the benefit of an excellent
interpreter such as Mr
Sani, it may still be difficult for a non-English speaker to grasp the full
import of some questions. However,
Ms Whittemore made it clear to the applicant
that she had concerns about the date upon which he was prepared to admit he knew
about
his rights to apply to this Court and he still effected to change that
date three times in a manner which he considered would best
assist his
case.
- I
am, therefore, unable to accept that the first time the applicant became aware
of his right to approach this Court for review of
the decision was shortly
before the application was filed. I think his first evidence, that the person
who told him about his rights
to ask the Minister to intervene also told him
about his rights to apply to the Court, is more likely to be the truth.
- In
my view, the delay by the applicant in making this application has not been
satisfactorily explained to a state that the Court
can be satisfied that it was
necessary in the interests of the administration of justice to extend the
period.
- Even
if it could be said, following the decision of Gararth v Minister for
Immigration [2006] FCA 316, that the applicant was entitled to wait until
after the Minister’s decision upon his request for intervention had been
determined,
there was still a delay of some 10 months before filing and I note
that in Vu v Minister for Immigration [2008] FCAFC 59 Jessop J, with whom
Gyles and Besanko JJ agree, held [29]:
- “I do
not think that the applicant’s approach to the Minister under section 351
of the Act provides an acceptable explanation for his failure to lodge an appeal
within time.”
- Although
I am of the view that the application should be dismissed because of the
applicant’s lack of explanation, I believe
I should consider the merits of
the application itself because, if they were overwhelming, then perhaps the
delay might be forgiven.
Unfortunately for the applicant in this case, they are
not.
- The
applicant is a citizen of India who the Tribunal accepted had some connection
with the Congress Party. It did not accept that
he controlled 8000 votes in his
local area, as he claimed. Nor did it accept that shortly before an election,
the applicant and
his wife were kidnapped and held by persons associated with
the BJP in order to prevent him getting out those votes.
- The
Tribunal based its findings on the applicant’s credibility, which are
findings that are for the Tribunal to make and not
for this Court to interfere
with. Given the applicant’s evidence and the independent country
information, the decision of
the Tribunal was based upon available evidence and
the conclusions it made were logical.
- In
a substantive application to this Court, the applicant says that the Tribunal
constructively failed to exercise its jurisdiction.
He says:
- “The
applicant provided documents to the Tribunal to corroborate his claims. In
particular, the applicant provided a copy
of the membership card of the Congress
Party and a letter from SB, a Congress Party MLA. The Tribunal failed to engage
in an active
intellectual process in respect of those documents. The Tribunal
member ultimately gave the documents no weight on the basis of
credit findings.
It was an error for the Tribunal to place no weight on the documents without
engaging in an active intellectual
process as to the contents of the documents.
It was an error for the Tribunal to assess the applicant credit without first
assessing
whether the substances of the documents corroborated his
claims.”
The statement contained in these
particulars is not entirely accurate. Firstly, the Tribunal accepted that the
applicant was a member
of a Congress Party and noted the existence of the
Congress Party membership card, so the applicant was not in any way prejudiced
in that regard. Secondly, the Tribunal noted that the MLA had given a letter
[70] [CB 101] and again at [74] [CB 101] where it said:
“SB had provided him with a reference. I am satisfied that the
applicant has contact with an MLA and I do not accept that
he is unable to
express his view to those in positions of power.”
- The
letter from the MLA states that the applicant is from his parliamentary
constituency and goes on to say:
- “Mr
[Applicant’s] form No. is 809 and his father wants his visa to be extended
further for one year as he feels his son’s
life could be in danger due to
threats he has received from some people. I shall be very grateful if Mr
[Applicant’s] visa
is extended for another year.” [CB
86]
This statement is clearly hearsay. The MLA has no
knowledge whatsoever of any danger to the applicant and it would appear that not
even the applicant’s father is prepared to say who is threatening his
life. There is no evidence in that document of a Convention
related claim. It
follows that to the extent that the Tribunal may be said not to have dealt with
the representations made by the
applicant’s father through the MLA they
were not relevant and no jurisdictional error could be shown because one
particular
part of a piece of evidence was not referred to. In WAEE v
Minister for Immigration (2003) 75 ALD 630 at [47] the Full Bench,
French, Sackville and Healy JJ said:
“The inference that the Tribunal has failed to consider an issue may be
drawn from its failure to expressly deal with that
issue in its reasons. But
that is an inference not too readily to be drawn where the reasons are otherwise
comprehensive and the
issue has at least been identified at some
point.”
The issue in this case was certainly identified by
the applicant and it was dealt with by the Tribunal, which questioned the
applicant
and then concluded that he was not telling it the truth.
- Insofar
as the applicant maintains that the alleged corroborative document should have
been considered before the Tribunal concluded
its views about the
applicant’s credit, this has not found favour with the Full Bench of the
Federal Court that in Minister for Immigration v SZNSP [2010] FCAFC 50
said at [37]:
- “Several
further observations should be made concerning the type of situation addressed
in Applicant S20/2002 [2003] HCA 30; 198 ALR 59. The case does not
relieve the RRT from giving consideration to corroborative evidence. It
concerns only the timing of that consideration.
The case establishes that the
RRT does not act irrationally and thereby fall into jurisdictional error by
first making an assessment
of the applicant’s credit and then giving
attention to the corroborative evidence.”
- The
second ground of application put forward is:
- “The
Tribunal exceeds [its] jurisdictional or constructively failed to exercise its
jurisdiction or denied my procedural fairness
in that the Tribunal failed to
investigate my genuine claims with the requirement of Migration Act
1958.”
This claim is not particularised in any way.
Ms Whittemore, in her helpful oral submissions, suggests that it is a reference
to the
Tribunal’s obligation (or non-obligation) to inquire. It may well
be but I do not think that it is for a Court to try and
guess what an applicant
meant when his grounds of application are not expressed clearly and he does not
provide any further elucidation
in his oral submissions to the Court.
- In
all the circumstances, I cannot be satisfied that the application had any
reasonable prospects of success and certainly none that
would outweigh the
extensive delay in bringing the application before the Court. The application
for an extension of time is dismissed.
The applicants should pay the first
respondent’s costs assessed at a sum of $2,935.00.
I
certify that the preceding twenty (20) paragraphs are a true copy of the reasons
for judgment of Raphael FM
Date: 17 February 2011
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