CZAW v Minister for Immigration and Citizenship [2010] FCA 879 (17 August 2010)

Last Updated: 26 August 2010

FEDERAL COURT OF AUSTRALIA

CZAW v Minister for Immigration and Citizenship [2010] FCA 879

Citation:		CZAW v Minister for Immigration and Citizenship [2010] FCA 879
Appeal from:		Federal Magistrates Court of Australia (orders dated 11 May 2010)
Parties:		CZAW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		ACD 21 of 2010
Judge:		BUCHANAN J
Date of judgment:		17 August 2010
Legislation:		Migration Act 1958 (Cth) ss 476, 476A, 477
Cases cited:		Fisher v Minister for Immigration and Citizenship [2007] FCA 591; (2007) 162 FCR 299 Keo v Minister for Immigration and Citizenship [2009] FCA 676; (2009) 177 FCR 479 SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75; (2008) 168 FCR 410 SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39; (2007) 158 FCR 260
Date of hearing:	16 August 2010
Place:	Canberra
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	17
Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the First Respondent:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 21 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	CZAW Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	17 AUGUST 2010
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. The appeal be dismissed.
   

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IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 21 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	CZAW Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BUCHANAN J
DATE:	17 AUGUST 2010
PLACE:	CANBERRA

REASONS FOR JUDGMENT

BUCHANAN J:

1. The appellant, a citizen of Sri Lanka, arrived in Australia on 4 May 2005. He appears to have worked for some time at the Sri Lankan embassy in Canberra but then applied for a protection visa on 21 May 2008. A delegate of the first respondent (“the Minister”) refused to grant a protection visa on 28 July 2008. The appellant then applied to the Refugee Review Tribunal (“the RRT”) established under the Migration Act 1958 (Cth) (“the Act”) for review of the delegate’s decision. In a decision handed down on 11 November 2008 the RRT affirmed the decision of the delegate not to grant a protection visa.
2. On 8 December 2008 the appellant applied to the Federal Magistrates Court of Australia (“the FMCA”) for judicial review of the decision of the RRT. The appellant engaged solicitors to represent him. On 10 June 2009 those solicitors advised the FMCA of their instructions from the appellant to withdraw his application to the FMCA. The solicitors, at the same time, provided a written “direction” intended to be communicated to the FMCA that the proceedings be withdrawn and a formal notice of discontinuance. In response, on 11 June 2009 the FMCA ordered: “The application filed on 8 December 2008 be withdrawn and dismissed.”
3. It appears that, at the time his application for judicial review was withdrawn, the appellant had plans to marry in Australia. The marriage took place on 31 August 2009. It does not appear that the appellant’s new wife is an Australian citizen or permanent resident. She appears to be in Australia as an overseas student. Whether or not that is so is of no immediate relevance. The circumstances I have mentioned are simply background to the matters which require attention. Apparently (and presumably relying upon his change of circumstances) the appellant then made representations to the Minister under s 417 of the Act. The nature of the representations made was not before me on the appeal but the representations were unsuccessful.
4. His representations to the Minister having been unsuccessful, on 9 April 2010 the appellant purported to file a further application in the FMCA for review of the decision of the RRT. On 11 May 2010 the application filed on 9 April 2010 by the appellant was dismissed by the FMCA. For reasons which will become apparent, there is some doubt in my mind as to what was the reason for this decision. Before I discuss that issue (and its potential consequences) the relevant legislative provisions applying to the further application should be identified.
5. Before 15 March 2009, s 477 of the Act imposed strict time limits on applications to the FMCA for judicial review of decisions of the RRT. Such an application was required to be made within 28 days of the actual notification of a decision of the RRT or (if an extension to this effect was granted) within a further 56 days. If a relevant application had not been made within the 84 days allowed by s 477 in total, relief against a decision such as that made by the RRT on 11 November 2008 was statute barred (SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39; (2007) 158 FCR 260; Fisher v Minister for Immigration and Citizenship [2007] FCA 591; (2007) 162 FCR 299; SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75; (2008) 168 FCR 410; Keo v Minister for Immigration and Citizenship [2009] FCA 676; (2009) 177 FCR 479).
6. Effective on 15 March 2009, the time limit stated by s 477 was changed to 35 days and the FMCA was given a discretion to grant a further extension of time if satisfied that it was in the interests of the administration of justice to do so. The application made by the appellant on 9 April 2010 was required to be dealt with under the amended terms of s 477. The appellant however used a pro forma application form which referred to the previous version of s 477 and the time limits it then contained. As I earlier indicated those time limits were strict and no dispensation or extension was available after 84 days. The use by the appellant of an incorrect form did not invalidate his application but it might have contributed to some confusion about the true position.
7. On 3 May 2010 the Minister’s legal representatives filed a formal response to the appellant’s application of 9 April 2010 opposing any extension of time being granted. At the hearing before the FMCA on 11 May 2010 opposition to any extension of time was repeated. The application filed on 9 April 2010 was dismissed after a short hearing. No reasons for judgment were delivered but the following passages from the transcript of the hearing before the FMCA appear to reveal a misunderstanding about the then current terms of s 477:

... the time limits are long [passed] and even the discretion that is given to me under that section – that even the discretionary time has also long [passed] ...

... the current application before the court is completely out of time. There is no basis upon which I can entertain it, and the only order the court can make today is that application filed on 9 April be dismissed ...

8. It seems to me to be likely that the Federal Magistrate did not appreciate that s 477 had been amended and therefore dealt with the appellant’s application on the basis that it was statute barred. I intend no criticism of that oversight, if it occurred. I laboured under the same misapprehension as I prepared for the present appeal until the true position became apparent at the hearing of the appeal.
9. Section 476A(3) of the Act (introduced at the same time as the amendments to s 477) prohibits an appeal to this Court from a judgment of the FMCA refusing to extend time under s 477 of the Act. I do not think that the order made by the FMCA dismissing the application filed on 9 April 2010 was an order of that kind. I think it likely that the order was made without the current requirements of s 477 having been addressed. I see no reason to doubt, therefore, that this Court would have power to uphold the appeal and remit the matter to the FMCA so that a decision might be made which applied the amended terms of s 477. However, I would not make such an order if it would be futile to do so.
10. If an extension of time was granted it would become necessary for the appellant to identify a jurisdictional error in the decision of the RRT, or the processes followed by it, in order to secure an order remitting the matter to the RRT for further attention. I have examined that question for myself to see if any jurisdictional error has been alleged and/or is apparent.
11. The grounds of the application filed on 9 April 2010 are (after correcting the appellant’s English):

1. The Tribunal’s process of reasoning was irrational, illogical and flawed.

2. The Tribunal did not seek to make an assessment of the credibility [of the appellant] having regard to all of the evidence or other material.

3. The decision maker did not have jurisdiction to make a decision.

4. Fair decision needed.

5. I do not agree with the decision made by the Tribunal. Fair decision needed.

12. No clearly expressed identification of jurisdictional error is apparent from these grounds. They appear to have been borrowed from somewhere else. Does any jurisdictional error appear from the way the matter was dealt with by the RRT?
13. The critical passages in the decision of the RRT appear to me to be:

40. The applicant claims that in 2007 members of his family in Sri Lanka began to receive anonymous telephone calls from persons seeking to kill him if he returns to Sri Lanka. The applicant claims that in July 2008 the same persons went to his parent’s home and harassed his family. The applicant claims that he does not know the identity or motivation of the persons making the threats. He claims that it may be the LTTE [Liberation Tigers of Tamil Eelam], because he worked for the government, or persons who will kidnap and extort money from him, because he has worked overseas, or persons in his village who envy his elite status. The applicant claims that the authorities in Sri Lanka have not been able to assist. The applicant further claims that his former employer will seek to punish him for staying in Australia after his employment with the Sri Lankan embassy expired. He claims that the civil war and violent crime continue in Sri Lanka. He claims he will be at risk of harm because of the poor security conditions. The applicant claims that if he is unable to earn an income, and he cannot support his family in Sri Lanka, they will not be able to survive.

...

42. The Tribunal has considered the applicant’s core claim relating to threats against him in Sri Lanka by unknown persons for unknown reasons. It finds that this claim lacks credibility. The applicant has only provided vague and broad information in support of the claim. He speculates that it may be the LTTE, or the persons seeking money from him, or persons who envy him. However, he has not been able to provide compelling evidence that any of these individuals or groups have a genuine interest in him. He claims that the persons seeking to kill him in Sri Lanka are awaiting his return and yet, for no apparent or logical reason, the same persons have instigated a long campaign of warning him to keep out of the country. The vagueness in the applicant’s evidence, and the implausible nature of the claim, has led the Tribunal to the finding that the claim has been fabricated. The Tribunal cannot be satisfied on the available information that the applicant has been threatened by unknown persons in Sri Lanka, for unknown reasons, or that he is at risk of being harmed or killed by unknown persons in Sri Lanka. The Tribunal finds that this claim was contrived by the applicant to enhance his protection visa application.

14. Findings of this kind fall squarely within the statutory mandate of the RRT. They are findings about the merits of the appellant’s claims to be a refugee to whom Australia has protection obligations. In the absence of jurisdictional error, findings of this kind are not reviewable in the FMCA or in this Court. In my view, no jurisdictional error is apparent in the approach taken by the RRT or from the terms of its decision. Even if an extension of time was granted the application for judicial review filed on 9 April 2010 would enjoy no prospects of success. As a result it would be futile to require the FMCA to give further attention to the question of whether an extension of time should be granted under s 477 of the Act.
15. Relying on the prohibition in s 476A of the Act preventing an appeal to this Court from a judgment of the FMCA refusing to grant an extension of time under s 477, the Minister submitted the present appeal was incompetent. I do not agree, in the circumstances, that the appeal is incompetent but I accept the Minister’s alternative submission that the appeal should be dismissed because it would be futile to uphold it.
16. To date no application has been made for costs. I doubt whether costs should be awarded against the appellant in the circumstances I have discussed but that is a matter I need not decide unless an application for costs is made.
17. The appeal will be dismissed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated: 17 August 2010