SZVIX v Minister for Immigration

[2015] FCCA 268

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVIX v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 268

Catchwords:
PRACTICE AND PROCEDURE – Application for an adjournment – whether the applicant will suffer any prejudice if the adjournment is not granted – whether there is any utility in the Court granting the applicant an adjournment – application for an adjournment dismissed.

MIGRATION – Application for an extension of time under s.477 of the Migration Act 1958 (Cth) – whether the Court should grant an extension of time in circumstances where the applicant has previously filed an application for judicial review that has been determined by a Judge of this Court – no grounds raised in support of the application for an extension of time – no arguable case for relief in the substantive application – application dismissed.

Legislation:  

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)
Migration Act 1958 (Cth), ss.477(1), 477(2)

SZTRV v Minister for Immigration & Anor (No.2) [2014] FCCA 2807

Applicant: SZVIX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2959 of 2014

Judgment of: Judge Manousaridis

Hearing date: 3 February 2015

Delivered at: Sydney

Delivered on: 3 February 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents: Ms Z Taylor of Clayton Utz

ORDERS

1. The application for an adjournment is dismissed.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs. 

4. The amount of the first respondent’s costs is set in the sum of $1,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2959 of 2014

SZVIX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. Before the Court is an application by the First Respondent (Minister) for an order under rule 44.12(1)(a) of the Federal Circuit Court Rules2001 (Cth) that the application for judicial review filed in these proceedings be dismissed.

2. In his application for judicial review, the applicant seeks to set aside the decision of the Second Respondent (Tribunal) made on 25 September 2013. The application for judicial review, however, was filed on 24 October 2014, more than the 35 days allowed under s.477(1) of the Migration Act 1958 (Cth) (Act).

3. After I identified the evidence that was before the Court, the applicant, who was not legally represented, applied for an adjournment.  The ground of the adjournment was that he did not receive a letter dated 19 December 2014 from the Minister’s solicitors with which there was enclosed, among other things, a copy of the reasons for judgment of his Honour Judge Nicholls in SZTRV v Minister for Immigration & Anor (No 2) [2014] FCCA 2807. Those reasons for judgment relate to an order his Honour made on 16 July 2014 dismissing an application made by the applicant for an extension of time to apply for judicial review of the Tribunal’s decision of 25 September 2013. The reasons for judgment were delivered ex tempore by his Honour on 16 July 2014 in the presence of the applicant, who, at the time, had the assistance of an interpreter.

4. On 20 November 2014, when the matter was before me on a first court date, it became apparent that one ground on which the Minister proposed to rely for the dismissal of the application was that an identical application had been previously dismissed by a Judge of this Court, namely, Judge Nicholls, on 16 July 2014.  Because as at 20 November 2014 there was no written record of the ex tempore reasons Judge Nicholls delivered on 16 July 2014, I directed that, by 19 December 2014, the Minister file and serve the written reasons for judgment of Judge Nicholls. 

5. On 25 November 2014 the Minister’s solicitor sent an email to the Associate for Judge Nicholls  requesting his Honour’s written reasons.  A copy of that email was sent by post to the applicant at his address for service.  The applicant accepts that he did receive that letter.  On 19 December 2014 I find that the solicitor for the Minister sent by post to the applicant’s address for service an affidavit annexing, among other things, the written record of the reasons for judgment of Judge Nicholls delivered on 16 July 2014.

6. The applicant gave evidence that he did not receive the letter.  Although I find that the letter of 19 December 2014 was sent by post to the applicant’s address for service, I am not prepared not to accept the applicant’s evidence that he did not receive it.  The question, therefore, is whether, notwithstanding the applicant’s not having received the letter and, as he says, his having only seen the letter at the hearing today, including Judge Nicholls’ written reasons for judgment, I should grant the adjournment the applicant seeks.

7. There are at least three matters I must consider.  The first is whether the applicant is in any way responsible for his not having received his Honour’s written reasons.  The second is whether the applicant will suffer any prejudice if an adjournment is not granted.  And the third, and related question, is whether there would be utility in my granting the adjournment.  I first turn to the Applicant’s conduct.

8. The applicant was aware, because he was in Court, that I made directions on 20 November 2014 for the serving on him of the written reasons for judgment of Judge Nicholls. The applicant also was aware on or shortly after 25 November 2014 that the Minister’s solicitor had approached the Associate for Judge Nicholls for his Honour’s written reasons. It was, therefore, open to the applicant when he did not receive the written reasons for judgment by 19 December 2014, to make inquiries either of the Minister’s solicitor or of the Court itself. Further, he could have made enquiry of to determine whether the reasons for judgment of Judge Nicholls had, in fact, been posted on that website.

9. As to prejudice, I am not satisfied the applicant would suffer any prejudice if an adjournment is not granted.  He was present at the time Judge Nicholls delivered his reasons for judgment and must be taken to know, and I find that the applicant, at least in a general sense, knew the reasons why his application for an extension of time was rejected by Judge Nicholls.  Further, as I will note later in these reasons, on 20 January 2015 the applicant swore an affidavit in which he made various submissions that the decision of Judge Nicholls was unfair and wrong. This, I infer, the applicant did in response to the Minister’s grounds of opposition in which the Minister, in terms, relied on the orders of Judge Nicholls given on 16 July 2014 dismissing the applicant’s application for an extension of time.  If, as the applicant claims, the applicant did not have the written reasons for judgment at that time he swore his affidavit of 20 January 2015, he obviously did not need those reasons to make the submissions he intends to make about the judgment of Judge Nicholls.

10. This then leads me to the question of futility which requires me to consider whether the applicant does, indeed, have any arguable case for the relief he seeks. The Minister submits the application discloses no arguable case for the relief it seeks because the applicant had previously applied under s.477(2) of the Act for the extension of time within which to apply for relief in relation to the decision of the Tribunal made on 25 September 2013. And that application was dismissed by Judge Nicholls on 16 July 2014 in SZTRV v Minister for Immigration & Anor (No.2) (2014) FCCA 2807.

11. The applicant relies on an affidavit made on 20 January 2015.  To that affidavit the applicant attached an application in a case filed in the proceedings that were dismissed by Judge Nicholls together with an affidavit the applicant filed in support of that application in a case.  The applicant asserts in his affidavit of 20 January 2015 that the decision of Judge Nicholls is unfair and wrong because his Honour failed to understand the harm the applicant will face if he were to return to Fiji.  The applicant further asserts in his affidavit that he was denied natural justice. Finally, again in that affidavit, the applicant asks the Court to take into account the decision of the Tribunal and the transcript that was before Judge Nicholls on the hearing for an extension of time that took place on 16 July 2014. 

12. It is apparent that the applicant in that affidavit is requesting me to review the decision of Judge Nicholls. That, however, is not a task I have jurisdiction to undertake. Such review would either purportedly invoke appellate power or power to judicially review a decision of a Judge of this Court. Such power, if it is available at all, is not available to this Court.

13. This brings me to the application for judicial review itself. It has been brought out of time, yet there is no application in writing for an extension of time as required by s.477(2) of the Act. For that reason alone, the application must be dismissed. If, however, an application for an extension of time were made, it would constitute an abuse of process of the Court. The applicant has already made an application for an extension of time to apply for relief in relation to the decision of the Tribunal. And that application has been heard and determined by this Court adversely to the applicant. The applicant has not produced any evidence that could conceivably give grounds for permitting the applicant to apply again for an extension of time.

14. Finally, even if I were to ignore the fact that the applicant had already applied for an extension of time, the grounds on which he proposes to rely for the relief he would seek against the Tribunal if the Court granted an extension of time lack merit. To see why it will be necessary to set out the claims the applicant made before the Tribunal and the Tribunal’s reasons for dismissing the applicant’s claims. 

15. The applicant is a national of Fiji.  He claimed he was seeking protection in Australia because there was a clash between him, his wife, and his wife’s manager, and he fears that if he were to return to Fiji, his wife’s manager will harm him and kill him.  The clash arose out of the applicant’s wife’s manager having abused and raped the applicant’s wife.  After finding out about the abuse and rape from a friend of the applicant, the applicant had a physical exchange with his wife and then had a fight with the manager.  That fight was followed by fights on two or more occasions.  During the hearing before the Tribunal, the applicant also claimed that the applicant’s wife’s manager was involved with a gang, such involvement including drinking with that gang.  The applicant did not claim he suffered any harm in Fiji. 

16. The Tribunal found the applicant not to be a credible witness overall.  In particular, it did not accept the applicant’s claim that he will be harmed or killed by the applicant’s manager or persons associated with that manager if the applicant returns to Fiji. It did not accept that claim for a number of reasons.  First, the applicant in his application for a tourist visa stated that his and his wife’s intention in coming to Australia were to be with the applicant’s sick brother.  The Tribunal found that the applicant’s primary motivation for coming to Australia was to be with his sick brother.  Second, the Tribunal did not accept the applicant’s evidence that his wife’s manager had been involved in a gang because that was a new claim that was raised towards the end of the hearing, and not in his initial claims for protection. Third, the Tribunal did not accept the applicant’s claim that his wife was assaulted by her manager.  That was so because that claim was inconsistent with evidence the applicant gave at the departmental interview, and the Tribunal found the applicant gave inconsistent evidence about the claimed sexual assaults of his wife.  The Tribunal found that the applicant’s wife entered into a relationship with her manager and that made the applicant angry with his wife in the past.   

17. I now turn to the grounds for judicial review on which the applicant proposes to rely if an extension for time were granted. The first is that the Tribunal “[f]ailed to understand my fear of prosecution” [sic]. The applicant does not particularise the respects in which he claims the Tribunal failed to understand his claim. He does not identify the claim he says he made to the Tribunal, nor that part of the Tribunal’s reasons which he claims manifests a lack of understanding by the Tribunal of the applicant’s claimed fear of persecution. I am satisfied on the material that is before me that the Tribunal did understand the applicant’s claim for fear of persecution. The Tribunal rejected that claim because it did not accept the applicant to be a witness worthy of credit. That finding was reasonably open to the Tribunal for the reasons the Tribunal gave.

18. The second ground on which the applicant proposes to rely, if an extension of time were granted, is that the Tribunal overlooked the applicant’s fear which is genuine. This appears to be a variation on the first ground. Again, the applicant does not identify the information that the applicant says manifested his fear that the Tribunal overlooked. In my opinion, the Tribunal clearly understood the fear the applicant claimed he had if he returned to Fiji. Unfortunately for the applicant, the Tribunal did not accept the applicant’s claim that he did, in fact, hold those fears.

19. At the hearing before me today, the applicant made a number of submissions.  It was plain, however, that the submissions were directed to expressing disagreement with the decision the Tribunal made on the merits of his claim and those submissions raised no arguable case that the Tribunal made any jurisdictional error. 

20. For these reasons, I can see no arguable case for the relief the applicant proposes to seek if an extension for time were granted.  That, together with the other reasons I have given in relation to the difficulties that fall in the way of the applicant’s intending to seek an extension of time because of the judgment of Judge Nicholls, leave me to conclude that it would be futile to grant the applicant an adjournment of today’s application for an extension of time.

21. For those reasons, I propose to dismiss the application for the adjournment, dismiss the application, and order that the applicant pay the first respondent’s costs.

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

Associate: 

Date:  10 February 2015