McGlade v Lightfoot

[2007] FCA 1457

FEDERAL COURT OF AUSTRALIA

SZEWV v Minister for Immigration and Citizenship
[2007] FCA 1457

SZEWV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1127 OF 2007

RARES J
30 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1127 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEWV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	30 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first respondent’s costs fixed in the sum of $2,500.

3.The appellant not file any further proceedings in this Court or in the Federal Magistrates Court seeking to challenge the decision of the delegate of the first respondent notified to him by letter of 6 February 2004 to refuse him a protection visa or the decisions of the Refugee Review Tribunal and this Court that he has no right to apply to the tribunal for a review of that decision.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1127 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEWV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	30 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from a decision of the Federal Magistrates Court:  SZEWV v Minister for Immigration [2007] FMCA 922, in which Scarlett FM found that there was no error in the decision of the Refugee Review Tribunal made on 30 January 2007, in that it did not have jurisdiction in the matter. The appellant had applied for a protection visa after arriving in Australia in late 2003. In early 2004, a delegate of the Minister refused to grant the visa. Both the appellant and his migration agent were advised in writing by letter dated 6 February 2004 of that decision.

2. No application for review was filed by the appellant or anyone on his behalf until 15 April 2004, which was outside the 28 day period following notification of the delegate’s decision to the appellant.  In earlier proceedings, Lloyd-Jones FM found that the last day on which the tribunal could accept a valid application for review was 16 March 2004:  SZEWV v Minister for Immigration [2005] FMCA 1525 at [4]. Before Lloyd-Jones FM the appellant was seeking constitutional writ relief against the tribunal’s refusal to consider his application because it had been filed too late. There he made a claim that he had, in fact, lodged two applications for review with the tribunal.

3. His Honour noted that after the tribunal had formed the preliminary view in 2004 that it had no jurisdiction because the application it received on 15 April 2004 had been filed too late, the appellant…