MZYNW v Minister for Immigration and Citizenship

[2012] FCA 150

FEDERAL COURT OF AUSTRALIA

MZYNW v Minister for Immigration and Citizenship [2012] FCA 150

Citation:		MZYNW v Minister for Immigration and Citizenship [2012] FCA 150
Appeal from:		MZYNW v Minister for Immigration and Citizenship & Anor [2011] FMCA 1035
Parties:		MZYNW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		VID 1481 of 2011
Judge:		KENNY J
Date of judgment:		28 February 2012
Catchwords:		JUDICIAL REVIEW - Appeal out of time - Federal Magistrate refused to extend time - Appeal to Federal Court incompetent
Legislation:		Migration Act 1958 (Cth)
Cases cited:		MZYNW v Minister for Immigration & Anor [2011] FMCA 1035 SZQLD v Minister for Immigration and Citizenship [2011] FCA 1339
Date of hearing:	28 February 2012
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	10
Counsel for the Appellant:	There was no appearance by the appellant
Solicitor for the Respondents:	Mr B Petrie of Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1481 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZYNW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	KENNY J
DATE OF ORDER:	28 FEBRUARY 2012
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed as incompetent.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1481 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZYNW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	KENNY J
DATE:	28 FEBRUARY 2012
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. The appellant filed a Notice of Appeal on 22 December 2011, in respect of a judgment of the Federal Magistrates Court delivered on 16 December 2011, refusing him an extension of time under s 477(2) of the Migration Act 1958 (Cth) (“the Act”) to apply to set aside a decision of the Refugee Review Tribunal (“RRT”) made on 13 November 2009: see MZYNW v Minister for Immigration & Anor [2011] FMCA 1035. The first respondent has filed a notice of objection to the competency of the appeal.

   THE PROCEEDINGS BELOW

2. A delegate of the Minister of the Department of Immigration and Citizenship refused the appellant’s application for a protection visa on 21 July 2009. The RRT affirmed this decision on 13 November 2009. Pursuant to s 476 of the Act, a decision of the RRT refusing a protection visa is reviewable by the Federal Magistrates Court for jurisdictional error, but the Act limits the time within which judicial review can be sought.

3. In particular, s 477 of the Act provides that:

   (1)An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2)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.

4. The appellant in this case filed his judicial review application in the Federal Magistrates Court, challenging the RRT’s decision for jurisdiction error, on 12 July 2011, approximately 20 months after the RRT made its decision. By virtue of s 477(1) of the Act, the application was therefore out of time.

5. As the terms of s 477(2) of the Act make clear, however, the Federal Magistrates Court may order an extension of time if: (1) written application is made “specifying why the applicant considers it necessary in the interests of the administration of justice for that order to be made”; and (2) the Court is satisfied that “it is necessary, in the interests of the administration of justice, to make such an order”.

6. In this case, for the reasons he stated, the learned Federal Magistrate refused the appellant’s application for an extension of time: see MZYNW v Minister for Immigration & Anor [2011] FMCA 1035 at [23]-[28]. The appellant seeks to appeal against this judgment upon the ground that the decision of the RRT should be set aside for jurisdictional error and, implicitly, that the Federal Magistrate was in error in not so doing.

   THE NOTICE OF OBJECTION TO COMPETENCY

7. The first respondent contended that this appeal is incompetent because s 476A(3)(a) of the Act provides:

   (3)Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:

   (a)a judgment of the Federal Magistrates Court that makes an order or refuses to make an order under subsection 477(2) … .

8. The purpose of s 476A(3)(a) of the Act is to preclude any appeal against a Federal Magistrate’s judgment refusing to extend the time in which to file a judicial review application in the exercise of the discretion conferred by s 477(2). See also SZQLD v Minister for Immigration and Citizenship [2011] FCA 1339 at [5] per Rares J. By virtue of s 476A(3)(a) of the Act, this Court does not have jurisdiction to entertain an appeal from a judgment of the Federal Magistrates Court refusing to grant an extension of time under s 477(2).

   THE APPEAL

9. The appellant has brought this appeal without regard to the jurisdictional bar created by s 476A(3)(a) of the Act. Because of the statutory bar, it is not open to this Court to consider any jurisdictional error that the appellant would impute to the RRT.

10. For the reasons stated, the notice of objection to the competency of the appeal filed by the first respondent is sustained.  I would therefore order that the appeal be dismissed as incompetent.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate:

Dated:        28 February 2012