FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYPF v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 985 |
| MIGRATION – Offshore processing – application for judicial review of Independent Merits Review Assessment – extension of time – whether necessary in the interests of the administration of justice – extension refused – application dismissed. |
| Federal Magistrates Act 1999 (Cth), s.45 Federal Magistrates Court Rules 2001, r.14.02 Migration Act 1958 (Cth), s.477 |
| Applicant: | MZYPF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | SUE ZELINKA IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1108 of 2011 |
| Judgment of: | F. Turner FM |
| Hearing date: | 16 November 2011 |
| Date of Last Submission: | 16 November 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 15 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Burchill |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Horan |
| Solicitors for the First… |
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- Case
- [2011] FMCA 985
- Decision Date
CaseChat Overview and Summary
The court's task was to determine if the extension of time was warranted under section 477(2)(a) and (b) of the Act. The court referred to previous cases such as Abrahams v Qantas Airways Ltd (No.2) and Genovese v BGC Construction Pty Ltd to understand the phrase "interests of the administration of justice." It concluded that the interests of the administration of justice pertain to the management of justice by the Court in the proceedings before it. The court applied this understanding to assess whether the discovery of additional documents would contribute to the fair and expeditious conduct of the proceedings and be beneficial to the applicant. Following the reasoning in SZBHT v Minister for Immigration, the court decided that the proposed discovery would not assist the applicant in establishing his claim and thus was not in the interests of the administration of justice.
Ultimately, the court dismissed the application for an extension of time and the subsequent application for judicial review. The court's decision was grounded in the statutory requirement for a written specification of the necessity for an extension and the assessment of whether such an extension would serve the interests of the administration of justice.
Orders
Orders of the court
1.
The application for an extension of time is dismissed.
2.
The application for judicial review filed on 28 July 2011 is dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Section 477 of the Act provides as follows:(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.(3)In this section:date of the migration decision means:(a)in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975—the date of the written decision under that subsection; or(b)in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); or(c)in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the oral decision; or(d)in any other case—the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.(4)For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).(5)To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision. The applicant has not specified in writing why he considers that it is “necessary in the interests of the administration of justice” to make the order extending time [s.477(2)(a)], but the affidavit of Mr Stuart Webb affirmed on 14 November 2011 is accepted by Mr Horan as setting out those reasons. Lucev FM referred to authorities on the meaning of the phrase “interests of the administration of justice” in the Act and Rules of the Court in Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639 at [7 – 11] as follows:LegislationSection 45 of the Federal Magistrates Act 1999 (Cth) (“FM Act”) provides as follows:(1)Interrogatories and discovery are not allowed in relation to proceedings in the Federal Magistrates Court unless the Federal Magistrates Court or a Federal Magistrate declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.(2)In deciding whether to make a declaration under subsection (1), the Federal Magistrates Court or a Federal Magistrate must have regard to:(a) whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and(b) such other matters (if any) as the Federal Magistrates Court or the Federal Magistrate considers relevant,Rule 14.02 of the Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”) provide (sic “provides”) as follows:(1)A declaration may be made under subsection 45 (1) of the Act to allow discovery on the application of a party or on the Court’s own motion.Note Discovery is not allowed in relation to a proceeding unless the Court or a Federal Magistrate declares that it is appropriate in the interests of the administration of justice: see section 45 of the Act.(2)If a declaration is made, the Court or a Registrar may make an order for disclosure:(a) generally; or(b) in relation to particular classes of documents; or(c) in relation to particular issues; or(d) by a specified date.”Interests of the administration of justiceThe Court dealt with the phrase “interests of the administration of justice” in Genovese v BGC Construction Pty Ltd[1]. In Genovese the Court said:“In BHP Billiton Ltd v Schultz (2004) 221 CLR 400, [2004] HCA 61, (“Schultz”) the High Court considered the nature of the “interests of justice”: Gleeson CJ, McHugh and Heydon JJ CLR at p.421, HCA at par [15] said:The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s.5 is not disembodied, or divorced from practical reality.[1] Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 (“Genovese”)Gummow J observed that the interests of justice “are even-handed”; CLR at p.445, HCA at par [100] while Callinan J referred to the requirement to “do equal justice”: CLR at p.492, HCA at par [258]”. [2][2] Genovese at paras 24-25 per Lucev FMand further said:“In assessing the “interests of the administration of justice” similar considerations to those in Schultz apply, with the qualification related to “administration of justice”. Administration means “management”: Concise Oxford Dictionary, 7th Edition (Oxford: Oxford University Press, 1984) at p.13. Thus, s.39(3)(d) of the [FM] Act is directed to a consideration of the interests of the management of justice, which must mean management by the Court of the proceedings pending before the Court.”.[3][3] Genovese at para 28 per Lucev FMAlthough Genovese was a case concerning transfer of proceedings to the Federal Court under s.39(3)(d) of the FM Act, the consideration of the phrase “interests of the administration of justice” there is apposite in this case.The Court must therefore in considering an application for a discovery declaration determine whether the interests of the administration of justice, that is the interests of the management of justice, being the management by the Court of the proceedings pending before the Court, require such a declaration.And further in Abrahams at [17 – 19]:In SZBHT v Minister for Immigration[4], the Court was dealing with an application for discovery of all documents, electronic or otherwise in the possession of Minister for Immigration and the Refugee Review Tribunal (“RRT”) containing or relating to country information in respect of Bangladesh”[5]. The purpose of the application was to find information supporting the applicant’s claim that homosexuals faced persecution in Bangladesh, the RRT having found that there was no country information supporting a claim that homosexual people are persecuted in Bangladesh.[6] The RRT was not satisfied that the applicant was in fact homosexual, but that finding was challenged.[7] It was clear that contrary to the RRT’s finding that there was independent country information in a data base maintained by the Immigration Department which showed that homosexuality was not accepted or condoned by society in Bangladesh.[8]The Court in SZBHT determined to follow the approach adopted by the Court in NAQR & Ors v Minister for Immigration (2002) FMCA 271. The Court in SZBHT went on to consider the discretionary nature of the declaration to be made as to the interests of the administration of justice under s.45(1) of the FM Act, and the matters referred to in s.45(2) of the FM Act to be mandatorily considered when deciding whether to make a declaration.[9]The Court determined that an examination of the relevant departmental data base would not produce evidence to support the applicant’s claim that he was in fact homosexual, and would therefore be of “no benefit” in establishing that he might be persecuted in Bangladesh on the basis of his alleged homosexuality. The Court concluded that:“It will not contribute to the fair and expeditious conduct of the proceedings, and it will not assist the applicant in the long run. If it will not assist, then it is not in the interests of the administration of justice for me to make such a declaration”.[4] [2005] FMCA 622 (“SZBHT” )[5] SZBHT at para 3 per Scarlett FM[6] SZBHT at paras 13 and 19 per Scarlett FM[7] SZBHT at paras 12 and 49 per Scarlett FM[8]SZBHT at paras 14 and 17-21 per Scarlett FM[9] SZBHT at paras 39-42 per Scarlett FM