MZZWQ v Minister for Immigration

[2014] FCCA 1669

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZWQ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1669

Catchwords:
MIGRATION – Application to file out of time – application dismissed – costs application granted.

Legislation:

Migration Act 1958 (Cth)

Applicant: MZZWQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 2080 of 2013

Judgment of: Judge McGuire

Hearing date: 29 July 2014

Date of Last Submission: 29 July 2014

Delivered at: Melbourne

Delivered on: 29 July 2014

REPRESENTATION

Solicitors for the Applicant: In person

Counsel for the First Respondent: Ms Ngo

Solicitors for the First Respondent: Australian Government Solicitors

ORDERS

1. Leave to file the application for judicial review out of time is refused.

2. The Applicant is to pay the Respondent’s costs and disbursements of an incidental to the application fixed in the sum $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2080 of 2013

MZZWQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. This matter comes before me on an application to show cause why a remedy should not be granted the applicant in respect of a decision of the Refugee Review Tribunal made 22 October 2013.  The applicant has filed no written submissions in support of his application as required by the orders and directions of the registrar on 19 February 2014.  The decision of the tribunal affirmed a determination of the delegate of the Minister made 6 December 2012 rejecting the applicant’s application for a Protection (Class XA) visa (“the visa”).

2. When the matter came before me today the applicant was unrepresented but appears with the benefit of an interpreter.  I made enquiries of the applicant and the interpreter to ensure that they speak a common language in the sense that they fully understand each other.  I was informed in the affirmative by each.  The Minister is represented by Ms Ngo, a solicitor.  When the formalities had been completed, I enquired of the applicant on three separate occasions as to what, if any submissions he has for me to consider.  On each occasion he has replied that he has no submissions.

3. The application filed by the applicant on 29 November 2013 is on the face of it out of time.  No material has been filed in support of an application for leave other than his application filed 29 November 2013 which does seek an extension of time and offers the following grounds:

   
   
   (1) My family back in Sri Lanka had an emergency.

   (2)I have been feeling distressed and seeing my counsellor at Foundation House a lot.

   (3)I’m not motivated enough to do anything because of my health issues.

4. On that first point of the application for leave to extend the time for the filling of the substantive application, I accept the submission of counsel for the respondent that contrary to the rules of the Federal Circuit Court, in particular, rule 44.05(c), no affidavit has been filed in support of that application and I have received no submissions today in support of that application.  That being the case, leave to file the application for judicial review out of time must be refused on the basis that I have no evidence before me in support of the application.

5. Well, in respect of costs, even though I have not given leave for the application to be filed out of time, it is quite clear that the respondents have gone to the necessary trouble of preparing their responsive arguments, filing documents, preparing court books and in that case, I am of the view that there should be an order for costs.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  30 July 2014