SZBWD v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 253

FEDERAL COURT OF AUSTRALIA

SZBWD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 253

SZBWD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 2517 of 2005

ALLSOP J
15 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2517 of 2005

BETWEEN:	SZBWD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	15 MARCH 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time to file and serve a notice of appeal is dismissed.

2.The applicant pay the respondent's costs.

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 2517 of 2005

BETWEEN:	SZBWD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	15 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time in which to file and serve a notice of appeal. The underlying orders of the Federal Magistrates Court were made on 24 November 2005. Those orders dismissed an application brought under s 39B of the Judiciary Act 1903 in relation to a decision of the Refugee Review Tribunal (the “Tribunal”) made on 23 October 2003.  The orders made by the Federal Magistrate were final in nature, dismissing the application.

2. The applicant before me today was some days late in seeking to file a notice of appeal, thus the necessity to seek an extension of time.  No particular point is taken by Mr Carter, who appears on behalf of the Minister, about the lateness of the application.  It is necessary for me not only to be satisfied that there is an explanation for the matter seeking to be filed out of time but also that the application has some conceivable merit.

3. I am satisfied from the material that has been filed that the oversight or mistake in understanding the time should be excused if there is any conceivable basis for the appeal.  That, if I may say so, perfectly and properly is the approach taken by the Minister in the matter.  The fundamental difficulty faced by the applicant is that his application to the Refugee Review Tribunal was filed outside the statutory period required by relevant legislation.  It does appear that there was a wholly understandable reason for this oversight by the applicant.

4. Nevertheless the Tribunal was not empowered by legislation or otherwise to embark on a review of the applicant's claims without having before it a valid application.  The Tribunal was satisfied, for the reasons it expressed, that it did not have a valid application before it because of the lateness of filing.  The Tribunal had no authority by statute or otherwise to extend the time.

5. The application before the learned Federal Magistrate sought to have this decision reviewed.  The application in its terms failed to grasp the difficulty that the Tribunal had identified and to which I have referred.  The Federal Magistrate heard the matter on 24 November 2005.  In a careful and thorough set of reasons the Federal Magistrate identified the difficulties that the applicant had.  After reviewing how the Tribunal had approached the question of time the Federal Magistrate concluded as follows in [8]:

   I reject the assertion that the RRT did not properly apply the Migration Act.  By the operation of the Act the applicant was deemed to have received notification of the delegate's decision on 18 June 2003.  In order to make a valid review application his application needed to reach the RRT by 16 July 2003. The application was not received until 18 July 2003 and the Tribunal was bound to reject it as invalid.

6. The Federal Magistrate then, no doubt in perfectly proper consideration of the position of the applicant in this unfortunate circumstance, clearly set out the applicant's alternative options.  In [9] of his reasons the Federal Magistrate indicated that the appellant could seek to appeal the decision of that day or he could seek to challenge the decision of the delegate.  The Federal Magistrate made clear to the applicant that that latter alternative of challenging the decision of the delegate might be lost in the Federal Magistrates Court or the Federal Court on 1 December 2005.

7. The terms of [9] of the Federal Magistrate's reasons were in the following terms:

   I have informed the applicant of his rights during the course of the hearing in this matter. He has the option of appealing against my decision dismissing his judicial review application. He also has the option of seeking judicial review of the decision of the delegate if he considers there is a legal error in it. He will lose that option in this Court and the Federal Court on 1 December 2005 on the commencement of the Migration Litigation Reform Act 2005 (Cth). Further, the applicant may invite the Minister to consider whether he should be permitted to make a fresh protection visa application. It is, in my view, important that applicants are given a fair opportunity to have their protection visa claims considered on their merits. That is properly a matter for the Minister to consider.

8. For the reasons that he gave the Federal Magistrate was undoubtedly correct in concluding that the Tribunal had not exhibited jurisdictional error. 

9. I see no basis for concluding that there is any argument that the Federal Magistrate was in any way in error.  The draft notice of appeal that has been filed directs attention as to why the applicant was late in filing the review application in the Tribunal.  For the reasons given by the Tribunal and the Federal Magistrate the reasons for that lateness were not relevant, there being no power to extend time by the Tribunal or the Federal Magistrates Court. 

10. The submissions filed by the applicant for this application directed themselves to the lateness of the attempt to file the notice of appeal.  As I said above, the reasons for the lateness are not determinative or influential in my approach to the disposition of this matter.  If there had been any arguable ground of error shown by the Federal Magistrate, delay would not have been a bar to the extension of time.

11. The applicant today sought an adjournment on the basis that he may be able to identify an error given time.  Given the issues in the case I see no likelihood of any legal issue arising by reason of further consideration of the matter.  I have not read the delegate's decision.  The Federal Magistrate indicated a view that review of the delegate's decision may be impossible now in the Federal Court and the Federal Magistrates Court.  The jurisdictions of both those courts are entirely within the control of the Parliament.

12. If there is evidence of jurisdictional error in the delegate's decision only one court in the country can deal with that. The High Court's authority in section 75(v) of the Constitution to control the exercise of administrative power in this country via the Commonwealth and its officers cannot be taken away by Parliament as it is constitutionally conferred jurisdiction.  If the applicant has a complaint as to the lawfulness of the decision currently standing against him it is the High Court of Australia not the Federal Court or the Magistrates Court that can deal with that issue.

13. For the above reasons I do not consider that there is any utility whatsoever in permitting an extension of time for the filing of a notice of appeal as I see that the appeal would be hopeless and bound to fail.  Therefore the application for an extension of time to file and serve a notice of appeal is dismissed and I order the applicant to pay the respondent's costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             22 March 2006

The applicant appeared in person assisted by an interpreter.

Counsel for the Respondent:	A Carter
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	15 March 2006
Date of Judgment:	15 March 2006