SZEOC v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1322

FEDERAL COURT OF AUSTRALIA

SZEOC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1322

MIGRATION – application for extension of time to file and serve Notice of Appeal from Federal Magistrates Court – whether the appeal has sufficient prospects of success to make it just that it should proceed – application to the Refugee Review Tribunal was out of time – mandatory time limit of 28 days in s 412 of the Migration Act 1958 (Cth) – Refugee Review Tribunal did not have jurisdiction to review the decision of the delegate of the respondent – no error of law in decision of the Federal Magistrate or the Refugee Review Tribunal

PRACTICE AND PROCEDURE – joinder of Refugee Review Tribunal as a second respondent to the application

Migration Act 1958 (Cth) s 412

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 followed

SZEOC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1407 of 2005

TAMBERLIN J
SYDNEY
1 SEPTEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1407 OF 2005

BETWEEN:	SZEOC APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	1 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave is granted for the applicant’s father to be appointed as the next friend of the applicant.

2.The application is dismissed.

3.No order as to costs of the application.

4. The Refugee Review Tribunal is joined as a second respondent to the application

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 1407 OF 2005

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

JUDGE:	TAMBERLIN J
DATE:	1 SEPTEMBER 2005
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 from a judgment of Federal Magistrate Smith (“the Federal Magistrate”) given on 21 July 2005 at Sydney.

2. The Federal Magistrate dismissed an application filed on 12 October 2004 in the Federal Magistrates Court seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 15 September 2004.

3. The application is only a few days out of time.  The applicant was required to file a Notice of Appeal by 11 August 2005 but instead filed an application for an extension of time on 16 August 2005.  The question arises, however, as to whether there is any point in granting leave, having regard to whether there is any case to be made out by the applicant.

4. It is clear from the material before me that, in the circumstances that have transpired, the application before the Tribunal is out of time pursuant to s 412 of the Migration Act 1958 (Cth). Section 412 provides that an application for review of a decision that is reviewable by the Tribunal must be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision.

5. The applicant was notified of the decision of the delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) by a letter dated 30 August 2002.  In that letter, the applicant was informed that she had a right to have the decision reviewed, but that any application had to be lodged with the Tribunal within 28 days after notification of the decision of the delegate, which the applicant was deemed to have received seven days from the date of the letter.  This time limit was not complied with, as there was a very long delay and this delay has been unexplained.

6. I have considered the reasons of the Tribunal and of the Federal Magistrate, and I note that the Federal Magistrate, after giving careful consideration to all the matters raised by the applicant in relation to the extension of time, refused to grant an extension of time in view of the fact that the proceedings were out of time and the requirement in s 412 was mandatory and could not be waived.

7. The Federal Magistrate referred to the applicant’s father, who appeared today on behalf of his daughter and was given leave by me to appear as her next friend, having requested that his daughter be joined to proceedings which were on foot.  The Federal Magistrate did not think that, in the circumstances, any useful purpose would be served by joining the applicant to her parents’ proceedings or that there was any power for the daughter to be joined to those proceedings.  The Federal Magistrate said at [17] that the “focus [of the request] is too uncertain to allow me to analyse and give it any substance.”  The Federal Magistrate therefore dismissed the application without making any order as to costs.

8. Having regard to the material to which I have been referred and the reasons for judgment of the Federal Magistrate and the decision of the Tribunal, I consider that unfortunately in this case the Tribunal did not have jurisdiction to review the decision of the delegate.  I can see no error in the decision of the Tribunal or of the Federal Magistrate in this respect.

9. This is a matter in which it may be appropriate for the applicant to set the facts out before the Minister, if this has not already been done, with a request for the Minister to take any action that the applicant thinks is appropriate in the circumstances.

10. In this case, I do not have jurisdiction to review the merits of the matter.  The question raised is purely a legal one.  The law is clear and, in the circumstances of this case, there is no jurisdiction to review the decision of the delegate.  Therefore, the application is dismissed and I make no order as to the costs of this application.

11. In this case, my attention has been drawn by the solicitor for the Minister to the comments of the Federal Magistrate warning the applicant that, if this matter were to be pursued further, there may be a risk in relation to costs if the Court thought that it was appropriate to order the applicant to pay the respondent’s costs.  Having regard to the unfortunate history of this matter, I do not consider it appropriate to make any order as to costs in relation to the application for an extension of time.

12. In this case, in view of the remarks of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, it appears appropriate and necessary to have the Tribunal joined as a second respondent to the application for an extension of time in which to file and serve a notice of appeal.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             19 September 2005

The Applicant appeared in person with the assistance of an interpreter.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	1 September 2005
Date of Judgment:	1 September 2005