SZEZY v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1832

FEDERAL COURT OF AUSTRALIA

SZEZY v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1832

SZEZY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 2263 of 2005

WILCOX J
8 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2263 of 2005

BETWEEN:	SZEZY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	8 DECEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for extension of time to appeal against the decision of Lloyd-Jones FM be dismissed with costs fixed at $800.

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 2263 OF 2005

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

JUDGE:	WILCOX J
DATE:	8 DECEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application for extension of time to file and serve a notice of appeal against a decision given by Lloyd-Jones FM on 28 October 2005.  The application for extension was filed on 21 November 2005.  That means that it was two days late.  If that was the only difficulty in the applicant's way, I would unhesitatingly grant the extension of time.  However, it seems clear that any appeal against the Magistrate's decision is doomed to failure.

2. The applicant sought a protection visa.  His application was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, the respondent, on 30 September 2002.  The decision was duly notified to the applicant in accordance with the Migration Act 1958 (Cth). The effect of that regulation was that the applicant must be taken to have received the notice on 10 October 2002.

3. Section 412 of the Act requires that any application for review of a delegate's decision by the Refugee Review Tribunal (‘the Tribunal’) be made within a period of 28 days.  In the present case, that meant by 7 November 2002.  However, the application for review was not received by the Tribunal until 7 July 2004, 20 months after the expiration of time.

4. The applicant has given two reasons for his delay in applying to the Tribunal.  Through an adviser, he told the Tribunal, at its hearing of his application for review, that his former migration agent failed to notify a change of address.  The applicant also told both the magistrate and myself that, during the period between the delegate's decision and his application to the Tribunal, he broke his leg and was immobile for a lengthy period.

5. The difficulty which faces the applicant is that nobody has power to extend the 28 day period specified by s 412.  It does not matter how short the interval between the expiration of the 28 days and the application to the Tribunal, or the circumstances which caused the application not to be made within the 28 day period.  Neither the Tribunal nor any court has any power to extend the period of 28 days.

6. I personally think it would be desirable if some discretion was given to the Tribunal or a court to grant an extension of time where there were unusual circumstances.  However, my personal view does not matter.  I am bound by the terms of the statute.

7. When the matter came before the relevant Tribunal member, he formed the preliminary view that the Tribunal did not have jurisdiction.  He invited submissions on this issue.  Submissions were made by a new adviser, then assisting the applicant.  The new adviser accused the applicant's former migration agent of not having informed the department of the applicant's new address.

8. The Tribunal, quite properly, did not endeavour to determine the accuracy of that accusation.  It concentrated on the question whether notification of the delegate's decision had been given in accordance with the relevant requirements of the Act and regulations.  After a careful analysis, the Tribunal concluded the decision had been properly notified and, accordingly, that the application for review then before it was received after expiration of the prescribed time.  The Tribunal therefore determined that it did not have jurisdiction to review the decision.  It made a decision to that effect.

9. The applicant also sought to raise before the magistrate, and in this Court, a breach of s 424A of the Act.  The magistrate dealt with this issue quite simply.  Lloyd-Jones FM observed that the Tribunal did not have jurisdiction to undertake review.  Therefore, no review occurred and the claimed breach of s 424A is unsustainable.  This conclusion is plainly correct.

10. When the matter came before Lloyd-Jones FM, his Honour again analysed what had happened.  He also concluded that the Tribunal lacked jurisdiction to deal with the matter, for the reasons given by the Tribunal itself.  It seems to me that the magistrate was plainly right and that the proposed appeal against his decision would be hopeless.

11. I should add that having regard to the history of the matter, it would be an incorrect exercise of my discretion to grant an extension of time in which to lodge an appeal.  The appropriate order is that the application for an extension of time to appeal against the decision of Lloyd-Jones FM be dismissed with costs.  I will make an order to that effect.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             14 December 2005

The Applicant appeared in person.
Solicitor for the Respondent:	Ms G Broderick of Clayton Utz
Date of Hearing:	8 December 2005
Date of Judgment:	8 December 2005