SZFSH v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 557

FEDERAL COURT OF AUSTRALIA

SZFSH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 557

Migration Act 1958 (Cth) s 417

SZFSH AND ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 633 OF 2006

TAMBERLIN J
SYDNEY
18 APRIL 2006

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 633 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:

SZFSH & ANOR
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

TAMBERLIN J

DATE OF ORDER:

18 APRIL 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The application is dismissed with 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 633  OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:

SZFSH & ANOR
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECON+D RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	18 APRIL 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 30 September 2005, Federal Magistrate Nicholls upheld a Notice of Motion brought by the first respondent seeking dismissal of an application by the appellants for review of a decision of the Refugee Review Tribunal (“RRT”) made on 1 September 1997.  The appellants were notified of this decision by letter dated 3 September 1997.  The RRT upheld a decision of a delegate of Minister made on 5 December 1996 to refuse protection visas to the appellants.

2. The Federal Magistrate found that the grounds advanced in the application were untenable and it was apparent that the application based on these grounds would fail.  The Federal Magistrate said that the appellants had not raised grounds with any prospect of success to challenge the RRT's decision.  Nor could the Federal Magistrate see any other grounds that might have some prospect of success such that the matter should be allowed to proceed to a final hearing.  The Federal Magistrate discussed the grounds that had been raised before him and gave detailed reasons as to why there was no substance in any of them.

3. In the course of his judgment, the Federal Magistrate said that it was therefore not necessary for him to deal with the first respondent's Notice of Objection to Competency.  However, he noted that the appellants had indicated that they were notified on 1 September 1997 of the decision that was the subject of the application.  The application to the Federal Magistrates Court was made on 10 February 2005, some seven years and five months later.  The appellant wife was unable to provide any explanation to the Federal Magistrate for the very lengthy delay in bringing the complaint before the Court.

4. The Federal Magistrate considered that the appellants’ reference to their application to the Minister to exercise her discretion pursuant to s 417 of the Migration Act1958 (Cth) was not an adequate explanation for such a lengthy delay. This application was refused by the Minister and the evidence indicates that the appellants were notified of this decision on 28 February 2006.

5. In order for an appeal to proceed in this matter, it is necessary that an extension of time be granted to the appellants to file and serve a Notice of Appeal.  The question on this application is whether such an extension should be granted.  The application in the present case, which will be treated as an application for an extension of time, was only filed on 28 March 2006.

6. The explanation proffered for the delay in lodging the application to this court was that an application had been made to the Minister under s 417 of the Migration Act.  Subsection 417(1) provides:

   ‘If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.’  (Emphasis added)

   It is apparent from the wording of this section that it is discretionary. 

7. Subsection 417 (7) provides:

   ‘The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.’

8. It was sought to be argued before me today, and was raised as a matter in the draft Notice of Appeal filed on 28 March 2006, that the Minister had failed to properly exercise the discretion under s 417 for a variety of reasons.

9. I am not satisfied that the fact that an application was made to the Minister for a more favourable decision under s 417 affords any reasonable ground on which to extend the time to file and serve a Notice of Appeal. Nor am I persuaded that there is any arguable case that can be made out for the appellant on an appeal, having regard to the reasons of the Federal Magistrate, which I find to be thorough and convincing. I think that an appeal would have no reasonable prospect of success.

10. There were other grounds raised in the draft Notice of Appeal.  However, in my view, having regard to the reasons of the Federal Magistrate, I can see no error of law or principle that would warrant the granting of an extension of time or the hearing of an appeal. 

11. Accordingly, I order that the application for an extension of time be dismissed with costs.

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

Associate:

Dated:             14 June 2006

Representative for the Appellant:	Mr Laba Sarkis
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 April 2006
Date of Judgment:	18 April 2006