SZHRZ v Minister for Immigration and Citizenship

[2009] FCA 84

FEDERAL COURT OF AUSTRALIA

SZHRZ v Minister for Immigration and Citizenship [2009] FCA 84

MIGRATION – appeal from a decision of the Federal Court of Australia refusing an application for extension of time to appeal from an order of the Federal Magistrates Court – appeal incompetent

Held: appeal dismissed

Federal Court of Australia Act 1976 (Cth)
Federal Court Rules

BZAC v Refugee Review Tribunal [2005] FCA 675
NBDW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 24
SZHRZ v Minister for Immigration and Citizenship [2008] FCA 1440
Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543

SZHRZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1536 of 2008

JAGOT J
13 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1536 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHRZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	13 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The notice of motion filed on 26 September 2008 is dismissed.

2.The appellant is to pay the first respondent’s costs as agreed or taxed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1536 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHRZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JAGOT J
DATE:	13 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By notice of motion filed on 26 September 2008 the appellant seeks an order that a judgment of this Court (SZHRZ v Minister for Immigration and Citizenship [2008] FCA 1440) be reconsidered by the Full Court.

2. The primary judge dealt with an application for an extension of time to file and serve a notice of appeal from the orders of the Federal Magistrates Court given on 19 July 2006.  Although the primary judge considered that there was an argument that the Refugee Review Tribunal’s decision was affected by jurisdictional error, his Honour noted that this was not the only consideration with respect to the application to extend time.  More than two years had elapsed since the time for filing and serving a notice of appeal expired.  Further, the appellant initially commenced appeal proceedings in August 2006 which he discontinued in November 2006, leading to the inference that the appellant and his advisers accepted the correctness of the decision.  The primary judge dismissed the application for an extension of time albeit not “without some hesitation” (at [9]).

3. The appellant stressed that the primary judge (in substance) had found the Tribunal and Federal Magistrates Court to have erred.  Further, the appellant said that the primary judge himself had found the issue difficult to resolve despite ultimately refusing to grant the extension of time.  Given the seriousness of the consequences of the refusal for the appellant and the lack of any prejudice to the Minister, the appellant submitted that justice required that his appeal be heard.

4. It is easy to understand the appellant’s concerns. From the appellant’s point of view the Tribunal and Federal Magistrates Court erred and yet his appeal cannot be heard in order to correct the error. These matters clearly weighed heavily on the mind of the primary judge exercising the discretion to grant or refuse an extension of time even though he ultimately refused to do so having regard to all of the circumstances of the application. With respect to the present notice of motion, the difficulty for the appellant is that s 24(1AAA) of the Federal Court of Australia Act1976 (Cth) provides that an appeal may not be brought to the Court from a judgment of the Court constituted by a single Judge exercising the appellate jurisdiction of the Court in relation to an appeal from the Federal Magistrates Court. In NBDW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 24, the Full Court (Weinberg, Jacobson and Lander JJ) found that a single Judge dismissing an application for an extension of time was exercising the appellate jurisdiction of the Court so that the effect of s 24(1AAA) was that the purported appeal was incompetent. The Full Court (citing Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543) further held that, by reason of ss 24(1A) and 25(2) of the Federal Court Act, no appeal lies from a decision of a single Judge dismissing an application for an extension of time to seek leave to appeal except by special leave to the High Court.

5. It follows that, irrespective of the potential strength of the arguments about jurisdictional error (which were recognised by the primary judge), the appellant has exhausted his appeal rights in this Court. It also follows that any alleged errors by the primary judge in respect of the exercise of discretion are not able to be dealt with by the notice of motion as the appeal is barred by s 24(1AAA) of the Federal Court Act. The appellant’s only possible avenue for further legal action in relation to this matter is to seek leave to appeal from the High Court.

6. I should also mention that the appellant forwarded a letter to my chambers after the hearing dated 11 February 2009. That letter did not raise any matter capable of altering the legal position as set by s 24(1AAA) but reiterated the appellant’s feeling of grievance that the Tribunal’s decision appeared to disclose jurisdictional error but circumstances left him without a remedy. I have already mentioned above the fact that the same issue clearly weighed heavily on the mind of Edmonds J when he decided to refuse leave to extend time not “without some hesitation”. Given s 24(1AAA) this Court can now do no more.

7. In BZAC v Refugee Review Tribunal [2005] FCA 675 Spender J held that a single judge could dismiss an appeal manifestly incompetent having regard to s 24(1AAA). I agree and thus dismiss the notice of motion with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated:        13 February 2009

The Appellant appeared in person.
Solicitors for the First Respondent:	Sparke Helmore
The Second Respondent did not appear.

Date of Hearing:	10 February 2009
Date of Judgment:	13 February 2009