SZIOU v Minister for Immigration - [2006] FMCA 602

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIOU v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 602

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – dismissal of show cause application at the first court date – review application lodged out of time – no error by RRT in finding that the review application was ineligible.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth)

Re Minister for Immigration; ex parte Miah (2001) 197 ALR 238

SZCTH v Minister for Immigration (No 2) [2004] FMCA 284 at [26]-[27]

Applicant:

SZIOU

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG934 of 2006

Judgment of:

Driver FM

Hearing date:

26 April 2006

Delivered at:

Sydney

Delivered on:

26 April 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms S Hanstein
Australian Government Solicitor

INTERLOCUTORY ORDERS

The Court directs that the name of the applicant is not to appear on the transcript of today’s hearing.
Pursuant to rule 44.11(a) of the Federal Magistrates Court Rules 2001 (Cth), there shall be an immediate hearing under rule 44.12.
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG934 of 2006

SZIOU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application for an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”). The application was filed on 29 March 2006. The RRT decision was made on 1 March 2006. The applicant asserts notification of that decision on 10 March 2006. On that basis I find that the application was filed within time. The RRT found that it had no jurisdiction to deal with the review application before it because it was not made within the time prescribed under the Migration Act 1958 (Cth) for a review application.
The applicant asserts that he was cheated by a Mr Li who claimed to be a migration agent. The applicant asserts that he authorised Mr Li to lodge applications on his behalf but that Mr Li failed to act properly on his instructions. The applicant also denies notification of the decision of the Minister's delegate. Based upon what was said by the parties at the bar table I decided to order an immediate hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I received as evidence an affidavit by Sharon Elizabeth Hanstein made on 24 April 2006 and the applicant's affidavit made on 28 March 2006. I also gave the applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FMCA 602
Decision Date: 26 April 2006

CaseChat Overview and Summary

In the matter of SZIOU v Minister for Immigration & Anor, the applicant, SZIOU, sought a review of a decision by the Refugee Review Tribunal (RRT) concerning the refusal of a protection visa. The applicant argued that the RRT's decision was flawed because the review application was lodged out of time. The application was dismissed by the Federal Magistrates Court on the basis that it was filed beyond the prescribed time limit under the Migration Act 1958 (Cth). The central issue before the court was whether the RRT made an error in finding that the review application was ineligible due to being lodged late. The court had to determine whether the RRT's decision was legally sound and whether there were any exceptional circumstances that justified extending the time limit for filing the review application.

The court examined the evidence provided by the applicant and the respondents, including affidavits and oral testimony. It was established that the applicant had been poorly represented by a migration agent, Mr. Li, who failed to lodge the review application within the required timeframe. The applicant claimed that he was misled by Mr. Li, but the court noted that there were statutory time limits for filing review applications, and the RRT was correct in finding that the application was out of time. The court acknowledged that while there could be cases where injustice might result from the inability to extend the time for filing a review application, Parliament had set these time limits, and the RRT was correct to adhere to them. The court also cited previous cases which supported the notion that time limits for such applications were non-negotiable except in extraordinary circumstances, which were not present in this case.

Consequently, the court dismissed the application for review, finding it had no prospect of success. It was determined that the RRT's decision was legally correct and that the applicant's claim for relief was not substantiated. As a result, the applicant was ordered to pay the first respondent's costs and disbursements in accordance with the Federal Magistrates Court Rules. This decision underscored the importance of adhering to statutory time limits for review applications and the limited circumstances in which extensions may be granted.

Orders