SZIOU v Minister for Immigration and Multicultural Affairs

[2006] FCA 1137

FEDERAL COURT OF AUSTRALIA

SZIOU v Minister for Immigration & Multicultural Affairs [2006] FCA 1137

SZIOU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 942 OF 2006

BENNETT J
9 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 942 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIOU
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	9 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal be joined as the second respondent.

2.The application for leave to appeal is dismissed.

3.The applicant is to pay the first respondent’s 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 942 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIOU
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	9 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks leave to appeal from a judgment of Federal Magistrate Driver in which his Honour dismissed an application for an order to show cause why relief to set aside a decision of the Refugee Review Tribunal should not be granted (SZIOU v Minister for Immigration & Multicultural Affairs [2006] FMCA 602). The matter was heard by his Honour as an immediate hearing pursuant to r 44.11(a) of the Federal Magistrates Court Rules 2001 (Cth) (‘the rules’). His Honour dismissed the application pursuant to r 44.12(1)(a) of the rules because he was not satisfied that it raised an arguable case for the relief claimed.

2. Leave to appeal from the Federal Magistrate’s decision is required in this Court because the dismissal of a show cause application under r 44.12(1)(a) of the rules is interlocutory (r 44.12(2); s 24(1A) of the Federal Court of Australia Act 1976 (Cth)).

3. The applicant’s difficulties as stated in his affidavit and as repeated to the Court relate to the actions of his migration agent. The background facts of the applicant’s relationship with his migration agent are set out at [3] of the Federal Magistrate’s decision. In essence, the application for review of the Delegate’s decision was not lodged with the Tribunal within the prescribed period of 28 days of notification of the decision as required by s 412(1)(b) of the Migration Act1958 (Cth) (‘the Act’).

4. The limitation period is a mandatory provision and, as the Tribunal noted, there is no provision in the Act for an extension of time. Accordingly, the Tribunal’s decision was that it had no jurisdiction to deal with the applicant’s application for review. The Federal Magistrate found the Tribunal was correct in finding that the review application was lodged out of time and that it had no jurisdiction (at [5]). It followed that the application before the Federal Magistrate had no prospect of success and his Honour dismissed the application because no arguable case for the relief claimed arose (at [5]).

5. The applicant states in his affidavit filed in this Court that he ‘lost all the chance [of obtaining a protection visa] just because I was bad luck and met with some person who cheated me’.  Unfortunately, that cannot support a finding of jurisdictional error on the part of the Tribunal.  It has not been demonstrated that there was any failure on the part of the Tribunal in the course that it took nor has any error been identified in the decision of the Federal Magistrate.

6. The application for leave to appeal should be dismissed.  The applicant is to pay the first respondent’s costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:        25 August 2006

The Applicant appeared in person.

Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	9 August 2006
Date of Judgment:	9 August 2006