SZISF v Minister for Immigration and Multicultural Affairs
[2006] FCA 1462
•6 NOVEMBER 2006
FEDERAL COURT OF AUSTRALIA
SZISF v Minister for Immigration and Multicultural Affairs [2006] FCA 1462
PRACTICE AND PROCEDURE
MIGRATION – application for extension of time to apply for leave to appeal – draft notice of appeal bound to fail if filed – application dismissed.
Migration Act 1958 (Cth)
SZISF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1230 OF 2006LANDER J
6 NOVEMBER 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1230 OF 2006
BETWEEN:
SZISF
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE OF ORDER:
6 NOVEMBER 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for an extension of time within which to apply for leave to appeal be dismissed.
2.Leave to appeal be refused.
3.The applicant 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 1230 OF 2006
BETWEEN:
SZISF
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE:
6 NOVEMBER 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application for an extension of time within which to file and serve a notice of appeal.
When the matter was called on before me today the applicant failed to appear. The applicant had been advised in writing by the Australian Government Solicitor of the hearing before me today on 26 September 2006. There is no reason to think that the applicant was not aware that these proceedings were to be heard today.
Mr Markus, who appeared for the first respondent, addressed the merits of the application. It seems to me, in the absence of any particular rule and because of the difference of opinion in relation to the power given a judge of this Court under s 25(2B)(bb) of the Federal Court Act 1976 (Cth), it would be better to consider the application on its merits, although unaided by any submissions from the applicant.
The applicant, who is a citizen of the People’s Republic of China, entered Australia on 25 January 2004. On 24 February 2004 she lodged an application for a Protection (Class XA) visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) (the Act). On 3 March 2004 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a Protection visa. On 2 April 2004 the applicant applied for a review of that decision.
On 4 May 2004 the Refugee Review Tribunal (the RRT) published its reasons for affirming the delegate’s decision not to grant a Protection visa.
On 13 April 2006 the applicant filed an application in the Federal Magistrates Court seeking a review of the decision of the RRT dated 4 May 2004 and handed down on 26 May 2005. The applicant had been notified of the decision on that latter date. The respondent objected to the competency of the proceedings in the Federal Magistrates Court.
The applicant is deemed to have been notified of the RRT’s decision on 1 December 2005: Clause 42, Schedule 1, Part 2 of the Migration Litigation Reform Act 2005 (Cth) (the Reform Act). Pursuant to s 477(1) of the Act, an application for a review of the RRT’s decision must be made within 28 days. That period can be extended by 56 days if the criteria in s 477(2) of the Act are made out. After a period of 84 days has expired from the date of notification, in this case 1 December 2005, the Federal Magistrates Court has no jurisdiction to entertain an application or an application for an extension of time beyond the 28 day period provided for in s 477(3) of the Act.
The applicant’s application was out of time and the Federal Magistrate dismissed the application as incompetent and entered an order accordingly on 31 May 2006.
On 26 June 2006 the applicant applied for leave to appeal from the judgment of the Federal Magistrate given on 31 May 2006 and applied for an extension of time within which to bring that application. Mr Markus contended that the order sought to be appealed from was an interlocutory order. I will assume without deciding that to be the case and assume that leave is required.
If leave is required the application for leave ought to have been made within 21 days: O 52 r 5. In my opinion, the application for an extension of time must be dismissed because there is no prospect that if an extension of time were granted leave to appeal would be granted. Moreover, there is no prospect if leave were granted that an appeal could succeed.
The grounds of the application for leave to appeal do not refer to any error on the part of the Federal Magistrate. The draft notice of appeal does not refer to any error on the part of the Federal Magistrate. The complaint is about the decision of the RRT. The orders sought in the proposed notice of appeal which are for the issue of the constitutional writs and an injunction are inappropriate for an appeal from the Federal Magistrates Court.
In my opinion, there is no prospect that if leave were granted the appeal would succeed. In those circumstances, the application for an extension of time within which to apply for leave to appeal is refused. Leave to appeal is refused.
The orders of the Court will be:
1.Application for extension of time within which to apply for leave to appeal be dismissed;
2.Leave to appeal be refused;
3.The applicant must pay the first respondent’s costs of the application.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 8 November 2006
Counsel for the Applicant: The Applicant did not appear Counsel for the Respondent: Mr A Markus Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 November 2006 Date of Judgment: 6 November 2006
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