SZISG v Minister for Immigration and Multicultural Affairs

[2006] FCA 1463

FEDERAL COURT OF AUSTRALIA

SZISG v Minister for Immigration and Multicultural Affairs [2006] FCA 1463

PRACTICE AND PROCEDURE

MIGRATION – application to extend time to file and serve notice of appeal from decision of Federal Magistrate – appeal bound to fail – application dismissed.

Federal Court Rules, O 52 r 15

Migration Act 1958 (Cth), s 477
Migration Litigation Reform Act 2005 (Cth)

SZISG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1193 OF 2006

LANDER J
6 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1193 OF 2006

BETWEEN:

SZISG
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE 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 to file and serve a notice of appeal be dismissed.

2.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 1193 OF 2006

BETWEEN:

SZISG
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LANDER J
DATE:	6 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file and serve a notice of appeal.

2. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 23 October 2003.  On 1 December 2003 the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (the Act).

3. On 4 December 2003 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a Protection visa.

4. On 7 January 2004 the applicant applied for a review of that decision to the Refugee Review Tribunal (the RRT).

5. On 7 June 2004 the RRT determined the matter on the papers.  The applicant had advised the RRT in writing that she did not wish to give oral evidence and consented to the RRT proceeding to make a decision on the review.

6. The RRT addressed the applicant’s claim:

   ‘In the protection visa application the applicant states that she was born on 16 August 1970 in Liaoning in the People’s Republic of China (PRC).  She speaks, reads and writes Mandarin.  She was divorced in June 2003.  The applicant left the PRC on 22 October 2003, and arrived in Australia on 23 October 2003.  Her Australian visa was issued in Beijing on 4 September 2003.  Between August 1970 and October 2003 she lived at the same address at Tie Xi District, Shenyang.  She has completed eight years of education.  Between 1987 and 1995 she worked as a cashier at the Shenyang Electronic Communication Co.

   In the protection visa application the applicant presents a very brief set of claims.  She claims that she got married to her ex-husband in 1993, and her son was born in 1994.  After her marriage her ex-husband tormented her both mentally and physically without any reason.  She (sic) insulted and beat her, and she therefore became the victim of domestic violence.  This was because the Chinese government does not pay any attention to domestic violence.  The applicant suffered domestic violence for nine years before she could get a divorce in June 2003.  Even after the divorce her ex-husband often approached her and threatened the applicant and her son.  She had to leave her hometown and her nine year old son.  The applicant claims that the government provides no help to victims of domestic violence.’

7. The RRT concluded that her claims were so vague and general that the RRT was unable to establish the relevant facts.  However, in particular, the RRT rejected as implausible her claims that she was a victim of serious domestic violence.

8. The applicant took no action in relation to the RRT’s decision until, on 18 April 2006, she applied to the Federal Magistrates Court for a review of the RRT’s decision made on 7 June 2004.

9. The applicant had been taken into detention about one month earlier on 21 or 23 March 2006.  She said she had delayed in bringing the application to the Federal Magistrates Court because it took time to obtain a copy of the RRT’s decision.

10. The applicant’s application to the Federal Magistrates Court was out of time. Section 477 of the Act, as amended by the Migration Litigation Reform Act 2005 (the Reform Act), provides that any application to the Federal Magistrates Court in its original jurisdiction in relation to a migration decision must be made to the Court within 28 days of the actual notification of the decision.

11. By virtue of Clause 42 of Part 2 of Schedule 1 of the Reform Act, where a decision was made prior to the commencement date, s 477 of the Act applies as if the actual notification of the decision took place on the commencement date of the Reform Act, namely 1 December 2005. The applicant, therefore, should have brought her proceedings within 28 days of 1 December 2005.

12. Section 477(2) allows the Court to extend the time within which an applicant may commence proceedings up to 56 days provided the criteria in that subsection are satisfied. That would have meant that the applicant needed to bring her proceedings within 84 days of 1 December 2005, namely 23 February 2006.

13. The application was therefore out of time. Section 477(3) prevents the Court making any order allowing, or having the effect of allowing, an applicant to make an application outside the 28 day period except to extend it by 56 days under s 477(2).

14. The Federal Magistrate, therefore, dismissed the applicant’s application and entered an order on 25 May 2006.

15. On 20 June 2006 the applicant sought to file a notice of appeal in this Court but the notice of appeal was out of time: O 52 r 15(1)(a).  Accordingly, the applicant has sought further time to file and serve a notice of appeal.  I will assume without deciding that an appeal would lie from the Federal Magistrate’s order and that leave to appeal is not required.

16. The draft notice of appeal identifies one ground:

    ‘The Tribunal (RRT)’s decision involved an error of Law in that:

    a. procedures that were required by Migration Act and the Migration Regulations to be observed in connection with the making of the decision were not observed.

    b.    there is no evidence or the other material to justify the making of the decision.’

17. The draft notice of appeal does not identify any ground referable to the Federal Magistrate’s decision.  The relief which is sought in the notice of appeal, being:

    ‘1.       an order that a writ of certiorari be issued quashing the decision of the Tribunal.

    2.        an order that the decision of the Tribunal was made in excess of juridiction (sic) and is null and void.

    3.        an order that the respondent pay the costs of court’

    is also not appropriate for appellate proceedings from the Federal Magistrates Court.

18. The notice of appeal appears to be an application to this Court for relief at first instance.  The applicant is not entitled to bring proceedings in this Court at first instance in relation to the subject matter of the proceedings brought in the Federal Magistrates Court.

19. There was no explanation as to why the applicant did not bring her notice of appeal within time.  That may not, having regard to her status, be of itself enough to refuse the application for leave to file and serve a notice of appeal outside the time prescribed in O 52 r 15.  However, the notice of appeal does not, as I say, identify any error on the part of the Federal Magistrate or seek any appropriate relief on appeal.  The applicant appeared in person today.  She did not address the reasons why her application was dismissed by the Federal Magistrate.  There appears to be no error in the Federal Magistrate’s reasons.

20. In those circumstances, the appeal is bound to fail and the application for the extension of time should be dismissed.

21. The application is therefore dismissed.

I certify that the preceding twenty-one (21) 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 appeared in person
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	6 November 2006
Date of Judgment:	6 November 2006