SZIVU v Minister for Immigration and Citizenship

[2007] FCA 342

FEDERAL COURT OF AUSTRALIA

SZIVU v Minister for Immigration & Citizenship [2007] FCA 342

SZIVU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD2428 OF 2006

JESSUP J
1 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2428 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIVU
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	1 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the respondent referred to in the application for leave to appeal be amended to Minister for Immigration and Citizenship.

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

3.The application for leave to appeal be dismissed.

4.The applicant pay the first respondent’s costs of the application fixed in sum of $1,500.

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	NSD2428 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIVU
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	1 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a judgment of the Federal Magistrates Court given on 7 December 2006.  That court dismissed what it treated as an application for an extension of time by the applicant to make an application for judicial review of a decision made by the Refugee Review Tribunal on 30 September 1998 to affirm a decision of the delegate of the respondent Minister to refuse the applicant a protection visa under the Migration Act 1958 (Cth) (‘the Act’).

2. According to facts as found by the Federal Magistrate, the applicant was advised in 1998 of the decision of the Tribunal to affirm the rejection of the delegate. The Magistrate accepted a submission made on behalf of the respondent Minister that, by the combined operation of s 477 of the Act and Item 42 of Part 2 of Schedule 1 to the Migration Litigation Reform Act 2005 (Cth), the application for judicial review would have been very substantially out of time. Accordingly, pursuant to s 477 of the Act, the Magistrate was not permitted to allow the applicant to make the application which he sought to make.

3. The applicant represented himself before me this morning and has said nothing that would cast any doubt upon the correctness of the Federal Magistrate's judgment.  This seems to be a clear case in which the purported application for judicial review in the Federal Magistrates Court was incompetent. 

4. In the circumstances I propose to reject the application for leave to appeal. 

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:       13 March 2007

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	N Johnson
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	1 March 2007
Date of Judgment:	1 March 2007