SZKTS v Minister for Immigration and Citizenship

[2007] FCA 1852

FEDERAL COURT OF AUSTRALIA

SZKTS v Minister for Immigration and Citizenship [2007] FCA 1852

SZKTS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1648 OF 2007

MADGWICK J
14 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1648 OF 2007

BETWEEN:

SZKTS
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MADGWICK J
DATE OF ORDER:	14 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is dismissed.

2.The applicant is to pay the first respondent’s costs assessed in the sum of $2,000.

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 1648 OF 2007

BETWEEN:

SZKTS
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MADGWICK J
DATE:	14 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a decision of the Federal Magistrates Court whereby Scarlett FM dismissed an application for judicial review of an adverse decision of the Refugee Review Tribunal (“the Tribunal”) as incompetent because out of time under s 477(1) of the Migration Act 1958 (Cth) (“the Act”).

2. The applicant said in his application to the Federal Magistrates Court that he had received notification of the Tribunal’s decision in March of 1997 and this must be correct because, as counsel for the respondent Minister points out, he applied to the Minister under s 417 of the Act in that year.

3. Following difficulties in relation to the administration of the Act the Migration Litigation Reform Act 2005 (Cth) had the effect that a person in the position of the appellant might possibly be allowed 84 days from 1 December 2005, notwithstanding the massive delay until then. 

4. The appellant was still well and truly out of time and the Federal Magistrates Court had no jurisdiction under s 477, as his Honour held. 

5. In any case, as Mr Reilly for the Minister points out, leave to appeal should be refused.  Leaving aside the lack of any comprehensible ground of review asserted in the application to the court below or in the draft notice of appeal here.  The applicant’s delay is substantial to the point of heroic and totally unexplained apart from a cry that he had no money for a lawyer.  This does not prevent a great many other people from pursuing their case and there is no evidence before me which indicates any hardship to him which would have resulted in his inability to obtain a lawyer.  It is perfectly clear that there is unwarranted delay in a great degree which, in my opinion, unarguably would justify the withholding of relief, even if a jurisdictional error were demonstrated.  In my opinion there is no prospect of the Court exercising its discretion to provide the applicant any useful relief.

6. It follows that it would be futile to grant leave to appeal and the application for leave to appeal will be dismissed with costs, assessed in the sum of $2,000.

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

Associate:

Dated:        28 November 2007

For the Applicant:	The appellant appeared in person
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 November 2007
Date of Judgment:	14 November 2007