SZOBF v Minister for Immigration - [2010] FMCA 138

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOBF v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 138

MIGRATION – Whether applicant should be granted extension of time pursuant to s.477 of the Migration Act 1958 (Cth) to file a proceeding seeking constitutional writ relief – whether delay is satisfactorily explained – whether applicant has any, or any reasonable, prospects of establishing jurisdictional error in the Refugee Review Tribunal’s decision.

Migration Act 1958 (Cth), ss.417; 476A(2); 477; 477(1); 477(2); 477(3)

Applicant:

SZOBF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2974 of 2009

Judgment of:

Emmett FM

Hearing date:

23 February 2010

Date of Last Submission:

23 February 2010

Delivered at:

Sydney

Delivered on:

4 March 2010

REPRESENTATION

Counsel for the Applicant:

Mr P. Reynolds

Solicitors for the Applicant:

Ms M. Guo, Fragomen

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Ms N. Johnson, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2974 of 2009

SZOBF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) to file an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 10 December 2008.
Section 477, relevantly, is as follows:
“(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FMCA 138
Decision Date: 4 March 2010

CaseChat Overview and Summary

SZOBF v Minister for Immigration concerned an application for an extension of time in relation to an application for a remedy under the Migration Act 1958 (Cth). The Applicant sought an extension to lodge an application with the Federal Magistrates Court, following a decision by the Migration Review Tribunal. The matter came before the Federal Magistrates Court to determine whether an extension of time was warranted under section 477(2) of the Migration Act 1958 (Cth). The Applicant argued that the time limit for applying for a remedy had expired and that an extension should be granted in the interests of justice.

The court considered the arguments from both parties, focusing on the provisions of section 477(2) of the Migration Act 1958 (Cth), which allows for an extension of time if it is necessary in the interests of justice. The Applicant contended that exceptional circumstances warranted an extension, given the substantial delay in lodging the application. The Minister for Immigration opposed the extension, arguing that the Applicant had not demonstrated any exceptional circumstances that would justify the delay. The court weighed the arguments and examined the relevant statutory provisions and case law to determine whether the Applicant's circumstances warranted an extension of time.

In its decision, the court found that the Applicant had not provided sufficient grounds to warrant an extension of time under section 477(2) of the Migration Act 1958 (Cth). The court held that the Applicant's delay in lodging the application, without a compelling reason, did not constitute exceptional circumstances. Consequently, the court refused the Applicant's request for an extension of time. The court's decision was grounded in the principle that extensions of time should be granted sparingly and only in cases where there are exceptional circumstances that justify the delay.

The court dismissed the application for an extension of time and ordered that the Applicant's application for a remedy under section 476 of the Migration Act 1958 (Cth) be dismissed as being out of time.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Section 477, relevantly, is as follows:“(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. (2) The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if: (a) an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order. (3) In this section: "date of the migration decision" means: (b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the written statement under subsection 368(1) or 430(1);” I accept the submissions of counsel for the Applicant in relation to the relevant time limits as follows: “The Applicant accepts that he requires an extension of time pursuant to section 477 of the Act. The decision of the Tribunal was made on 10 December 2008. By virtue of the transitional provisions of the Migration Legislation Amendment Act (No. 1) 2009 (Cth), which introduced the current section 477, the date of the decision for the purposes of calculating the expiry of the time limit is 15 March 2009. Therefore the 35 day period expired on 19 April 2009. The Applicant lodged the present application on 4 December 2009 and, therefore requires an extension of time pursuant to section 477(2) for the period between 19 April 2009 and 4 December 2009 (approximately 7 and a half months).” On 10 December 2009, this matter came before me on an urgent basis to prevent the removal of the Applicant from Australia. The Applicant was represented by Mr Reynolds, of counsel. As it turned out, there was no current notice under s.198 of the Act for the Applicant’s removal. In the circumstances, directions were made by me on that occasion for the filing of a further amended application by 8 January 2010 in support of the application for an extension of time and a final hearing, if an extension of time was granted. Both the interlocutory application and the final hearing were set down for 23 February 2010. Further directions were made on 10 December 2009 providing for the filing of any further evidence in support of both the application for an extension of time or any further amended application. At the commencement of the hearing on 23 February 2010, counsel for the Applicant, Mr Reynolds, confirmed that the Applicant relied on a further amended application, filed on 8 January 2010, in support of both the application for an extension of time and final relief. As the First Respondent continued to oppose an extension of time being granted to the Applicant, it was agreed that the Court would first hear and determine the application for an extension of time made pursuant to s.477(2) of the Act.