SZODB v Minister for Immigration - [2010] FMCA 144

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZODB v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 144

MIGRATION – Review of Refugee Review Tribunal – application to the Court filed out of time – extension of time refused.

Migration Act 1958 (Cth), ss.412, 476, 477

Migration Regulations 1994 (Cth)

Applicant:

SZODB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 187 of 2010

Judgment of:

Driver FM

Hearing date:

3 March 2010

Delivered at:

Sydney

Delivered on:

3 March 2010

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms E Warner Knight
Australian Government Solicitor

INTERLOCUTORY ORDERS

The application for an extension of time is refused.
The application for review is dismissed as incompetent.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 187 of 2010

SZODB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application filed on 2 February 2010 seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 17 June 2008. The Tribunal found that it did not have jurisdiction in the matter because the application to the Tribunal was not made within the period prescribed for such applications, having regard to s.412(1)(b) of the Migration Act 1958 (Cth) (“the Migration Act”) and regulation 4.31(2)(b) of the Migration Regulations 1994 (Cth) (“the Migration Regulations”).
The application before the Court seeks an extension of time, pursuant to s.477 of the Migration Act. It is apparent that an extension of time is required if the Court is to deal with the application. Section 477 of the Migration Act relevantly provides that an application to the Court under the Court’s jurisdiction in s.476 of the Migration Act is to be made within 35 days of the date of the migration decision.
That provision in its present form commenced on 15 March 2009. Under transitional provisions, decisions of the Tribunal made before that date are taken to have been made on the commencing day of the amendments. The present application was filed approximately nine months after 15 March 2009. Section 477(2) relevantly provides that the Court may, by order, extend the 35-day limitation period if an application for an extension of time is made and the Court is satisfied that it is necessary, in the interests of the administration of justice, to make the order.
The applicant has made an extension of time application, but I am not satisfied that the interests of the administration of justice required the making of an order extending time.
The circumstances as explained by the applicant both orally and in writing are depressingly familiar. The applicant asserts that he was assisted by a “migration agent” who delayed making an application to the Tribunal. The applicant was initially unable to provide…

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 144
Decision Date: 3 March 2010

CaseChat Overview and Summary

The Federal Magistrates Court of Australia dealt with an application by SZODB seeking a review of a decision by the Refugee Review Tribunal. The Tribunal had found it lacked jurisdiction as SZODB had not lodged an application within the time prescribed by the Migration Act 1958 and the Migration Regulations 1994. SZODB applied for an extension of time to file the review application, which was well beyond the statutory 35-day limit. The central legal issues involved the interpretation and application of the time limits under the Migration Act and the criteria for granting an extension of time under s.477. The Court considered whether the administration of justice required an extension of time, given SZODB's explanations for the delay, which largely centred on financial constraints and alleged incompetence of a purported migration agent. The Court found that SZODB's reasons were insufficient to warrant an extension of time. It concluded that the Tribunal was correct in finding it lacked jurisdiction due to the late application, and thus, the application for review was dismissed as incompetent. The Court also ordered SZODB to pay the Minister's costs of $2,000.

Orders