SZODM v Minister for Immigration - [2010] FMCA 297

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZODM v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 297

MIGRATION – Refugee Review Tribunal – practice and procedure – whether extension of time to file should be granted – whether the applicant’s explanation for delay is satisfactory and reasonable in all the circumstances – whether the grounds of the application for judicial review have reasonable prospects of success.

Migration Act 1958 (Cth), ss.417; 424A; 424A(1); 477

SZOBF v Minister for Immigration [2010] FCMA 138
M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520
Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18

Applicant:

SZODM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 221 of 2010

Judgment of:

Emmett FM

Hearing dates:

19 April 2010 & 23 April 2010

Date of Last Submission:

23 April 2010

Delivered at:

Sydney

Delivered on:

23 April 2010

REPRESENTATION

Applicant appeared in person assisted by a Punjabi interpreter

Counsel for the Respondent:

Ms S. Sirtes

Solicitors for the Respondent:

Ms J. Gallagher, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 221 of 2010

SZODM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

On 5 February 2010, the applicant filed an application seeking judicial review by this Court of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 12 June 2009.
The application identified the grounds upon which he relied and also made an application to this Court for an extension of time to make his application for judicial review of the Tribunal’s decision.
In circumstances where the application was not made within 35 days of the migration decision, s.477 of the Migration Act 1958 (Cth) (“the Act”) provides that the Court may extend the 35 day period if, inter alia, the Court is satisfied that it is necessary and in the interests of the administration of justice to make such an order.
The first respondent opposes time being extended to the applicant.
I accept the written submission of counsel for the first respondent that the statutory period expired on 17 July 2009. The application was filed on 5 February 2010, and it was therefore in the order of 203 days out of time. Certainly, it was well in excess of the 35 day period provided for by s.477 of the Act. The first respondent submits that the delay is significant, the explanation not sufficient and, in any event, there would be no utility in the Court making such an order.
In support of the application for an extension of time the applicant read an affidavit sworn and filed by him on 22 April 2010. Parts of the affidavit were objected to and rulings made at the time. The relevant contents of the affidavit are as follows:
“1. I am the applicant in the above matter…

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 297
Decision Date: 23 April 2010

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, the case of SZODM v Minister for Immigration & Anor [2010] FMCA 297 involved the applicant, SZODM, seeking judicial review of a decision made by the Refugee Review Tribunal (the Tribunal) on 12 June 2009. The application, filed on 5 February 2010, also requested an extension of the time limit for seeking judicial review under the Migration Act 1958 (Cth). The primary legal issue before the court was whether the significant delay in filing the application could be excused, considering the applicant's explanation and the prospects of success for the grounds of the application.

The applicant argued that his delay in filing was due to mental illness stemming from a brutal attack in India, which necessitated treatment at the Transcultural Mental Health Centre from November 2009. Despite this, the court found that the applicant was aware of his appeal rights following a meeting with his migration agent, who advised him of the option to seek judicial review or ministerial intervention. The court concluded that the applicant's explanation for the delay was unreasonable and insufficient, as he had chosen to pursue ministerial intervention instead of judicial review.

Furthermore, the court examined the merits of the grounds of the application, which included claims of procedural unfairness, failure to consider the applicant's religious social group, and misapplication of the relocation test. The court found that the Tribunal had properly considered the applicant's claims and that the grounds lacked reasonable prospects of success. Consequently, the court decided that extending the time for the applicant to file his judicial review application was not warranted. The application for an extension of time was refused, and the applicant was ordered to pay costs.

Orders