SZODN v Minister for Immigration and Citizenship

[2010] FCA 886

FEDERAL COURT OF AUSTRALIA

SZODN v Minister for Immigration and Citizenship [2010] FCA 886

Citation:	SZODN v Minister for Immigration and Citizenship [2010] FCA 886
Appeal from:	Application for leave to appeal: SZODN v Minister for Immigration and Citizenship [2010] FMCA 269
Parties:	SZODN and SZODO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:	NSD 505 of 2010
Judge:	KATZMANN J
Date of judgment:	25 June 2010
Legislation:	Federal Court of Australia Act 1976 (Cth) s 24 Migration Act 1958 (Cth) ss 476A(3)(a), 477
Cases cited:	Plaintiff S157 v Commonwealth [2003] HCA 2, 211 CLR 476
Date of hearing:	25 June 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	7
The applicants appeared by telephone with the assistance of an interpreter
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 505 of 2010

BETWEEN:

SZODN
First Applicant

SZODO
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	KATZMANN J
DATE OF ORDER:	25 JUNE 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for leave to appeal is dismissed.

2.        The applicants pay the first respondent’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 505 of 2010

BETWEEN:

SZODN
First Applicant

SZODO
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	KATZMANN J
DATE:	25 JUNE 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicants are husband and wife.  They are Indian citizens who unsuccessfully applied to the first respondent (Minister) for protection visas some three months after arriving in Australia on 26 May 2008.  Shortly put, the applicant husband claimed he was a member of the Congress Party and an active member of its youth wing at a district level and had to leave India because of threats made by members of opposition political parties to harm him and his family.  His wife’s claim depended on the success of his:  see Migration Act 1958 (Cth) (Migration Act) s 36(2)(b).  An application to the second respondent (Tribunal) for a review of that decision was also unsuccessful, and so the applicants filed an application for judicial review with the Federal Magistrates Court.

2. The Tribunal decision was made on 4 March 2009. By 19 August, if not before, the applicants had been notified of that decision. On that date an unnamed lawyer was said to have applied to the Minister pursuant to s 417 of the Migration Act to intervene in the case to make a more favourable decision. On 25 August 2009 a letter acknowledging receipt of the application was sent to the applicants. In it they were advised not to discontinue any application for judicial review on the expectation that the Minister would intervene. In fact, no application for judicial review had been filed. On 14 January 2010 the Department of Immigration and Citizenship advised the applicant husband that the Minister had decided that it was not in the public interest to intervene and substitute a more favourable decision for the decision of the tribunal.

3. It was not until 5 February 2010, some 11 months after the Tribunal’s decision, that the applicants commenced proceedings in the Federal Magistrates Court. By that time, by reason of the provisions of s 477(1) of the Migration Act which currently provides for a 35 day period for an application to the court, running from the date of the decision they were well out of time. In the application before the Federal Magistrates Court the applicants indicated they sought an extension of time. The application form notified them that if an extension was required, they had to file an affidavit explaining the delay and the reasons why an extension of time should be granted. No such affidavit was filed. An affidavit was filed, but all it said in support of the application for an extension of time was that the application should be allowed “for the [sake] of natural justice”.

4. From the bar table, the applicant wife blamed an unnamed Indian lawyer in Griffith, apparently the same lawyer who had prepared the s 417 application to the Minister, for failing to file the application on time. She declined to name the lawyer. The Federal Magistrate’s power to grant an extension of time is conferred by s 477(2) of the Migration Act. Assuming in favour of the applicants (as the Federal Magistrate apparently did) that the current version of s 477 applies, pursuant to subs (2), the Federal Magistrates Court had a discretion to extend the 35 day period if it considered it necessary, in the interests of the administration of justice, to do so. On 21 April 2010 Lloyd-Jones FM refused the application, in substance because it would have been futile to grant it because there was no jurisdictional error in the Tribunal’s decision (see s 476 of the Migration Act and Plaintiff S157 v Commonwealth [2003] HCA 2, 211 CLR 476).

5. Now the applicants have applied to this Court, pursuant to Division 1 of O 52 of the Federal Court Rules, for leave to appeal the federal magistrate’s decision. The application, filed on 12 May 2010, was supported by an affidavit from the applicant husband, in which he states that the federal magistrate did not consider his application, he is dissatisfied with the order (and in effect the fact that it was delivered ex tempore, he was unrepresented and he received no assistance from a lawyer). The Minister has filed a notice of objection to competency. The objection is well founded. Despite the jurisdiction conferred on this Court by s 24 of the Federal Court of Australia Act 1976 (Cth) to hear and determine appeals from judgments of the Federal Magistrates Court exercising original jurisdiction in a wide range of matters, s 476A(3)(a) of the Migration Act expressly removes that jurisdiction in the case of an appeal from a judgment of the Federal Magistrates Court that either makes or refuses to make an order under s 477(2).

6. As the judgment from which the applicants seek to appeal is such a judgment, I have no jurisdiction to entertain an appeal, and, therefore, have no option but to dismiss the application for leave to appeal.

7. I make an order in favour of the Minister that the applicants pay the Minister’s costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

Associate:

Dated:       18 August 2010