SZOLA v Minister for Immigration and Citizenship

[2010] FCA 1104

FEDERAL COURT OF AUSTRALIA

SZOLA v Minister for Immigration and Citizenship [2010] FCA 1104

Citation:		SZOLA v Minister for Immigration and Citizenship [2010] FCA 1104
Appeal from:		SZOLA & Anor v Minister for Immigration & Anor [2010] FMCA 674
Parties:		SZOLA and SZOLB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):		NSD 1082 of 2010
Judges:		BUCHANAN J
Date of judgment:		12 October 2010
Legislation:		Acts Interpretation Act 1901 (Cth) s 36(1) Migration Act 1958 (Cth) ss 430B(4), 476A(3), 477
Cases cited:		Fisher v Minister for Immigration and Citizenship (2007) 162 FCR 299 Keo v Minister for Immigration and Citizenship (2009) 177 FCR 479 SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 SZICV v Minister for Immigration and Citizenship (2007) 158 FCR 260
Date of hearing:	12 October 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	8
Counsel for the First Appellant:	The First Appellant appeared in person
Solicitor for the First Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1082 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOLA
First Appellant

SZOLB
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	12 OCTOBER 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The notice of objection to competency filed on 7 September 2010 is upheld.

2.The notice of appeal filed on 23 August 2010 is dismissed with 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 1082 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOLA
First Appellant

SZOLB
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	12 OCTOBER 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I shall refer to the persons who initiated the proceedings in this Court as “the appellants”, although as will be seen I have concluded that their attempted appeal is incompetent and may not be heard by this Court.  The appellants are citizens of India who arrived in Australia on 2 August 2009.  They are husband and wife.  The wife’s claims depend on those made by her husband.  On 15 September 2009 the husband lodged an application for a protection visa which was refused by a delegate of the Minister on 8 December 2009.  On 8 January 2010 an application was made to the Refugee Review Tribunal (“the RRT”) for review of the delegate’s decision.

2. On 14 April 2010 the appellants were notified that the delegate’s decision had been affirmed by the RRT.  They attempted to make an application to the Federal Magistrates Court of Australia (“FMCA”) for judicial review of the decision of the RRT, contending that the RRT had made jurisdictional errors.  In a judgment delivered on 10 August 2010 the FMCA dismissed the application for judicial review as incompetent (SZOLA & Anor v Minister for Immigration & Anor [2010] FMCA 674). The reason why the application for judicial review was dismissed as incompetent is that it was not filed within the time allowed by s 477 of the Migration Act 1958 (Cth) (“the Act”) and the FMCA was not satisfied that, in the interests of the administration of justice, it was necessary to grant an extension of time in which the application might be made (s 477(2)(a) of the Act).

3. Section 477 of the Act allowed a period of 35 days in which, subject to an extension of time being granted, an application for judicial review against the decision of the RRT might be made. The decision of the RRT was dated 13 April 2010. The FMCA took the view that the application for judicial review was three days out of time. In my view this conclusion involved a misunderstanding. Although the decision of the RRT was dated 13 April 2010 it was handed down on 14 April 2010. Under the Act that is taken to be the date of the decision (s 430B(4)). Disregarding the day on which the decision was handed down (see Acts Interpretation Act 1901 (Cth), s 36(1)) the applicants were required to file their application for judicial review on or before 20 May 2010. They were one day late.

4. However the approach taken by the FMCA was not as harsh as it might first appear.  The FMCA accepted that the delay was a short one and that there would be no prejudice to the Minister arising from that delay if an extension of time was granted.  Although the FMCA was critical of the fact that no explanation was advanced even for the short delay which had occurred it is clear from the judgment from which the appellants now wish to appeal that the real reason why an extension of time was not granted was because the application for judicial review had no prospect of success and it was therefore not in the interests of the administration of justice for any extension of time to be granted.

5. In order to reach those conclusions the judgment of the FMCA set out in some detail the procedural course of events, including the way in which the RRT dealt with the appellants’ claims.  The FMCA came clearly to the view that no jurisdictional error had been committed by the RRT and that there was no prospect of an application for judicial review succeeding.  It was for that reason, which was described by the FMCA as “the critical factor” why an extension of time, even for a short period, was not granted.

6. I have dealt with the foregoing matters in a little detail to dispel any impression which might otherwise be generated that the appellants had been dealt with harshly and in an overly technical manner. However, the obstacle which faces them in their appeal to this Court is even more substantial. Section 476A(3) of the Act prohibits an appeal to this Court from a judgment of the FMCA refusing to extend time under s 477 of the Act. It is competent for the Parliament to limit the jurisdiction of this Court in that way (see SZICV v Minister for Immigration and Citizenship (2007) 158 FCR 260; Fisher v Minister for Immigration and Citizenship (2007) 162 FCR 299; SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410; Keo v Minister for Immigration and Citizenship (2009) 177 FCR 479). The discussion in the cases referred to concerned the terms of s 477 of the Act in an earlier form but the principle applied yields the same conclusion in the present case. The jurisdiction of this Court has been effectively excluded if, as occurred in the present case, an application for judicial review is dismissed because it is brought out of time and no extension of time is granted by the FMCA.

7. It follows that the attempted appeal to this Court is not competent and that the notice of objection to the competency of the appeal filed by the Minister on 7 September 2010 must be upheld.  I see no reason why costs should not follow the event in the ordinary way.

8. Accordingly, the orders which I will make are:

   1.The notice of objection to competency filed on 7 September 2010 is upheld.

   2.The notice of appeal filed on 23 August 2010 is dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        12 October 2010