SZOLY v Minister for Immigration
[2010] FMCA 617
•13 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOLY v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 617 |
| MIGRATION – Application for extension of time for an application to review a decision of the Refugee Review Tribunal – extension of time refused. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.417, 477 Migration Regulations 1994 (Cth) |
| Applicant: | SZOLY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1322 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 13 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 13 August 2010 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms N Johnson Sparke Helmore |
INTERLOCUTORY ORDERS
An extension of time be refused.
The application filed on 16 June 2010 is dismissed as incompetent.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1322 of 2010
| SZOLY |
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 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 23 February 2007 and presumably handed down some time later. Under transitional provisions relating to the enactment of the currently applicable time limits in s.477 of the Migration Act 1958 (Cth) (“the Migration Act”), the Tribunal decision is taken to have been made on 15 March 2009.
The application before the Court was filed on 16 June 2010. Section 477(1) of the Migration Act applies and the applicant requires an extension of time because the application was not filed within 35 days of the date of the Tribunal decision. The Court has a discretion under s.477(2) of the Migration Act to grant an extension of time if the interests of the administration of justice require it. The applicant seeks that extension of time.
I gave procedural orders in this matter on 8 July 2010. I gave the applicant the opportunity to file and serve additional evidence in support of his extension of time application. He has not taken up that opportunity. He relies upon his affidavit, filed with his original application which relevantly states that he did not appeal in time because he did not know that he had the right to appeal.
I also have before me as evidence the court book filed on 2 July 2010.
There are a range of considerations relevant to the consideration of extension of time applications under the Migration Act. These include the extent of the delay and the reason for the delay, whether there is any merit in the substantive application, issues of prejudice and the public interest and the Court’s discretion. In the present case, the application was filed more than three years after the Tribunal decision was actually made and approximately 15 months after the decision is taken to have been made. That is a long delay.
The applicant sought to explain the delay by statements from the bar table. Essentially, the applicant says that he entrusted his affairs to a person holding themselves out to be a migration agent, who was also his landlord. There was a dispute and the applicant left the premises. His landlord was also his authorised recipient for correspondence from the Tribunal and the applicant was not informed of the Tribunal decision. In March or April this year, with the assistance of others, the applicant sought the intervention of the Minister, apparently under s.417 of the Migration Act. That request was not successful and, in the light of that failure, the applicant now seeks to exercise an appeal to this Court. I have no reason to disbelieve what the applicant has told me.
The court book records that another person living at the same address as the applicant at the time of the Tribunal review was his authorised recipient. The Tribunal met its obligation to correspond with that person. It is plausible that if the applicant changed address he would not have found out about the Tribunal decision for some time. However, there is no indication that the applicant notified the Tribunal of a change of address. Even on the applicant’s own account, he did not act in a timely way to discover his status and take appropriate action. I am not satisfied that the applicant has advanced a satisfactory explanation for his delay in coming to the Court.
Further, I am not satisfied that the proposed application raises a serious issue to be tried. The application contains three grounds. The first ground is the unremarkable proposition that the decision involved an important exercise of the power conferred by the Migration Act and Migration Regulations 1994 (Cth). The second ground is that there was no evidence or other materials to justify the making of the decision. The ground is unparticularised. The applicant’s claims before the Minister and the Tribunal were based on an assertion of persecution by reason of the applicant’s Catholic faith. The Tribunal found the applicant’s claims to be not credible and that the applicant was not a truthful witness. In particular, although the applicant asserted a leadership role within the church, he demonstrated to the Tribunal an almost complete ignorance of the faith and an almost complete lack of participation in any church events. The third ground in the application is an assertion of future harm if the applicant returns to China. That simply goes to the merits of the Tribunal decision.
In my view, if an extension of time were granted, the application would be doomed to fail. I am not satisfied that there is any reason, in the interests of the administration of justice, to grant an extension of time. I therefore order that an extension of time be refused and that the application filed on 16 June 2010 be dismissed as incompetent.
The application having been dismissed, costs should follow the event. The Minister seeks costs in accordance with the Court’s scale. The applicant complained that he should have had an opportunity to seek legal advice, but did not make submissions directly bearing on the issue of costs. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935, in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 17 August 2010
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