SZOOD v Minister for Immigration
[2010] FMCA 642
•25 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOOD v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 642 |
| MIGRATION – Application for extension of time – application refused. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.477 |
| Applicant: | SZOOD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1682 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 25 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 25 August 2010 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms J Gallagher Sparke Helmore |
INTERLOCUTORY ORDERS
The application for an extension of time be refused.
The principal application filed on 4 August 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 $1,175 in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1682 of 2010
| SZOOD |
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 4 August 2010 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 18 November 2009. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The application seeks an extension of time for the making of the application, pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Migration Act”). An extension of time is required because the application was not filed within 35 days of the date of the Tribunal decision as required by s.477(1) of the Migration Act.
The Minister filed an amended response on 23 August 2010 resisting the application for an extension of time. The Court has a general discretion to grant an extension of time where it is necessary to do so in the interests of the administration of justice. Factors relevant to the exercise of that discretion include the extent of the delay, the reasons for the delay and whether the application raises a serious issue to be tried.
The extent of the delay in the present case is significant. The applicant in his application advances the following explanation for his delay. He acknowledges receipt of a letter from the Tribunal providing him with the decision of the Tribunal and says that he felt upset. He says that he is not familiar with Australian law and missed the time to lodge his application in this Court. He also says that he did not have enough money to pay fees so he had to delay. I explored these issues with the applicant, particularly on the last point. He said that he was actually confused. He thought that he would have to pay money to make an application to the Court. More recently, he was advised by a person he describes as a migration agent, that he would not have to pay a fee for the filing of the application. It was apparently that advice that stimulated the applicant to lodge his application. It is apparent that the applicant has been assisted in making the application by a person he describes as a migration agent. The applicant invited me to speak to the agent but I have not taken up that opportunity. The identity of the agent is not disclosed on the application or the supporting affidavit.
I received the affidavit as evidence for the purposes of considering the extension of time request. I am satisfied on the basis of the affidavit that the applicant received a letter from the Tribunal dated 18 November 2009 providing him with the Tribunal’s decision. Also included in that letter was a leaflet entitled “Information about Tribunal Decisions” that informed the applicant about his rights. It is apparent that it was the applicant’s choice not to exercise those rights in a timely fashion.
I am not satisfied that the applicant had advanced any satisfactory explanation for his delay in coming to this Court. Neither am I satisfied that the application raises a serious question to be tried.
The application raises three grounds, none of which are particularised. The first is a general allegation of unfairness and a lack of evidence supporting the decision. The second ground is a general denial of procedural fairness. The third ground appears to be an attack on the merits of the Tribunal decision. I have read the Tribunal decision. It does not appear to me that any of the grounds in the application would have any prospect of success.
I conclude that there is no reason why an extension of time is necessary in this case in the interests of the administration of justice. I will therefore order that the application for an extension of time be refused. I will further order that the principal application filed on 4 August 2010 be dismissed as incompetent.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale in the sum of $1,175. The applicant was concerned about an order for costs. He was apparently informed by his migration agent, who the applicant said is a registered agent, that the application to this Court would be free. He was apparently not informed of the risk of an adverse costs order.
The applicant also stated that the grounds in the application were put in by his agent. The applicant had no real knowledge of the procedure upon which he was embarking. I raised with the applicant whether, in the circumstances, there might be an issue of whether costs in this case should be paid by the agent rather than him. The applicant responded that the application was his and if there is a costs liability, he should pay it. I informed the applicant of his right to make a complaint to the Migration Agents Registration Authority if he is dissatisfied with the service he has received from his agent.
I am satisfied that a costs order should be made against the applicant in consequence of the dismissal of his application. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,175 in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 26 August 2010
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