FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOPD v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 178 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. PRACTICE & PROCEDURE – Complaint concerning standard of interpretation – solicitor for applicant seeking to have applicant further examined – application to re-open dismissed. The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and was given the pseudonym “SZOPD”. |
| Migration Act 1958 (Cth), ss.45, 65, 66, 91X, 412(1)(b), 417, 494A-494D |
| H v Minister for Immigration & Multicultural Affairs [2002] FCA 126 Lobo v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 200 ALR 359 Maroun v Minister for Immigration & Citizenship [2009] FCA 1284 Minister for Immigration & Citizenship v Abdul Manaf (2009) 111 ALD 437 Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 Pomare v Minister for Immigration & Citizenship [2008] FCA 458 Semunigus v Minister for Immigration & Multicultural Affairs [2000] FCA 240 Singh v Minister for Immigration & Anor [2010] FMCA 305 Sloane v Minister for Immigration, Local Government & Ethnic Affairs (1992) 28 ALD 480 SZOFE v Minister for Immigration & Citizenship [2010] FCAFC 79 Zhan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 327 |
| Applicant: | SZOPD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1909 of 2010 |
| Judgment of: | Lloyd-Jones FM |
| Hearing dates: | 20 December 2010 and 7 February 2011 |
| Date of Last Submission: | 7 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 1 April 2011 |
REPRESENTATION
| Advocate for the Applicant: | Mr Silva (solicitor) |
| Solicitors for the Applicant: | Silva Solicitors |
| Advocate for the Respondents: | Mr Markus (solicitor) |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application, filed on 31 August 2010, is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1909 of 2010
| SZOPD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court orders made on 19 October 2010, the solicitor for the respondent was required to file a folder which was to be indexed, labelled and paginated containing all of the documents which may be relevant to the hearing. This order was complied with and the volume is identified as Court Book (“CB”). On the date of the hearing, the Court Book was marked Exhibit “A”.
An affidavit of [SZOPD] affirmed 12 November 2010, and filed in Court on 15 November 2010, was read. Mr Silva, appearing for the applicant, sought leave to file a further amended application. Mr Markus raised objection to the late filing of this document and the attempt by the applicant to introduce new evidence. After hearing submissions from both parties, leave was granted for the filing of the further amended application and I granted Mr Markus an…
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- Case
- [2011] FMCA 178
- Decision Date
CaseChat Overview and Summary
The court first addressed the issue of jurisdiction. It examined whether the initial notification letter from the Department of Immigration constituted a valid notification under section 66(2)(d) of the Migration Act 1958 (Cth). The Tribunal had found that the notification was valid, and the applicant was deemed to have received it on 14 December 2001. The court agreed with the Tribunal's findings, confirming that the notification was indeed valid and that the prescribed period for lodging the review application began on that date. Consequently, the court upheld the Tribunal's decision that the review application filed on 4 November 2009 was out of time.
The court also considered whether there were any reviewable errors in the RRT's decision. The applicant argued that the Tribunal had misinterpreted the notification process and that this warranted a re-examination of the applicant's case. However, the court found no basis for this contention, agreeing with the RRT that the applicant's submission did not provide sufficient grounds to accept the late application. The court concluded that once a delegate's decision has been properly notified, the review period does not restart, even if the applicant receives the decision again.
The Federal Court dismissed the applicant's appeal and ordered that the applicant pay the respondent's costs and disbursements associated with the application. This decision underscores the importance of timely review applications and the strict adherence to statutory timelines in migration matters.
Orders
Orders of the court
1.
The application, filed on 31 August 2010, is dismissed.
2.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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