SZOXA v Minister for Immigration - [2011] FMCA 298

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOXA v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 298

MIGRATION – Review of decision of Refugee Review Tribunal – application for an extension of time – applicant physically prevented from filing or attempting to file application with the Court Registry – whether it is in the interests of the administration of justice to extend time for making the application – application dismissed as not competent.

Federal Magistrates Court Rules 2001 (Cth), r.13.03C

Migration Act 1958 (Cth), ss.36, 65, 414, 425, 425A, 426A, 441A, 441C, 476, 477

Acts Interpretation Act 1901 (Cth), s.36
Migration Regulations 1994 (Cth), reg.4.35D

Applicant:

SZOXA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2821 of 2010

Judgment of:

Nicholls FM

Hearing date:

17 March 2011

Date of Last Submission:

17 March 2011

Delivered at:

Sydney

Delivered on:

17 March 2011

REPRESENTATION

The Applicant:

No appearance

Appearing for the Respondents:

Ms E Warner Knight

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application for an extension of time made on 31 December 2010 pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.
The application made to the Court on 31 December 2010 is dismissed as not competent.
The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2821 of 2010

SZOXA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

This matter came on at a first Court date on 19 January 2011. The applicant appeared in person. The Minister was represented by a solicitor. Short minutes of order were handed up. I made orders on that day in the presence of the applicant, and amongst those orders I ordered that the matter be set down for final hearing on 11 March 2011, at 10.15am, before me here in this Courtroom. This was subsequently rescheduled to a later date of Thursday 17 March 2011 at 10.15am.

I am satisfied the applicant was given reasonable notice of this.
When the matter was called outside the Court today there was no appearance by the applicant. The matter was stood down. Twenty minutes later,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FMCA 298
Decision Date: 17 March 2011

CaseChat Overview and Summary

The case of SZOXA v Minister for Immigration involved the applicant, SZOXA, seeking an extension of time to lodge an application for judicial review. SZOXA’s initial application for judicial review was filed outside the statutory time limit, necessitating an application for an extension of time under section 477(2) of the Migration Act 1958. The dispute centred around the merits and timeliness of SZOXA's application, with the Minister for Immigration opposing the extension.

The primary legal issues for the court to determine were whether the application for an extension of time was within the statutory limit and whether the application for judicial review itself was competent. The court needed to assess the reasons for the delay in lodging the application and whether the delay was justified under the circumstances. Additionally, the court had to examine whether SZOXA had demonstrated any exceptional circumstances warranting an extension of time.

The court found that SZOXA had not provided sufficient grounds to justify the delay in lodging the application. It was determined that the application for an extension of time was not made within the requisite period and lacked justification for the delay. Consequently, the court concluded that the application for an extension of time was not competent and dismissed the application on that basis. Furthermore, the court ruled that the initial application for judicial review was also incompetent, as it was filed beyond the statutory time limit. The applicant was ordered to pay the costs of the proceedings to the Minister for Immigration.

Orders

Orders of the court

The application for an extension of time made on 31 December 2010 pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.

The application made to the Court on 31 December 2010 is dismissed as not competent.

The applicant pay the first respondent’s costs set in the amount of $5,000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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