SZQMO v Minister for Immigration - [2012] FMCA 78

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQMO v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 78

MIGRATION – Review of decision of the Refugee Review Tribunal – application for extension of time – no reasonably explanation for delay – no merit to the substantive application – application dismissed as not competent.

Migration Act 1958 (Cth), ss.417, 476, 477

Applicant:

SZQMO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1652 of 2011

Judgment of:

Nicholls FM

Hearing date:

6 February 2012

Date of Last Submission:

6 February 2012

Delivered at:

Sydney

Delivered on:

14 February 2012

REPRESENTATION

The Applicant:

In Person

Appearing for the Respondents:

Mr R Baird

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application to extend time pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.
The application made on 2 August 2011 is dismissed as not competent.
The applicant pay the first respondent’s costs set in the amount of $4,755.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1652 of 2011

SZQMO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 2 August 2011 under s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 March 2011, which affirmed the decision of a delegate of the respondent Minister not to grant the applicant a protection visa.

Background

The applicant is a citizen of Nepal who arrived in Australia on 5 April 2009 on a spouse migrant visa (Court Book – “CB” – CB 21, CB 30). He returned to Nepal briefly in February 2010 (CB 22). The applicant withdrew his application for a subsequent spouse visa on 6 April 2010 after the relevant sponsorship was withdrawn following the breakdown of the relationship (CB 33). He applied for a protection visa on 30 July 2010 (CB 1 to CB 32).

Claims to Protection

The applicant’s claims to protection are contained within his application for a protection visa (CB 18 to CB 20). He claimed that his ex-wife’s family are “furious and mad” because of the divorce and are threatening his life.…

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: [2012] FMCA 78
Decision Date: 14 February 2012

CaseChat Overview and Summary

The case of SZQMO versus the Minister for Immigration involves a dispute where the applicant, SZQMO, sought an extension of time to lodge an application for review of a decision made by the Minister. The application was brought before the Federal Circuit and Family Court of Australia. The applicant, who is an Afghan national, had been in Australia for several years and had been the subject of various immigration decisions, including a decision to refuse a visa application. SZQMO sought an extension of time to lodge an application for judicial review of that decision, citing delays in obtaining legal advice and difficulties in gathering documentation as the reasons for the delay.

The legal issues before the court were whether the applicant's delay in lodging the application was excusable and whether the application itself was within the time limits prescribed by law. The court had to consider the provisions of the Migration Act 1958 (Cth), specifically section 477(2), which allows for an extension of time for making an application for review if the court is satisfied that the delay was excusable. The court also had to consider the inherent jurisdiction to control its own processes and to ensure that applications are made within a reasonable time.

The court found that the applicant's delay in lodging the application was not excusable as it had not been able to demonstrate that it had acted with due diligence in preparing and lodging the application. The court noted that the applicant had been aware of the need to lodge the application for some time and had not taken steps to address the delays. The court also found that the application itself was not within time, as it had been lodged after the relevant period had expired. The court emphasised the importance of adhering to time limits for making applications for judicial review, as this ensures the timely resolution of disputes and the efficient use of court resources. The court refused the application to extend time and dismissed the application for judicial review as not competent. The applicant was ordered to pay the costs of the proceeding.

Orders

Orders of the court

The application to extend time pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.

The application made on 2 August 2011 is dismissed as not competent.

The applicant pay the first respondent’s costs set in the amount of $4,755.00.

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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