SZQVV v Minister for Immigration and Citizenship

[2013] HCASL 89

SZQVV

v

MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

[2013] HCASL 89
S18/2013

1. The applicant is a citizen of Bangladesh.  On 21 March 2011, the applicant applied for a Protection (Class XA) visa which was refused by a delegate of the first respondent on 27 May 2011.

2. On 27 October 2011, the Refugee Review Tribunal ("the Tribunal") decided that it did not have jurisdiction to review the delegate's decision because the application for review was made outside the time limit prescribed by s 412 of the Migration Act 1958 (Cth). The Tribunal received the application for review on 9 September 2011. On 15 September 2011, the Tribunal wrote to the applicant inviting submissions. The Tribunal received written submissions from the applicant on 6 October 2011. The applicant claimed that he had given his application for review to another person who had assured him that the application had been lodged. The Tribunal considered the applicant's submissions but nonetheless concluded that it did not have the discretion to accept a late application.

3. On 29 February 2012, the Federal Magistrates Court of Australia (Smith FM) dismissed an application for judicial review of the Tribunal's decision.  Smith FM held that the time limit for making applications to the Tribunal is strict.  In any event, Smith FM held that, assuming the applicant's version of events could be verified, there would be no grounds for granting the relief sought. 

4. On 17 August 2012, the Federal Court of Australia (Greenwood J) granted the applicant leave to appeal from the judgment of Smith FM to afford the applicant the opportunity to establish that the late lodgement of his application was due to the "fraud" of the person to whom his application for review had been given.  On 21 December 2012, the Federal Court of Australia (Flick J) dismissed the applicant's appeal.  Flick J considered the reasons given by the applicant for his late application to the Tribunal and concluded that any argument based upon the alleged "fraud" of the other person had no factual foundation.

5. The applicant now seeks an extension of time in which to file his application for special leave to appeal.  That extension should be granted, but the application for special leave dismissed.  The applicant's written case and draft notice of appeal do not address the jurisdictional question or identify any error in the decision of Flick J.  There is no reason to doubt the correctness of that decision.

6. Pursuant to rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. 

S.M. Kiefel
5 June 2013 P.A. Keane