SZRDC v Minister for Immigration - [2012] FMCA 676

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRDC v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 676

MIGRATION – RRT decision – Afghani refugee from Pakistan – principal refugee claims disbelieved by Tribunal – secondary claim of risk from perception as ‘Western’ if returned to Afghanistan – whether addressed by Tribunal – whether reasoning arbitrary, illogical and irrational – jurisdictional error not established – six months’ delay in applying for judicial review – election to seek Ministerial intervention – extension of time refused – application dismissed as incompetent.

Migration Act 1958 (Cth), ss.48B, 417, 477(1), 477(2), 477(2)(b)

Applicant:

SZRDC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 250 of 2012

Judgment of:

Smith FM

Hearing date:

27 July 2012

Delivered at:

Sydney

Delivered on:

16 August 2012

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Success Lawyers

Counsel for the First Respondent:

Ms L Buchanan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application for extension of time is refused.
The principal application is dismissed as incompetent.
The applicant must pay the first respondent’s costs fixed in the amount of $6,471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 250 of 2012

SZRDC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant came to Australia on a student visa in April 2010. He applied for a protection visa on 12 November 2010, and this was refused by a delegate on 15 March 2011. The delegate’s decision was affirmed by the Tribunal on 5 July 2011. The applicant now seeks judicial review of the Tribunal’s decision, and orders which would give him a further hearing of his refugee claims. I would have power to give this relief only if jurisdictional error were shown in the Tribunal’s procedures or reasoning.
The applicant’s application to the Court was not lodged until 6 February 2012, which was nearly six months after the…

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 676
Decision Date: 16 August 2012

CaseChat Overview and Summary

In the Federal Court of Australia, the applicant, SZRDC, sought an extension of time to lodge their application for judicial review against the Minister for Immigration. The Minister was the respondent. The applicant argued that they had not received notice of the original decision until some time after it was made, and therefore, the statutory time limit for seeking judicial review should be extended. The court was required to decide whether the applicant's delay in bringing the application was justifiable and whether the court should grant an extension of time. The court held that the applicant had not shown any exceptional circumstances that would warrant an extension of time. The court found that the applicant had not taken reasonable steps to ascertain the outcome of the decision and had failed to provide a satisfactory explanation for the delay. The court dismissed the application for an extension of time and also dismissed the principal application for judicial review as incompetent. The applicant was ordered to pay the Minister's costs.

Orders

Orders of the court

The application for extension of time is refused.

The principal application is dismissed as incompetent.

The applicant must pay the first respondent’s costs fixed in the amount of $6,471.

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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