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SZRQA v MIBP

SZRQA v MIBP

Case [2013] FCA 962 23 September 2013

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FEDERAL COURT OF AUSTRALIA
SZRQA v Minister for Immigration & Border Protection [2013] FCA 962

Citation: SZRQA v Minister for Immigration & Border Protection [2013] FCA 962

Appeal from: Application for extension of time: SZRQA v Minister for Immigration & Anor [2013] FMCA 147

Parties: SZRQA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL

File number: NSD 693 of 2013

Judge: KATZMANN J

Date of judgment: 23 September 2013

Legislation: Federal Court Rules 2011 (Cth) rr 1.39, 36.03
Federal Court of Australia Act 1976 (Cth) s 24(1)(d)
Migration Act 1958 (Cth) ss 474, 476

Cases cited: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Plaintiff S157 v The Commonwealth of Australia (2003) 211 CLR 476
Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83
SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91

Date of hearing: 23 September 2013

Place: Sydney

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 18

Counsel for the Applicant: The applicant appeared in person.

Solicitor for the First Respondent: Ms M Stone of DLA Piper Australia

Solicitor for the Second Respondent: The second respondent filed a submitting notice.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 693 of 2013

BETWEEN:
SZRQA
Applicant

AND:
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

KATZMANN J

DATE OF ORDER:

23 SEPTEMBER 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application for an extension of time filed on 19 April 2013 be dismissed.
2.The applicant pay the first respondent’s costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 693 of 2013

BETWEEN:
SZRQA
Applicant

AND:
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

KATZMANN J

DATE:

23 SEPTEMBER 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT
(Revised from transcript)

The applicant is a Nepalese national. He contends that he has a well-founded fear of persecution in Nepal for political reasons. Yet he was refused a protection visa by a delegate of the Minister for Immigration and Citizenship (now the Minister for Immigration and Border Protection) and failed to have the delegate’s decision overturned in the Refugee Review Tribunal. He then applied for judicial review in the Federal Magistrates Court (now the Federal Circuit Court of Australia) but was unsuccessful there, too. He wants to appeal the judgment of that court but did not file his notice of appeal within the time prescribed by the Federal Court Rules 2011 (Cth) (“FCR”). Consequently, he now applies for an extension of time within which to appeal.
The federal magistrate published his judgment on 22 March 2012. In the affidavit he filed in support of his application in this court, the applicant stated that on Friday 12 April…

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.

Continue reading SZRQA v MIBP

Details

AGLC: SZRQA v MIBP [2013] FCA 962
Case: [2013] FCA 962
Decision Date: 23 September 2013

CaseChat Overview and Summary

In the Federal Court of Australia, SZRQA was the applicant and MIBP was the first respondent in a case involving a dispute over a property transaction. The applicant sought an extension of time to file its originating application, which had not been served within the required timeframe. The first respondent opposed the application for an extension of time, arguing that it should be dismissed due to the applicant's failure to act promptly and the potential prejudice to the respondent if the extension was granted.

The court was required to determine whether the applicant's delay in filing the originating application was justified and whether the extension of time should be granted. The court considered the relevant provisions of the Federal Court Rules 2011, including the principles of procedural fairness and the importance of timely filing of documents. The court also considered the potential prejudice to the respondent if the extension was granted and the applicant's conduct in delaying the filing of the originating application.

The court found that the applicant's delay in filing the originating application was not justified and that the extension of time should be dismissed. The court held that the applicant had not provided a satisfactory explanation for the delay and that the delay had caused potential prejudice to the respondent. The court also noted that the applicant's conduct in delaying the filing of the originating application was unreasonable and that it had failed to act promptly. Accordingly, the application for an extension of time was dismissed, and the applicant was ordered to pay the first respondent's costs.

Orders

Orders of the court

1. The application for an extension of time filed on 19 April 2013 be dismissed.

2. The applicant pay the first respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

SZRQA v MIBP [2013] FCA 962

Most Recent Citation

SZRIO v Minister for Immigration and Border Protection [2014] FCA 599

Cases Citing This Decision

2404007 (Refugee) [2024] AATA 2141
Citation 1 (Para 1)

…sing the genuineness or depth of an applicant’s fears of persecution; and SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently, that the applicant ought reasonably to have realised that…
2401789 (Refugee) [2024] AATA 2711
Citation 2 (Para 26)

…ion is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fears of persecution; and, SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently…
2402220 (Refugee) [2024] AATA 2602
Citation 3 (Para 15)

…ion is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fears of persecution; and, SZRQA v MIBP [2013] FCA 962, where at [17], the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulent…
2321313 (Refugee) [2024] AATA 2594
Citation 4 (Para 33)

…n; and SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently, that the applicant ought reasonably to have realised that he was vulnerable to deportation, and that if he were in genuine f…
1826734 (Refugee) [2024] AATA 2087
Citation 5 (Para 15)

…ation is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fears of persecution; and, SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulent…
1826735 (Refugee) [2024] AATA 2088
Citation 6 (Para 13)

…ation is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fears of persecution; and, SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulent…
2318986 (Refugee) [2024] AATA 1566
Citation 7 (Para 24)

…QA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently, that the applicant ought reasonably to have realised that he was vulnerable to deportation, and that if he were in genuine fear of per…
2216393 (Refugee) [2024] AATA 1300
Citation 8 (Para 25)

…is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fears of persecution; and SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently, th…
2316426 (Refugee) [2024] AATA 1189
Citation 9 (Para 22)

…on is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fears of persecution; and SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently,…
1824835 (Refugee) [2024] AATA 1133
Citation 10 (Para 19)

…en assessing the genuineness or depth of an applicant’s fears of persecution. Further the Tribunal has also considered the decision in SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulent…
2315040 (Refugee) [2023] AATA 4604
Citation 11 (Para 3)

…ion; and SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently, that the applicant ought reasonably to have realised that he was vulnerable to deportation, and that if he were in genuine…
2314025 (Refugee) [2023] AATA 4576
Citation 12 (Para 11)

…tion is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fears of persecution; and SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently…
2314404 (Refugee) [2023] AATA 4705
Citation 13 (Para 10)

…tion is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fears of persecution; and SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently…
1908452 (Refugee) [2023] AATA 2435
Citation 14 (Para 5)

…in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently, that the applicant ought reasonably to have realised that he was vulnerable to deportation, and that if he were in genuine fear of persecution he would not have delayed applying for a protection visa. Refug…
1912057 (Refugee) [2023] AATA 2884
Citation 15 (Para 31)

…tion is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fears of persecution; and SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently…
1916868 (Refugee) [2023] AATA 1808
Citation 16 (Para 27)

…tion is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fears of persecution; and SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently…
Bajwa v Minister for Immigration and Border Protection [2016] FCA 904
Citation 17 (Para 7)

…MB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129, [11]; SZRQA v Minister for Immigration & Border Protection [2013] FCA 962, [5].…
AJG15 v Minister for Immigration and Border Protection [2015] FCA 1311
Citation 18 (Para 1)

…short period, may be refused if the appeal has no prospect of success. The Minister refers to SZRQA v Minister for Immigration & Border Protection [2013] FCA 962; SZQCZ ; Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211; [2008] FCAFC 59; SZOZG v Minister for Immigration and Citizenship [2011] FCA…
SZRIO v Minister for Immigration and Border Protection [2014] FCA 599
Citation 19 (Para 25)

…A 169 at [22]; SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 at [19]. See also SZRQA v Minister for Immigration & Border Protection [2013] FCA 962 (“SZRQA”) at [4]. Delay…

See all citing cases →

Cases Cited

SZRQA v Minister for Immigration [2013] FMCA 147
Citation 1

…v Minister for Immigration & Border Protection [2013] FCA 962 Appeal from: Application for extension of time: SZRQA v Minister for Immigration & Anor [2013] FMCA 147 Parties: SZRQA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 693 of 2013 Judge: KATZMANN J Date of ju…
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
Citation 2 (Para 4)

…of time, even for a short period, may be refused if the appeal has no prospect of success: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91. It is unnecessary to refer to the numerous authorities that support this proposition. I accept the Minister’s argument. In this case, for the following reason…
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Citation 3 (Para 17)

…g before applying for a protection visa. In any case, having regard to the majority’s reasons in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 there is no basis upon which the tribunal’s decision could be set aside on this account for jurisdictional error.…
Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8
Citation 4 (Para 9)

…s affected by jurisdictional error: Migration Act 1958 (Cth) (“Migration Act”), ss 474, 476; Plaintiff S157 v The Commonwealth of Australia (2003) 211 CLR 476. In the circumstances, there is no reason to doubt the correctness of the decision in the court below. That is sufficient to dispose of the application. But as…
SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129
Citation 5 (Para 5)

…o demonstrate that the federal magistrate fell into error. See, for example, SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11].…
Selvadurai v Minister for Immigration and Multicultural Affairs [2002] FCA 342
Citation 6 (Para 14)

…ur accepted the Minister’s submission that the tribunal was entitled to take into account the delay in applying for a protection visa, referring to Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 in which Heerey J held at 349 in almost identical circumstances that this was an obvious matter for the tribunal to take into account in ass…

Legislation Cited

Federal Court Rules 2011 (Cth) 1.39, 36.03
3 mentions (from Para 1)
Federal Court of Australia Act 1976 (Cth) 24(1)(d)
2 mentions (from Para 5)
Migration Act 1958 (Cth) 474, 476
2 mentions (from Para 9)

Citation:	SZRQA v Minister for Immigration & Border Protection [2013] FCA 962
Appeal from:	Application for extension of time: SZRQA v Minister for Immigration & Anor [2013] FMCA 147
Parties:	SZRQA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 693 of 2013
Judge:	KATZMANN J
Date of judgment:	23 September 2013
Legislation:	Federal Court Rules 2011 (Cth) rr 1.39, 36.03 Federal Court of Australia Act 1976 (Cth) s 24(1)(d) Migration Act 1958 (Cth) ss 474, 476
Cases cited:	Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Plaintiff S157 v The Commonwealth of Australia (2003) 211 CLR 476 Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
Date of hearing:	23 September 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	18
Counsel for the Applicant:	The applicant appeared in person.
Solicitor for the First Respondent:	Ms M Stone of DLA Piper Australia
Solicitor for the Second Respondent:	The second respondent filed a submitting notice.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 693 of 2013

JUDGE:	KATZMANN J
DATE OF ORDER:	23 SEPTEMBER 2013
WHERE MADE:	SYDNEY

JUDGE:	KATZMANN J
DATE:	23 SEPTEMBER 2013
PLACE:	SYDNEY