SZRXU v Minister for Immigration - [2012] FMCA 1173

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRXU v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1173

MIGRATION – Review of decision by Refugee Review Tribunal – whether time should be extended to applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time – application for extension of time refused.

Migration Act 1958 (Cth), ss. 66; 477
Migration Regulations 1994 (Cth), reg 216

SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27 .
M211 of 2003 v Refugee Review Tribunaland Another (2004) 212 ALR 520; Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198

Applicant:

SZRXU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2239 of 2012

Judgment of:

Emmett FM

Hearing date:

5 December 2012

Date of Last Submission:

5 December 2012

Delivered at:

Sydney

Delivered on:

5 December 2012

REPRESENTATION

Applicant appeared in person with a Mandarin interpreter

Solicitors for the Respondent:

Ms Warner-Knight (AGS)

ORDERS

The applicant’s application that time be extended to seek judicial review of a decision of the Refugee Review Tribunal, dated 3 October 2007, is refused.
The applicant pay the costs of the first respondent fixed in the amount of $1,296.
No order be entered until my reasons for judgment are settled.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2239 of 2012

SZRXU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is the applicant’s application for an extension of time, pursuant to section 477 of the Migration Act. The application is brought pursuant to section 477, which provides that relevantly the Court may extend the 35 day period from the date of the Refugee Review Tribunal decision if it is in the interests of justice to do so. Section 477 is as follows:
“Time limits on applications to the Federal Magistrates Court
(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
‘date of the migration decision’ means:
(a) in the case of a migration decision made under subsection 43(1)

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.

Keep reading for free

Create a free CaseChat account to read SZRXU v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] FMCA 1173
Decision Date: 5 December 2012

CaseChat Overview and Summary

The applicant in this case, SZRXU, sought an extension of time to seek judicial review of a decision made by the Refugee Review Tribunal on 3 October 2007. The first respondent, the Minister for Immigration, opposed the application on the basis that the applicant had failed to satisfy the Court that there was a sufficient reason for the delay in seeking judicial review. The matter was heard in the Federal Court of Australia.

The central legal issue the Court had to address was whether the applicant had demonstrated a sufficient reason for the delay in seeking judicial review. The Court had to consider the principles governing the extension of time in judicial review applications, and whether the applicant had provided a satisfactory explanation for the delay. The Court also had to consider the relevant statutory provisions and case law in determining the appropriate course of action.

In delivering the judgment, the Court found that the applicant had not provided a sufficient explanation for the delay in seeking judicial review. The Court noted that the applicant had not shown any exceptional circumstances that warranted an extension of time. The Court held that the application for an extension of time was an application in the nature of an application for leave to appeal, and that the applicant had not satisfied the Court that there was a sufficient reason for the delay. The Court also found that the applicant had not demonstrated that there was a prospect of success on the merits of the application for judicial review. Accordingly, the Court dismissed the application for an extension of time. The Court further ordered that the applicant pay the costs of the first respondent.

Orders

Orders of the court

The applicant’s application that time be extended to seek judicial review of a decision of the Refugee Review Tribunal, dated 3 October 2007, is refused.

The applicant pay the costs of the first respondent fixed in the amount of $1,296.

No order be entered until my reasons for judgment are settled.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.