SZTSU v Minister for Immigration - [2014] FCCA 1697

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTSU v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1697

Catchwords:

MIGRATION – Review of decision by Refugee Review Tribunal (RRT) – application to extend time – no merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.05(2)(c)

Migration Act 1958 (Cth), ss.36(2A), 424A, 424A(3)(a) , 477(1), 477(2)

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
SZMFJ v Minister for Immigration & Anor [2009] FMCA 771

SZQGO v Minister for Immigration and Citizenship [2012] FCA 177

Applicant:

SZTSU

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3273 of 2013

Judgment of:

Judge Manousaridis

Hearing date:

17 July 2014

Delivered at:

Sydney

Delivered on:

31 July 2014

REPRESENTATION

Applicant in person.

Solicitors for the Respondents:

Ms B Griffin

Australian Government Solicitor

ORDERS

The application pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act is dismissed.
The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3273 of 2013

SZTSU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is an application under s.477(2) of the Migration Act 1958 (Cth) (Act) for an order extending the 35 day period prescribed by s.477(1) of the Act for the making of an application to this Court for judicial review of a decision of the second respondent (Tribunal). By that decision, the Tribunal affirmed the decision of a delegate of the first respondent (Minister) refusing to grant the applicant a protection visa.
The application is necessary because the application for judicial review was filed in this Court on 31 December 2013 but the decision of the Tribunal of which the applicant seeks judicial review was made on 25 March 2013, some 245 days before the application was filed.

The hearing

At the commencement of the hearing the applicant, who is not legally represented, applied for an adjournment. After hearing the application for an adjournment, I decided against granting an adjournment, and delivered separate reasons for my refusing to grant the adjournment.
When I asked the applicant whether he wished to make any submissions in support of his application for an extension of time, the applicant asked for a further adjournment. He said he wanted time to consult a lawyer. He said he had spoken to a lawyer but he would not take his case. I did not allow the adjournment. The matter was set down for hearing on 7 March 2014. In my opinion, the applicant had sufficient time to obtain legal representation.
I then invited the applicant to make submissions in support of his application. The only submission he made was to repeat the substance of ground 1 of his application for review, which…

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 SZTSU v Minister for Immigration

Details

AGLC: SZTSU v Minister for Immigration [2014] FCCA 1697
Case: [2014] FCCA 1697
Decision Date: 31 July 2014

CaseChat Overview and Summary

The applicant, SZTSU, sought judicial review of a decision by the Refugee Review Tribunal (RRT) to dismiss their application for review. The primary dispute concerned the RRT's refusal to grant an extension of time for the applicant to lodge their review application. The matter came before Judge Manousaridis in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the RRT had erred in law by refusing to grant the applicant an extension of time to lodge their application for review. This required the Court to consider the criteria and discretion vested in the RRT when assessing applications for extensions of time, particularly in circumstances where the substantive grounds of the application for review were considered to have no merit.

Judge Manousaridis reasoned that the RRT had correctly applied the relevant legislative provisions and principles in determining the application for an extension of time. The Tribunal was entitled to consider the lack of merit in the substantive grounds of the application when exercising its discretion. As the applicant had not demonstrated any error of law in the RRT's decision-making process, the application for judicial review was dismissed.

Orders