SZUPE v Minister for Immigration - [2018] FCCA 698

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUPE v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 698

Catchwords:
MIGRATION – Substantive application seeking review of former Refugee Review Tribunal decision – sole ground of review seeks impermissible merits review – s.438 certificate.

PRACTICE & PROCEDURE – Application for an extension of time within which to make a competent application to the Court – factors going to an extension of time considered – no satisfactory explanation for the delay – whether there are reasonable prospects of success – no reasonable prospects of success – application refused.

Legislation:

Evidence Act 1995 (Cth), s.55

Migration Act 1958 (Cth), ss.36, 375A, 424AA, 438, 468E, 468I, 476, 477

Cases cited:

Applicant:

SZUPE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1761 of 2014

Judgment of:

Judge Nicholls

Hearing date:

26 October 2016

Date of Last Submission:

10 August 2017

Delivered at:

Sydney

Delivered on:

28 March 2018

REPRESENTATION

Applicant:

In person

Solicitors for 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: [2018] FCCA 698
Decision Date: 28 March 2018

CaseChat Overview and Summary

The applicant, SZUPE, sought judicial review of a decision made by the former Refugee Review Tribunal. The Minister for Immigration was the respondent. The sole ground of review advanced by the applicant was an impermissible merits review of the Tribunal's decision, which the Court noted was not a proper basis for judicial review.

The Court was required to determine whether to grant an extension of time for the applicant to make a competent application to the Court. In considering this application, the Court had to assess whether there was a satisfactory explanation for the delay in filing the application and whether the applicant had reasonable prospects of success in the substantive review.

Justice Nicholls found that there was no satisfactory explanation for the significant delay in the applicant filing their application. Furthermore, the Court concluded that the applicant had no reasonable prospects of success in the substantive review, given that the sole ground of review sought to re-examine the merits of the Tribunal's decision rather than identify an error of law. Accordingly, the application for an extension of time was refused.

Orders