SZVEV v Minister for Immigration - [2015] FCCA 2724

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVEV v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2724

Catchwords:
MIGRATION – Review of former Refugee Review Tribunal decision that it lacked jurisdiction – review application lodged out of time – no jurisdictional error.

PRACTICE AND PROCEDURE – Observations on the inability of the Tribunal to extend time for a review application.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.66, 412, 494B, 494C
Migration Regulations 1994 (Cth)

Cheng v Minister for Immigration & Anor [2011] FMCA 461
Liu v Minister for Immigration (2010) 240 FLR 202
Murphy v Minister for Immigration (2004) 135 FCR 550

Rana v Minister for Immigration [2014] FCCA 1488

SZULH v Minister for Immigration [2015] FCA 835
SZULH v Minister for Immigration & Anor [2015] FCCA 909
SZUQF v Minister for Immigration & Anor [2015] FCCA 2042

Applicant:

SZVEV

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2736 of 2014

Judgment of:

Judge Driver

Hearing date:

6 October 2015

Delivered at:

Sydney

Delivered on:

6 October 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr J Selby of Clayton Utz

INTERLOCUTORY ORDERS

The name of the second respondent is amended to the Administrative Appeals Tribunal.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2736 of 2014

SZVEV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is yet another case involving an arid argument arising from the inability of the former Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal) to extend time for review applications. I have, on numerous occasions previously, drawn attention to the difficulties that arise from that inability[1]. Nevertheless, Parliament has not seen fit to amend the Migration Act 1958 (Cth) (Migration Act) to confer on the Tribunal any jurisdiction to extend time.
[1] See for example Rana v Minister for Immigration [2014] FCCA 1488.
The background to this matter is set out in the Minister’s outline of legal submissions filed on 1 October 2015. The applicant is a citizen of India. He lodged an application for protection on 17 December 2013[2]. The applicant claimed that he had been targeted by Sikhs as a follower of the Dera Sacha Sauda religion[3]. On 16 June 2014, the Minister’s delegate refused the grant of the protection visa to the applicant. This was so because the delegate found that the applicant was not a credible witness[4]. That same day, the applicant was notified of the delegate's decision.
[2] Court Book (CB) 1.
[3] CB 7-10, 45.
[4] CB 47-49.
The delegate’s decision was dispatched by registered post to the applicant (Notification letter) [5]. On 8 July 2014, the Notification letter…

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: [2015] FCCA 2724
Decision Date: 6 October 2015

CaseChat Overview and Summary

SZVEV (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) concerning the applicant's immigration status. The core of the dispute revolved around the Refugee Review Tribunal's (RRT) prior determination that it lacked jurisdiction to consider the applicant's review application, which had been lodged outside the prescribed time limits. The matter came before Driver J of the Federal Court of Australia.

The primary legal issue before the Court was whether the RRT had committed a jurisdictional error by refusing to extend the time for the applicant to lodge their review application. This required the Court to consider the scope of the RRT's powers regarding time extensions and whether the applicant had established any grounds for such an extension that the RRT had wrongly disregarded.

Driver J reasoned that the Migration Act 1958 (Cth) and its associated regulations clearly stipulated the timeframes for lodging review applications with the RRT. The legislation did not confer upon the RRT a general discretion to extend these time limits. Consequently, the RRT's finding that it lacked jurisdiction due to the out-of-time lodgement was correct. The applicant had not demonstrated any basis upon which the RRT was empowered to grant an extension, nor had the RRT otherwise acted outside its legal authority.

The application for judicial review was dismissed.

Orders