SZVXP v Minister for Immigration

[2016] FCCA 1287

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVXP v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1287

Catchwords:
MIGRATION – Application to dismiss application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) (Act) on the ground that the application to extend time is incompetent because of s.486D of the Act – whether in any event it would have been in the interests of the administration of justice to grant an extension of time – application for extension of time dismissed as being incompetent.

Legislation:

Migration Act 1958 (Cth), ss.476, 477(1), 477(2), 477(2)(b), 486D, 486D(1)

Federal Circuit Court Rules2001 (Cth), rr.13.11, 13.03C(1)(c)

Cases cited:

BZAGD v Minister for Immigration and Border Protection [2015] FCCA 3471

MZXPI v Minister for Immigration & Anor [2008] FMCA 1296
SZIHB v Minister for Immigration [2006] FMCA 472
SZKUT v Minister for Immigration & Anor [2008] FMCA 241
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

Applicant: SZVXP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3632 of 2014

Judgment of: Judge Manousaridis

Hearing date: 20 May 2016

Delivered at: Sydney

Delivered on: 20 May 2016

REPRESENTATION

No appearance on behalf of or by the applicant

Solicitors for the Respondents: Mr L Leerdam of DLA Piper Australia

ORDERS

1. The first respondent have leave to rely on the amended response filed on 13 May 2016.

2. The application is dismissed as being incompetent by virtue of s.486D of the Migration Act 1958 (Cth).

3. The applicant pay the first respondent’s costs set in the amount of $6,825.

4. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

5. The first respondent is to arrange to have these orders entered and the first respondent is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of r.16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3632 of 2014

SZVXP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

1. Before the Court is an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act. The remedy the applicant seeks relates to a decision of the second respondent (Tribunal) made on 5 February 2014 affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection visa. The order is required to be made under s.477(2) because the application was filed on 24 December 2014, over nine months after the day on which the applicant was required to file the application.

2. Today’s hearing was set down when the matter came before me on a first court date on 4 March 2015.  The matter was called, but there was no appearance by the applicant.  There is on the Court file short minutes of order which bear a signature above the typed words “signed by the applicant”.  I do not recall on that day the matter, but I am satisfied from the appearance of that signature that the applicant appeared on 4 March 2015 and that, by his signing his name on the short minutes of order, he was aware that the matter was set down today for hearing on the extension of time and, if such an extension were granted, the final hearing. I also record that, at the time when I regularly sat on first court dates, it was my invariable practice to expressly inform the parties, in particular applicants, of the date and time on which a matter has been set down for hearing.

3. Unusually, perhaps, the Minister does not apply for an order that the matter be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) (FCC Rules), being the rule which confers power on the Court to dismiss a proceeding if an applicant does not appear before the Court. Rather, the Minister moves for an order that the proceeding be dismissed on the basis of s.486D(1) of the Act, which provides as follows:

   A person must not commence a proceeding in the Federal Circuit Court in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.

4. The evidence before me reveals that the applicant filed an application in this Court on 4 March 2014 which was assigned proceeding number SYG520/2014 in relation to the decision of the Tribunal made on 5 February 2014. The applicant filed a notice of discontinuance of those proceedings on 6 June 2014. I am satisfied, therefore, that s.486D applies to the application which is currently before the Court.

5. Turning to s.486D(1) of the Act, it has been held by a number of judges of this Court that a proceeding brought in contravention of that subsection is incompetent. The relevant authorities are SZKUT v Minister for Immigration & Anor [2008] FMCA 241 at [12]-[15], MZXPI v Minister for Immigration & Anor [2008] FMCA 1296, SZIHB v Minister for Immigration [2006] FMCA 472, and BZAGD v Minister for Immigration and Border Protection [2015] FCCA 3471.[1]  There is no reason why I should not follow these decisions and I propose to do so in the circumstances of this case. The question, therefore, is whether the applicant, when commencing the proceedings, disclosed to the Court the fact that he had commenced proceedings number SYG520/2014.  That question, at least in the first instance, is to be determined by reading the application that has been filed. 

   [1] After I delivered these reasons, Mr Leerdam, the Minister’s lawyer, informed me that that an appeal brought against the orders made in BGAGD had been dismissed by Rangiah J on 19 May 2016.

6. The prescribed form of application which the applicant used to commence these proceedings has a section which is on page 13 of the application commencing with the bold words “Other Court Proceedings”. The form then has this instruction: “complete if the applicant has made a previous application or applications to a court to review that decision – see s.486D of the Migration Act 1958”.  The form then requires details to be included such as the person or persons who made each previous application, the court or courts to which each application was made, the commencement date of each previous application or applications, the file number of each application, and the outcome of each application.

7. This part of the application by which the applicant commenced these proceedings is blank.  On the basis of the application itself, therefore, I am satisfied the applicant did not disclose to the Court the proceedings he had commenced in March 2014.  There is nothing on the Court file which indicates that, when the applicant commenced the proceedings, he had disclosed the previous application he had brought in relation to the Tribunal’s decision which is the subject of challenge in the current proceedings.

8. I am, therefore, satisfied that s.486D(1) of the Act applies to the circumstances of the case and, because the applicant has not disclosed the previous proceeding in this Court, the application is incompetent, and the application must be dismissed.

9. Now, before I make formal orders to give effect to that conclusion, I will say something briefly about the application on the assumption that the proceedings were competent. The Court does have power under s.477(2) of the Act to make an order extending the 35 day period prescribed by s. 477(1) to commence an application in relation to the decision of the Tribunal. Such applications must be made in writing and they must specify why the applicant considers it is necessary in the interest of the administration of justice.

10. The Court will make an order, but only if it satisfied it is necessary in the interests of the administration of justice to make such order. As was said by Foster J in SZRIQ v Federal Magistrates Court of Australia:[2]

    [2] SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [47]- [48]

    The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

    (a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;

    (b)  Whether there is any prejudice to the Minister;

    (c)  Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

11. His Honour continued that the factors to which his Honour referred, although commonly deployed by judges when considering extensions of time are not prescribed under s.477(2)(b) of the Act, cannot be said to exhaust all potentially relevant factors. His Honour said, however, that they are simply sensible guidelines developed by the courts which have utility in most cases. In most cases, the most significant factor will be whether there is any merit in the claim the applicant wishes to make if an extension of time were granted.

12. If the matter were competent and if I were required to consider whether I should make an order, I would not have been satisfied it is in the interest of the administration of justice to make such order. First of all, the reasons given for the delay are almost non-existent.  The applicant, in the application under the heading “Grounds of Application for Extension of Time”, simply stated “self-representation, wrong information, others”.  Apart from the absence of any reasons to explain the delay, there is also the fact that the applicant had previously applied within time for relief in relation to the Tribunal’s decision, but withdrew that application by filing a notice of discontinuance.  Also relevant is the extent of delay, which is significant.

13. When one turns to the proposed grounds of application, it is apparent from those grounds that the applicant appears simply to repeat the claims he put forward before the Tribunal in support of his application for a Protection visa which were rejected.  In other words, what the applicant on the face of his application seeks is a full merits review of the decision of the Tribunal.  I am, therefore, satisfied that the application does not disclose any reasonable or any, indeed, arguable case that the Tribunal made its decision as a result of any jurisdictional error.

14. At any rate, the basis of the order that I propose to make, namely, dismissal is, as I have said, s.486D of the Act. I note that on 4 March 2015 I made an order pursuant to r.13.11 of the FCC Rules that the applicant in relation to the Tribunal not be permitted to commence further proceedings without the leave of the court. That order still stands.

15. In addition to making an order dismissing the proceedings, I propose to order costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  30 May 2016