SZNOR v Minister for Immigration & Anor [2009] FMCA 639 (17 June 2009)

Last Updated: 14 July 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNOR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 639

MIGRATION – VISA – Protection (Class XA) visa – application for review of decision of the Refugee Review Tribunal affirming delegate’s decision to refuse protection visas to the applicants – application out of time – extension of time – application granted. WORDS & PHRASES – “the date of the migration decision”. PRACTICE & PROCEDURE – Applications for extension of time under Migration Act 1958 (Cth) s.477 – matters for consideration.

Migration Act 1958 (Cth), s.477

Lindon v The Commonwealth (No.2) [1996] HCA 14; (1996) 136 ALR 241; (1996) 70 ALJR 541

Applicant:

SZNOR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1118 of 2009

Judgment of:

Scarlett FM

Hearing date:

17 June 2009

Date of Last Submission:

17 June 2009

Delivered at:

Sydney

Delivered on:

17 June 2009

REPRESENTATION

Counsel for the Applicant:

Mr Kumar

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The time for making the Application for judicial review of the decision of the Refugee Review Tribunal dated 9 March 2009 is extended for a period of one month from 14 April 2009.
(2) The Applicant is to pay the First Respondent’s costs.
(3) The First Respondent is to file and serve a bundle of relevant documents (Green Book) by Friday 26 June 2009.
(4) The Applicant is to file and serve any amended application and any further affidavit material upon which he seeks to rely by Friday 3 July 2009.
(5) The Applicant is to file and serve a short written outline of submission by Thursday 9 July 2009.
(6) The First Respondent is file and serve a short written outline of submission by Tuesday 14 July 2009.
(7) The matter is adjourned for hearing on Thursday 16 July 2009 at 10:15am before Federal Magistrate Scarlett in Court 7B John Maddison Tower, 88 Goulburn Street Sydney.
(8) The First Respondent’s costs are reserved.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1118 of 2009

SZNOR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The applicant in this case applies for an order that the time for making his substantive application be extended under s.477 of the Migration Act. At this stage there is no relevant case law available on s.477 in its present form that either counsel for the applicant or the solicitor for the 1st respondent have been able to produce. This is hardly surprising as the amended section did not come into operation until 15 March 2009. What has happened in this case is that the Tribunal made a decision on 9 March 2009 which is the operative date for the purpose of these proceedings. I am indebted to Mr Kumar of counsel who appears for the applicant for his preparation of a chronology which states that the applicant received a copy of the Tribunal decision record on 11 March 2009. The applicant in his affidavit in support sets out his understanding of the law at the time. It is clear that he still had in his mind the provisions of s.477 in its earlier incarnation as he refers to 28 days after the date of the decision. Even so, it is clear that his understanding of the earlier section was misconceived.
2. The applicant says in his affidavit:
   • In the letter of notification it was not mentioned whether I have review rights or not. I understood that after payment of $1400 I can apply for a review to the Federal Magistrate Court and on 7 April 2009 I paid $1400 to the collector of public money. A letter of confirmation of payment came on 18 April 2009. From that day I counted 28 days. Because of these reasons I could not lodge application for review within 28 days after the date of the decision.
3. Even if that was the applicant's understanding of the law in its earlier form it is clear that that is just quite wrong. The earlier s.477 did not provide that time commenced from the date of confirmation of the payment of the Tribunal fee of $1400. The earlier section referred to the date of notification. Whilst the earlier section was still in force on 11 March 2009 when the applicant received his copy of the decision record, it ceased to be in force on 15 March 2009 when the current section came into operation. As the time limit provided in fact by the earlier section of the current section would have allowed the applicant to lodge his application to this Court before or after 15 March, in my view the current s.477 is the law that was in force at the relevant time, because the relevant time was the date by which the applicant should have lodged his application to this Court and that date was the date 35 days after the date of the migration decision.
4. Section 477 in its present form says in subsection (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.
5. Subsection (5) makes it clear when that time starts to run:
   • To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
6. Subsection (3) is also helpful because it defines what the words “the date of the migration decision” mean. In subsection 477(3)(b) the law says:
   • (b) In the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal – the date of the written statement under subsection 368(1) or 430(1); ...
7. In this case the written statement or the decision record was dated 9 March. So it is quite clear that time started to run after 9 March.
8. The applicant had 35 days in which to file his application at the Court. By my calculations that 35 day period would have concluded on Monday 13 April. That day was a public holiday, being Easter Monday. I would be of the view that the last day for the applicant to file his application in those circumstances would therefore be the next working day, which would have been Tuesday 14 April. He was, however, out of time. His application and affidavit were not filed until 8 May 2009. Ms Dinihan, the solicitor who appears for the Minister refers to a period of time of approximately three and a half weeks. What then the applicant has to do is persuade the Court that it should by order extent that 35 day period as the Court considers appropriate.
9. Subsection (2) of s.477 sets out two requirements.
10. First, an application for the order must have been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order.
11. Second, the Court must be satisfied that it is necessary in the interests of the administration of justice to make the order.
12. The applicant sought the extension of time in his application and he accompanied that application with an affidavit in which he set out the circumstances.
13. Those circumstances, as I indicated, show that he completely misunderstood either the earlier section or the current section. In fact it is clear that he was not aware at all of the current section. I am not of a view that ignorance of the law is any excuse and in my view the Court must consider the situation and look at the application as to whether the applicant has offered a reasonable explanation for the delay.
14. There are a number of factors that in my view need to be considered. Not only should the Court look at the explanation for the delay, the Court must also look at the extent of the delay. The law as far as s.477 is concerned does not set out any additional time limit unlike the earlier section. It leaves the matter entirely to the discretion of the Court. It would clearly be appropriate for the Court to consider the extent of the delay in filing the application. In my view an applicant who had delayed for a period of years would have little hope of persuading a Court that it was in the interests of the administration of justice to make such an order. The general principles relating to delay in my view still apply in this case.
15. The interests of the administration of justice involve a consideration of both sides of the litigation. The Court should look at the effect on the applicant if the application is not granted and the Court should look at the effect on the respondent or the detriment to be suffered by the respondent if the application is granted. As has been submitted for the first respondent the Court should look at the time, money and resources that need to be expended on defending an application which is out of time.
16. In my view the Court should also consider the nature of the substantive application. If the applicant could not show an arguable case then permitting the application to be made out of time would be futile. It would indeed be a waste of resources and indeed a waste of the Court's time. To that extent I consider the grounds set out in the applicant's application. There are three grounds:
    • 1. The applicant submits the Tribunal erred in making findings of well founded fear; i) the RRT erred in adopting an unduly harsh approach to the well founded fear.
    • 2. The applicant submits that the Tribunal has misconstrued the test, has failed to carry out the "real chance" test as required by the law. Particulars, the Tribunal did not accept any oral or written evidence with regard to the fear of persecution or harm.
    • 3) The Tribunal made the decision on the basis of the unreliable information. The Tribunal should have made an investigation before making the decision, though the Tribunal has power the Tribunal did not make it which amounts to denial of procedural fairness.
17. In my view the first ground and the third ground do not show an arguable case. It is submitted on behalf of the first respondent that the applicant has not displayed an arguable case at all. I am not prepared to go that far in making such a finding although the applicant's second ground does not on a reading of the Tribunal decision appear to be a particularly strong ground. However, as Kirby J said in Lindon v The Commonwealth (No.2)[1]:
    • Even a weak case deserves its time in Court.
18. The delay in this case is a relatively short delay, a matter of weeks, certainly less than a month. In my view little prejudice would be suffered by the 1st respondent in that the decision of the delegate was only made on 11 November 2008 and the decision of the Tribunal was only made on 9 March 2009. The departmental files and other material would still be available. They would not have been destroyed or put into long term storage at this stage and access to that material would be a relatively simple task. A Court book could be prepared in a fairly short period of time. True it is that the Minister has to go to the trouble and expense of defending the claim. That prejudice is one which in my view can be dealt with by the making of an order for costs.
19. The argument has also been made that the time of the Court must be considered. If the Court's time is spent in dealing with spurious applications with little or no chance of success then the delay for a genuine applicant with an arguable case would consistently increase. That is a point which I think should be considered but in the current circumstances where this Court is clearly on top of the inflow of applications and hearing dates can be made available in a relatively short period of time it is not in these circumstances a major consideration. The Court does have the time and resources available to hear the case if the applicant is allowed to get his application in. Indeed the Court could hear this matter within a month, so there is no delay of any substantial amount that needs to be considered.
20. In all of the circumstances allowing for the availability of information, the ability of the Court to hear the substantive application at relatively short notice, and the availability of costs orders to compensate the 1st respondent at least in part for the time and expense involved in dealing with another case, I am of a view that in these circumstances the Court should look favourably at extending the time. I am certainly not of the view that the substantive application in its present form indicates that the applicant has a strong case for judicial review. The reverse would appear to be true but, as I said earlier when referring to Lindon v The Commonwealth, even a weak case deserves its time in Court. How weak or how strong the applicant's case is will only be determined once this application is heard.
21. I propose in the circumstances to find that it is necessary in the interests of the administration of justice to make an order extending the 35 day period to allow this application to be made. I would stress that these applications will need to be dealt with on a case by case basis and no hard and fast rules can be gleaned from this particular decision but the relatively brief period of the delay in making the application and the relatively small prejudice to the first respondent would be two matters that weigh heavily in my consideration in granting this application.
22. I would make it clear however that the proceedings today have been brought about by the applicant's failure to comply with the time limits set out in subsection 477(1) of the Act. The proceedings have not been brought about by any delay or error on the part of the first respondent. The first respondent has been obliged to come to Court, however, to be heard on the application. Those circumstances appear to me to point quite clearly to the fact that there should be an order for costs in favour of the 1st respondent in respect of the costs of today's application and I propose to make such an order.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 7 July 2009

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[1] [1996] HCA 14; (1996) 136 ALR 251; (1996) 70 ALJR 541