SZOPK v Minister for Immigration & Anor [2010] FMCA 769 (6 October 2010)

Last Updated: 13 October 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOPK v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 769

MIGRATION – Refusal of an extension of time.

Migration Act 1958 (Cth), ss.476, 477 Migration Regulations 1994 (Cth)

Applicant:

SZOPK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1957 of 2010

Judgment of:

Driver FM

Hearing date:

6 October 2010

Delivered at:

Sydney

Delivered on:

6 October 2010

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr R White Sparke Helmore

INTERLOCUTORY ORDERS

(1) The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is refused.
(2) The application filed on 7 September 2010 is dismissed as incompetent.
(3) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,175 in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG1957 of 2010

SZOPK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application purportedly made under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”). The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 24 March 1998. Under transitional provisions relating to amendments to the Migration Act made in 2009, the decision of the Tribunal is taken to have been made on 15 March 2009. The application was not made within the time prescribed in s.477(1) of the Migration Act. The applicant therefore requires an extension of time under s.477(2) and he has sought one. That application is opposed by the Minister who seeks the summary dismissal of the substantive application.
2. The application for an extension of time is supported by the applicant’s affidavit made on 6 September 2010. The applicant was not cross-examined on that affidavit but he did expand upon it from the bar table. I have no reason to disbelieve what the applicant has told me. The applicant entered Australia on 26 March 1997 and has been here ever since. He applied for a protection visa in April 1997. While it appears from the Tribunal’s decision that the applicant was invited to a hearing before the Tribunal, it appears likely that the applicant did not in fact receive that invitation. Essentially, the Tribunal’s decision was adverse to the applicant because it had insufficient information to make a favourable decision. There is no evidence that the hearing invitation sent to the applicant by the Tribunal failed to comply with the procedural requirements of the Migration Act and Migration Regulations 1994 (Cth). The Tribunal was satisfied that it could and should proceed to make a decision in the absence of the applicant.
3. It appears that the applicant was not immediately aware of the Tribunal decision. That is evidenced by the fact that he wrote to the Tribunal in support of his application three months after the Tribunal decision.
4. The applicant conceded that he lived in Australia for some time in fear of detection and removal from Australia. I do not know when he became aware of the Tribunal’s decision and his unlawful status. However, he was aware by 2006 of the need for him to regularise his status. In 2006, he made a request for Ministerial intervention. He acted on advice from a migration agent. The request was unsuccessful. More recently, he made a second request for Ministerial intervention. That was also unsuccessful. As a consequence of being notified of the failure of that second request[1], the applicant was put on notice of the need for him to leave Australia. It was as a direct consequence of that notification that the applicant elected to file this present application.
5. The applicant has fathered two children in Australia. Those children live with his ex-wife who has re-married. There is apparently no arrangement or family law orders in place to deal with contact between the applicant and his children. I have informed the applicant of his entitlement to seek appropriate orders under the Family Law Act 1975 (Cth).
6. The applicant claims special skills as a car mechanic. He clearly does not want to return to Indonesia.
7. There are several considerations relevant to determining an application for an extension of time. One of those is the extent of the delay. That delay is substantial. Another consideration is the explanation for the delay. For some time the applicant was not aware of the Tribunal decision. However, he also did not take active steps to find out about it until relatively recently. He knew or suspected that his status in Australia was irregular and he was afraid of detection and removal. He has, on advice, chosen to pursue requests for Ministerial intervention. The applicant has been honest in explaining his situation. However, I am not satisfied that he has advanced a satisfactory explanation for his delay in coming to court.
8. Another consideration is whether there would be a serious question to be tried on the judicial review explanation if an extension of time were granted. I am not persuaded that there would be. On its face, the Tribunal decision is simple and uncontroversial. Hypothetically, there might be some issue in relation to the hearing invitation sent to the applicant. However, there is nothing before the Court to indicate an arguable case of jurisdictional error by the Tribunal. The circumstances of the applicant raise humanitarian considerations, especially those concerning the length of time he has been in Australia and the circumstances of his children. However, those humanitarian considerations are beyond the scope of these proceedings. The Ministers at the relevant times have also had two opportunities to consider those humanitarian considerations.
9. In all the circumstances I have decided that the application for an extension of time should be dismissed. The necessary consequence of that decision is that the application for judicial review must be dismissed as incompetent. I so order.
10. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant sought a reduction in costs but I see no reason to depart from the Court scale. I will order that the applicant pay the Minister’s costs and disbursements of and incidental to the application in the sum of $1,175 in accordance with the Court scale.
    

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 11 October 2010

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[1] see exhibit A1