SZIQW v Minister for Immigration and Citizenship [2011] FCA 1369 (15 November 2011)

Last Updated: 16 December 2011

FEDERAL COURT OF AUSTRALIA

SZIQW v Minister for Immigration and Citizenship [2011] FCA 1369

Citation:		SZIQW v Minister for Immigration and Citizenship [2011] FCA 1369
Appeal from:		Application for extension of time in order to file application for leave to appeal: SZIQW v Minister for Immigration & Anor [2006] FMCA 762
Parties:		SZIQW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1202 of 2011
Judge:		NORTH J
Date of judgment:		15 November 2011
Legislation:		Migration Act 1958 (Cth)
Date of hearing:	15 November 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	9
Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondents:	Mr O Jones
Solicitor for the Respondents:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1202 of 2011

BETWEEN:	SZIQW Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	15 NOVEMBER 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time for leave to appeal against the judgment of Federal Magistrate Scarlett delivered on 22 May 2006, and the application for leave to appeal are dismissed;
2. The applicant is to pay the first respondent’s costs of the applications fixed in the sum of $2,550.
   

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1202 of 2011

BETWEEN:	SZIQW Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	NORTH J
DATE:	15 NOVEMBER 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an application for leave to appeal and for an extension of time within which to apply for leave to appeal. The applicant seeks leave in respect of a judgment of the Federal Magistrates Court which was delivered on 22 May 2006.
2. Before the Federal Magistrates Court was an application for review of a decision of the Refugee Review Tribunal which was made on 13 March 2002. The Tribunal affirmed the decision of the delegate of the Minister for Immigration and Multicultural Affairs, now the Minister for Immigration and Citizenship, the first respondent, to refuse the applicant a protection visa.
3. The application before the Federal Magistrates Court was filed 10 April 2006. The applicant did not appear at the hearing before the Federal Magistrates Court on 22 May 2006. The application before the Federal Magistrates Court was dismissed on the ground that the Court did not have jurisdiction to hear the matter. Although the Federal Magistrate did not refer to the basis for this conclusion, it is likely that he had in mind s 477 of the Migration Act 1958 (Cth) which limited the time within which such an application might be made to the Federal Magistrates Court.
4. At the time of the judgment, s 477(1) -(3) provided:

(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 28 days of the actual (as opposed to deemed) notification of the decision.

(2) The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:

(a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and

(b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.

(3) Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.

5. The application for leave to appeal to this Court was made on 21 July 2011, that is to say, more than five years after the judgment of the Federal Magistrates Court. This is well beyond the time limited for the filing of such an application as now prescribed by r35.13(a) of the Federal Court Rules 2011 or O52 r5 of the Rules previously applicable. Consequently the applicant required an extension of time within which to seek leave to appeal.
6. In considering the application for leave to appeal, and for an extension of time within which to apply for leave, relevant factors include whether there is an explanation for the delay and whether the applicant has a reasonable prospect of success on the appeal.
7. The applicant says that the reason for the delay is that she was not aware of the judgment of the Federal Magistrates Court until 14 July 2011, when she was asked by the Department of Immigration and Citizenship to leave Australia. She told the Court that she had engaged a migration agent by the name of Eric to conduct the Federal Magistrates Court proceeding on her behalf. She said that she had paid him $5000 when the application to the Federal Magistrates Court was filed in April 2006. She said that Eric then disappeared and she heard no more of the matter.
8. A serious question arises as to why the applicant did not pursue inquiries about her case for five years. However, in the end it is not necessary to pursue that aspect. The terms of s 477 are clear. They presented an insurmountable barrier to the Federal Magistrates Court to entertain an application for review more than four years after the decision of the Tribunal. The judgment of the Federal Magistrate applied the clear provisions of s 477 and the applicant consequently has no chance of success on an appeal against the judgment of the Federal Magistrate.
9. In those circumstances, an extension of time within which to seek leave to appeal or the grant of leave to appeal would be futile. Consequently, leave to appeal or an extension of time within which to make that application should be refused.
   

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated: 30 November 2011