FEDERAL COURT OF AUSTRALIA

SZJYV v Minister for Immigration and Citizenship [2007] FCA 731

Migration Act 1958 (Cth) ss 477, 486A

Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 discussed

Fisher v Minister for Immigration and Citizenship [2007] FCA 591 cited

SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39 cited

SZJYV v MINISTER FOR IMMIGRATION AND CITIZENSHIP & REFUGEE REVIEW TRIBUNAL

NSD 353 OF 2007

DOWNES J

16 MAY 2007

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS:

1.                  The Refugee Review Tribunal is joined as Second Respondent.

2.                  Amend the title of the First Respondent to ‘Minister for Immigration and Citizenship’.

3.                  Appeal dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     The appellant is from the People’s Republic of China.  He arrived in Australia in July 1998.  He applied for a protection visa, claiming a well-founded fear of persecution within the Refugees Convention on the ground of his trade union activity.  His application was refused on 15 September 1998 and that decision was affirmed by the Refugee Review Tribunal on 7 September 1999. 

2                     The appellant asserts that he only received actual notice of the Tribunal decision on 30 August 2006.  He filed an appeal with the Federal Magistrates Court on 2 January 2007.  His application was summarily dismissed on 1 March 2007 on the basis that he had failed to comply with the time limit under s 477 of the Migration Act 1958 (Cth).  He purports to appeal to this court against that decision.  The notice of appeal contains three grounds.  There is no application for leave to appeal.  Leave would be necessary because the decision of the Federal Magistrates Court is interlocutory in nature.

3                     Section 477 of the Migration Act provides the Federal Magistrates Court with a limited discretion to entertain applications for review filed out of time.  The time within which applications for review may be filed is 28 days.  The Court has no jurisdiction to entertain applications filed more than 84 days out of time.

4                     I will proceed on the basis that time began to run on the day the appellant says he received notice of the Tribunal decision, namely, 30 August 2006.  I note, however, that this was nearly seven years after the decision was made.  Turner FM dismissed the appellant’s application because it was filed more than 84 days out of time.  The Court has no jurisdiction to entertain applications filed after that time.  I can see no error in the Federal Magistrate’s decision.  In oral submissions, the appellant referred to some factors which he relied upon as explaining his delay.  I did not find these explanations satisfactory but in any event the time limit of 84 days is absolute and even if I were satisfied that there was some explanation for the delay, that could not avail the appellant. 

5                     I note that in the recent decision of Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14, the High Court declared s 486A of the Migration Act invalid.  Section 486A purports to impose time limits on the High Court’s jurisdiction to entertain applications for review in much the same way as s 477 applies to the Federal Magistrates Court.  The High Court declared s 486A invalid on the basis that it impermissibly limits the right of applicants to seek relief, in the form of constitutional writs, under s 75(v) of the Constitution.  In my opinion, this decision does not bring the validity of s 477 into doubt.  The Federal Magistrates Court obtains its jurisdiction from statute rather than the Constitution.  If the legislature wishes to confine that jurisdiction it is entitled to do so (see SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39 at [45]-[47] and Fisher v Minister for Immigration and Citizenship [2007] FCA 591 at [43]).

6                     The appellant also referred to the failure of the Federal Magistrates Court to make inquiries as to the circumstances in which notice was given to the appellant by the Refugee Review Tribunal.  That submission misconceives the role of the Federal Magistrates Court.  It is not the role of the Federal Magistrates Court of its own motion to make inquiries about the circumstances of matters before it.   

7                     I have read the decision of Turner FM and I see no error in that decision.  It follows that the appeal cannot succeed even if I were to grant leave to enable the appeal to be regularised.  I have also read the decision of Mr Michael Griffin in the Refugee Review Tribunal.  To my mind, any appeal on the merits would have had no prospects of success.  The Tribunal found that the appellant was not a credible witness and that his evidence was confused, confusing and inconsistent.  It was satisfied that his claims were fabrications.  The appellant lost his claim on the facts.  I have also considered the claims made in the notice of appeal.  I consider they have no substance.  A properly constituted appeal from the original decision would, to my mind, be bound to fail.

8                     In all the circumstances, I propose to dismiss the appeal as incompetent noting that I would not grant leave to appeal if such an application were to be made.  The appeal must be dismissed with costs. 

Associate:

Dated:  23 May 2007