FEDERAL COURT OF AUSTRALIA

SZJSY v Minister for Immigration & Citizenship [2007] FCA 1261

SZJSY v MINISTER FOR IMMIGRATION & CITIZENSHIP AND ANOR

NSD886 OF 2007

EMMETT J

7 AUGUST 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The purported notice of appeal filed on 21 May 2007 be dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

1                     The applicant is a citizen of the Peoples Republic of China.  He arrived in Australia on 14 June 2003 and on 11 July 2003, lodged an application for a protection (Class XA) visa under the Migration Act 1958 (Cth) (the Act).  On 30 July 2003, a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), refused to grant a protection visa.  On 1 September 2003 the applicant applied to the second respondent, the Refugee Review Tribunal (the Tribunal), for review of the delegate’s decision.   On 27 February 2004, the Tribunal affirmed the decision not to grant a protection visa.  The applicant was notified of that decision on 18 March 2004.

2                     On 23 November 2006 the applicant commenced a proceeding in the Federal Magistrates Court of Australia seeking judicial review of the Tribunal’s decision.  On 30 April 2007, the Federal Magistrates Court ordered that the proceeding be dismissed.  The Court found that the applicant had been notified of the Tribunal’s decision in March 2004, recording that the actual notification was taken to have been given on 1 December 2005.  Nevertheless, the application to the Federal Magistrates Court was not made until 23 November 2006. 

3                     Section 477(3) of the Act prohibits the Federal Magistrates Court from making an order extending the time for lodgement of an application for judicial review beyond 28 days unless an application is made within 84 days of actual notification.  No such application was made to the Federal Magistrates Court and the Court found that the application was made out of time and that the court was prohibited from extending the time from making an application.  In any event, the Federal Magistrates Court considered that, even if the applicant had not been “actually notified” of the decision until 18 November 2006, the Court would refuse relief as a matter of discretion, having regard to the conduct of the applicant in delaying the commencement of proceedings. 

4                     On 21 May 2007 the applicant filed a notice of appeal to this court from the orders of the Federal Magistrates Court on 4 June 2007.  The Minister’s solicitors filed notice of objection to competency of the appeal.  The objection was on the basis that the order of the Federal Magistrates Court was interlocutory and therefore appeal lies only pursuant to the grant of leave under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act).  No leave has been granted.  The Minister’s solicitor, as I understand it, would be prepared to have the notice of appeal treated as a notice of application for leave. 

5                     When the matter was called on for hearing today there was no appearance for the applicant.  The Minister therefore asks that the proceeding be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court Act.  There is no substance in the ground upon which judicial review of the Tribunal’s decision was sought.  The grounds specified in the application filed on 23 November 2006 do not even hint at any jurisdictional error on the part of the Tribunal.  Thus, even if the Federal Magistrates Court had been prepared to entertain the application on the merits, it was doomed to fail.  In all of the circumstances, I consider that it is appropriate to accede to the Minister’s application that the proceeding be dismissed.

Associate:

Dated:         7 August 2007