FEDERAL COURT OF AUSTRALIA

SZLZH v Minister for Immigration and Citizenship [2008] FCA 1163

Federal Court Rules

Migration Act 1958 (Cth) s 412, s 494C(4)

The Constitution s 75(v)

Fernando v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 97 FCR 407 cited

SZLZH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD734 of 2008

LOGAN J

4 AUGUST 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for an extension of time is dismissed.

2.                  The Applicant is to pay the First Respondent’s costs in respect of the application which are fixed at $1,500.00.

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

REASONS FOR JUDGMENT

1                     This is an application for an extension of time within which to appeal against a decision given by Federal Magistrate Scarlett on 28 April 2008. 

2                     An extension of time is necessary because the application was lodged in this Court outside the period prescribed in the Federal Court Rules for the filing of a notice of appeal.  The application is accompanied by an affidavit which the Applicant has given.  That affidavit does not detail why the application for an extension of time came to be lodged when it did, ie, there is no explanation given for why an appeal could not have been lodged within the period prescribed by the Federal Court Rules. Instead, the affidavit focuses on an alleged error on the part of the Refugee Review Tribunal (“Tribunal”) in finding that the Applicant was notified of the decision of a delegate of the Minister to refuse her application for a protection visa. 

3                     Section 412 of the Migration Act 1958 makes provision for, materially, the time within which an application for review of a decision by the Minister or his delegate must be instituted.  In short, a review application must be in the approved form and be given to the Tribunal within the period prescribed, which is a period ending not later than 28 days after the notification of the decision of the Minister or his delegate.

4                     Materially, notification of a decision of the Minister or his delegate, insofar as pre-paid post is utilised, is the province of s 494C(4) of the Migration Act 1958.  In short, if that particular means of notification is availed of, then the person is taken to have received the document if it was dispatched from a place in Australia to an address in Australia seven working days (in the place of the address in Australia) after the date of the document.  The parenthetical reference to “in the place of that address” in s 494C(4) evidences an intention on the part of Parliament that the existence of, for example, a public holiday in the place in Australia to which the document is sent not count against the recipient so far as the calculation of time is concerned.

5                     In this case, there was evidence before the Tribunal that the decision of the Minister’s delegate was contained in a document dated 17 October 2007 which was sent that day by registered post to the address which the Applicant had given to the Department of Immigration when making her application.  There was no evidence that the letter had been returned as, for example, undeliverable by Australia Post.  That means, in the circumstances of this case, that it is unnecessary to decide what impact, if any, such evidence might have had on what would have been the operation of s 494C so far as its impact on the 28 day application period for which s 412 of the Migration Act 1958 makes provision.

6                     The learned Federal Magistrate, at paras 17 through to and including 22 of the reasons for judgment, canvasses the relevant statutory provisions as they impact on the circumstances of this case.  The Magistrate noted correctly, with respect, that the effect of this Court’s decision in the Fernando v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 97 FCR 407 is that the Tribunal has no jurisdiction to enlarge the time within which an application for review can be made. 

7                     So much would seem inevitably to follow from the absence of any conferral of such power by the Migration Act 1958.  The Tribunal is a statutory tribunal and possesses no greater jurisdiction than that which Parliament has chosen to confer upon it.  Section 412 of the Migration Act 1958 lays down a period within which an application to the Tribunal can be brought.  If an application is brought outside that period, then the Tribunal has no ability to extend time, whatever may be the merits either in law or in fact, of the challenge that is sought to be made to the decision of the Minister or his delegate.

8                     As was, with respect, correctly highlighted in the submissions made before me on behalf of the Minister, that does not mean that the decision of the Minister or his delegate is completely immune from challenge.  The High Court has jurisdiction under s 75(v) of the Constitution to grant a constitutional writ in respect of any legal error made by the Minister or his delegate.  What is undoubtedly lost, though, by a failure to institute a proceeding within the time prescribed by s 412 of the Migration Act 1958, is an ability to have the decision of the Minister or his delegate, in respect of the protection visa application, reviewed on the factual merits.

9                     Whether or not to grant an extension of time within which to appeal from the Federal Magistrates Court requires the exercise of a judicial discretion. Relevant to the exercise of that discretion are the explanation, if any, given in respect of the delay in the lodgement of an appeal and the prospects, if any, of success in respect of the proposed appeal. 

10                  In this case there is no explanation that is given and I assess the prospects of success as not being reasonable.  In those circumstances, it seems to me that an extension of time ought not be granted.  I refuse the application.

11                  As to costs, an application has been made on behalf of the Minister for the payment by the Applicant of the Minister’s costs.  For that purpose and having regard to a practice direction which has been promulgated, an affidavit has been filed which sets out an estimate in respect of the costs.  Whilst it may have been desirable for the composition of the estimate to have been detailed, either in the body of the affidavit or by the exhibiting of a skeleton bill of costs, it does seem to me, having regard to particularly candid responses which were given on behalf of the Minister by his solicitor in relation to the composition of the estimate of costs and the practice of the Registrars of this Court in relation to taxation of costs, that the amount that has come to be sought on behalf of the Minister is reasonable.

12                  In expressing that view, I have also taken into account what type of work might reasonably be expected to have been undertaken professionally in the meeting of an application for an extension of time in this case. 

13                  On behalf of the Applicant, the submission is made that she is not pecunious and, therefore, unlikely to be able to meet an order for costs.  It seems to me, though, that this is a matter for the Minister to reflect upon in deciding whether or not to enforce an order for costs.  It does seem to me that the ordinary rule as to costs ought to apply, such that the Applicant, having not succeeded on the application, should pay the Minister’s costs. 

14                  Further, and as I have indicated, the estimate which has come to be provided to the Court by the Minister does seem to me to be a reasonable estimate of the likely outcome of taxation of costs.  Further, it seems to me that, in those circumstances, it would be productive of a saving to the Applicant were I to fix those costs now, rather than to commit the task to a taxing officer of the Court.

15                  The orders that I make in respect of the application are, therefore, as follows:

1.                  The application for an extension of time is dismissed.

2.                  The Applicant is to pay the First Respondent’s costs in respect of the application which are fixed at $1,500.00.

Associate:

Dated:         6 August 2008