FEDERAL COURT OF AUSTRALIA

SZODM v Minister for Immigration and Citizenship [2010] FCA 885

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant pay the first respondent’s costs fixed in the sum of $975.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     The appellant is an Indian citizen who unsuccessfully applied for a protection visa about six weeks after he arrived in Australia.  After his application was refused, he sought a review of that decision in the Refugee Review Tribunal (Tribunal) which was equally unsuccessful.  That decision was made on 12 June 2009 and sent to his migration agent the same day.  Despite s 477(1) of the Migration Act 1958 (Cth) (Migration Act), which requires that an application to the Federal Magistrates Court for a remedy to be granted in exercise of the Court’s original jurisdiction under s 476 in relation to a migration decision be made within 35 days of the date of the migration decision, it was not until nearly seven months later – on 5 February 2010 – that the appellant applied to the Federal Magistrates Court for an extension of time in which to seek judicial review of the Tribunal’s decision.

2                     Pursuant to subs (2) of s 477, the Federal Magistrates Court had the power to extend that 35 day period if it considered it necessary in the interests of the administration of justice to make the order.  On 23 April 2010 Emmett FM refused the application and the appellant has filed an appeal against that judgment.  As this is an appeal from an interlocutory judgment, leave is required.  Leave has not been sought but, as it transpires, that does not matter.  The first respondent has filed an objection to competency.  The objection must be upheld and the appeal dismissed. 

3                     Section 476A(3) of the Migration Act provides:

(3)        Despite section 24 of the Federal Court of Australia Act 1976 an appeal may not be brought to the Federal Court from:

(a) a judgment of the Federal Magistrates Court that makes an order or refuses to make an order under subsection 477(2).

4                     The Federal Magistrate’s judgment was one in which she refused to make an order under subs 477(2) of the Migration Act.  Accordingly, this appeal is incompetent.  I therefore order that the appeal be dismissed.

5                     The first respondent has made an application for costs.  The ordinary rule is that costs follow the event.  The appellant opposes an order for costs.  The reason for his opposition is that he is impecunious.  His capacity to pay any costs order is an insufficient basis for denying the first respondent’s application and I therefore accede to it.  I order that the appellant pay the first respondent’s costs fixed in the sum of $975.

Associate:

Dated:         18 August 2010