MZZCU v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 This matter was placed in my docket in accordance with the appeals process conducted within the Court under the supervision of Registrar Josan. On 25 September 2013, the Registrar ordered that the application be dealt with without an oral hearing. Orders were also made for the filing and serving of written submissions. The applicant was required to file and serve an outline of his submissions no later than 10 business days before 4 November 2013. He failed to comply with that order. The first respondent Minister filed and served his written outline of submissions on 28 October 2013, in compliance with the order of Registrar Josan. Given that the applicant is not represented by a lawyer, the Court has carefully considered whether there is any arguable basis upon which his application might succeed. The Court has been unable to discern any basis upon which the application could be successful. Its reasons for forming that view are expressed below. 2 The applicant seeks an extension of time within which to apply for leave to appeal from a judgment of the Federal Circuit Court and, if such extension is granted, leave to appeal from that judgment. 3 In the Court below, Judge Whelan dismissed an application to reinstate an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the first respondent Minister to refuse the applicant a protection visa. The applicant sought judicial review of that decision before the Federal Circuit Court. On 23 May 2013, Judge Reithmuller dismissed the application because the applicant failed to appear when the matter was called on. 4 Judge Whelan accepted that the applicant had a reasonable explanation for his failure to appear. Nonetheless, she refused to reinstate his application, on the basis that it had no reasonable prospects of success. Her Honour's judgment is dated 2 August 2013. The current application should have been filed by 16 August 2013 but was not filed until 26 August 2013; see r 35.13(a) of the Federal Court Rules 2011 (Cth). 5 When the applicant applied to the Tribunal to review the decision of the delegate, he used the wrong form. In reliance on the judgment of the Full Court in SZJDS v Minister for Immigration & Citizenship (2012) 201 FCR 1; [2012] FCAFC 27 at [26] Judge Whelan held that the failure of the applicant to use the correct form meant that there was no valid application before the Tribunal to review the decision of the delegate. Her Honour also referred to s 412(1)(a) of the Migration Act 1958 (Cth) which makes it a pre-condition to the exercise of power by the Tribunal that the application for review be on the approved form. As there was no valid application before it, the Tribunal was bound to dismiss the application. Judge Whelan found that the Tribunal determined correctly that it had no jurisdiction to embark on the review sought by the applicant. 6 As her Honour's judgment is interlocutory, the applicant needs leave to appeal from it; see Re Luck (2003) 203 ALR 1. Leave should not be granted if there is no utility in so doing. The applicant filed his application for leave and his application for an extension of time on 26 August 2013. No purpose would be achieved by granting an extension of time if the application for leave was bound to fail. 7 The grounds of appeal in the proposed draft notice of appeal do not address any aspect of the judgment of Judge Whelan. It is important to bear in mind that there was no contest before her Honour that the applicant did not use the correct form in applying to the Tribunal. Section 412(1)(a) of the Act requires that an application to the Tribunal be made "in the approved form". The approved form was not used. The Tribunal had no jurisdiction to embark on the application before it. 8 As no purpose would be served by granting the application for an extension of time within which to appeal, it is appropriate to dismiss it with costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.