SZAAM v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 I have before me an application for an extension of time to file and serve a notice of appeal from orders made by the Federal Magistrates Court on 26 March 2003: see SZAAM v Minister for Immigration [2003] FMCA 219. The application is opposed. 2 On 10 June 1999, the applicant applied for the grant of a protection visa under the Migration Act 1958 (Cth) ('the Act'). On 13 July 1999, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), refused the grant of a protection visa. On 19 March 2002, the Refugee Review Tribunal ('the Tribunal') affirmed the delegate's decision to refuse the grant of a protection visa. 3 On 12 April 2002, the applicant's solicitors wrote to the Minister requesting him to exercise his power under s 417 of the Act. Section 417(1) provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant. However, under s 417(7), the Minister does not have any duty to consider whether to exercise the power under s 417(1) in respect of any decision. 4 On 28 August 2002, the Minister decided not to consider exercising his power under s 417 and the applicant was notified of that decision on 2 September 2002. The applicant then sought judicial review of the Minister's decision to refuse to exercise his power under s 417. 5 The Federal Magistrates Court's order of 26 March 2003 was an order dismissing that application for judicial review. The ground upon which Driver FM dismissed the application was that the Federal Magistrates Court has no jurisdiction to entertain such an application. 6 The application for extension of time was filed in this Court on 30 May 2003. In support of the application, the applicant relied upon an affidavit to the effect that the copy of the Magistrate's reasons was not received until some time after the orders were pronounced. Whether or not there is sufficient explanation of the delay to constitute special reasons, another question that must be considered is whether there is any utility in granting the extension of time. 7 Section 476(2) of the Act provides that, despite any other law, the Federal Magistrate's Court does not have any jurisdiction in respect of a decision of the Minister not to exercise or not to consider the exercise of the Minister's power under s 417. That provision means what it says. The decision of Driver FM to dismiss the application as incompetent was therefore clearly correct. 8 No argument has been advanced to suggest that there is any basis upon which the Federal Magistrate's Court could have entertained an application to review the refusal of the Minister to consider the exercise of his discretion under s 417. Since there was no error on the part of the Magistrate, any appeal would be doomed to fail. There is, therefore, no utility in granting the application for extension of time to file a notice of appeal from the Magistrate's decision.