SZBJP v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT (Revised from transcript) 1 This is an application for leave to appeal from a decision of a Federal Magistrate made on 20 July 2006 this year: see SZBJP v MIMA [2006] FMCA 1098. The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal made on 12 August 2003. The applicant challenged the Tribunal's decision to refuse to grant a protection visa to which he claimed to be entitled on the ground that he feared persecution on account of his religion. Her Honour dismissed the application before her because it was commenced outside the time limit provided for by the Migration Act 1958 (Cth) as amended. 2 The Federal Magistrate gave careful consideration to the cases and in very clear reasons explained that s 477(1) of the Act provides that an application for judicial review of a decision of the Tribunal must be made within 28 days of actual notification of the decision. Her Honour explained that s 477(2) permits a magistrate to extend the 28-day limit by up to 56 days but that, by reason of s 477(3), a Federal Magistrate is not permitted to extend the time beyond the 84-day limit. The Federal Magistrate discussed the amendments to the Act that brought about this result and applied them to the case before her. 3 By an application filed in September 2003 in the Federal Magistrates Court, the applicant had previously sought judicial review of the same decision of the Tribunal: SZBJP v MIMIA [2003] FMCA 590. Accordingly the Federal Magistrate concluded, obviously correctly, that there could be no doubt that the applicant must have had actual notification of the Tribunal's decision prior to that time. As a result, the transitional provisions in the Migration Litigation Reform Act 2005 (Cth) applied and the time limits in s 477 of the Act operated as if the actual notification had taken place on 1 December 2005. 4 The consequence was that the 28-day time limit expired on 29 December 2005 and the latest to which the Federal Magistrate could have extended the time, if the circumstances had warranted it, was 23 February 2006, which was a further 56 days later. The application was, however, not made until 16 June 2006. Accordingly, it follows that the Federal Magistrate was correct in holding that she simply had no jurisdiction to hear the application. In his submissions before me today, the applicant recognised and, indeed, as I understood his submission, complained about the fact that the Federal Magistrate had done no more than apply the time limits. 5 The applicant criticised the policy of the legislation that provides for those time limits, but in his submissions did not advance any argument that the Federal Magistrate was wrong as a matter of law in applying them. He complained about what he saw was the injustice of the situation but did not seek to show that the Federal Magistrate was, or even might have been, wrong as a matter of law. The applicant complained about the law, but the task of the Federal Magistrate, as, indeed, is the task of this Court, is to apply it. 6 The Federal Magistrate also noted that the applicant had previously sought review of the same decision of the Tribunal in the Federal Magistrates Court, that he had appealed to this Court and had sought special leave to appeal to the High Court: see respectively SZBJP v MIMIA [2003] FMCA 590; SZBJP v MIMIA [2004] FCA 390; SZBJP v MIMIA [2005] HCATrans 276. Her Honour however determined the matter on the basis that the application was made outside the time provided for by the Act as amended. I can see no basis for concluding that the Federal Magistrate was in error. Any appeal in this matter would be doomed to fail and, accordingly, leave to appeal must be refused. 7 The Minister has asked for the costs of this proceeding. The ordinary rule applied in all courts in Australia is that the losing party generally pays the costs. There are some exceptions but no case for an exception to the general rule has been made out here. The applicant complains that he has not had a chance to put what he really wants to say about his case. The applicant should note what the Federal Magistrate said and needs to appreciate that his case was in fact considered by the Refugee Review Tribunal, by the Federal Magistrates Court, by the Federal Court and there was an application for special leave to appeal to the High Court. 8 In each of those instances in the earlier proceedings, the applicant had the opportunity to say what was legally open to him to say. There will be an order that he pays the costs. 9 The application for leave to appeal is dismissed, with costs to be taxed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.