SZQLD v Minister for Immigration and Citizenship

Federal Court of Australia|2011-11-21|Before: Rares J

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 The applicant filed an application for extension of time and leave to appeal on 31 October 2011, in respect of a decision by the Federal Magistrates Court, refusing him an extension of time under s 477(2) of the Migration Act 1958 (Cth) to seek constitutional writ relief in respect of a decision of the Refugee Review Tribunal made on 15 February 2011: SZQLD v Minister for Immigration [2011] FMCA 784. The Minister has filed a notice of objection to competency of this application.

The proceedings below 2 An application had been filed in the Federal Magistrates Court on 18 July 2011, 119 days after the last day that it could have been filed in that Court, of right, pursuant to s 477(1) of the Act. That section provides that an application to the Federal Magistrates Court for a remedy to be granted in exercise of its original jurisdiction, under s 476 of the Act, in relation to a migration decision, must be made to that Court within 35 days of the date of the migration decision. The decision of the Tribunal was a privative clause proceeding that was open to be reviewed, if affected by jurisdictional error, pursuant to s 476 of the Act. 3 The Federal Magistrates Court has a discretion under s 477(2) to order an extension of the 35 day period as it considers appropriate if two circumstances are satisfied. First, an application to that Court for such an order must have been made in writing, specifying why the applicant considers it necessary in the interests of the administration of justice for that order to be made and, secondly, that Court must be satisfied that it is necessary, in the interests of the administration of justice, to make such an order. The trial judge considered in his reasons the basis on which the applicant invoked the jurisdiction of the Federal Magistrates Court to order an extension of time under s 477. He decided to refuse to make the order for reasons that he gave.

The jurisdiction of this Court 4 The Minister contended that the application to this Court is incompetent because s 476A(3)(a) of the 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); or" 5 The evident purpose of s 476A(3)(a) is to foreclose any right of appeal against interlocutory decisions made by the Federal Magistrates Court in the exercise of its discretionary jurisdiction under s 477(2). That discretion falls to be exercised when that Court considers whether it is necessary, in the interests of the administration of justice, to grant or refuse to make an order extending the time in which an application may be made to it, for review of a decision such as that made by the Tribunal.

Consideration 6 The applicant argued that because the decision of the Tribunal was a privative clause decision within the meaning of s 474 of the Act, he had a right to bring an appeal to this Court. He was unable to articulate any basis upon which such a submission could be sustained. 7 I am of opinion that the plain words of s 476A(3)(a) must be given effect. This Court has no jurisdiction to entertain an appeal from a judgment, or, order of, the Federal Magistrates Court refusing to grant an extension of time under s 477(2). It must follow that there is no jurisdiction to entertain an application seeking an extension of time in which to file an appeal, or leave to appeal, from such a judgment or order. 8 For these reasons, I order that the application for extension of time and leave to appeal filed on 31 October 2011 be dismissed as incompetent. The Minister has indicated that he does not seek costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Migration Act 1958(Cth)ss 474, 476, 476A(3)(a), 477(1), 477(2)

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