SZIVV v Minister for Immigration & Citizenship [2007] FCA 221

SZIVV v Minister for Immigration & Citizenship [2007] FCA 221

The appellant did not identify any viable ground of appeal against the Federal Magistrate's dispositive finding that he had received actual notification of the Tribunal's decision before 1 December 2005. That finding was reasonably open on the evidence recorded by the Federal Magistrate, particularly given the assessment of the appellant as a witness and his delay until 2006. Because the Federal Magistrates Court therefore lacked jurisdiction to hear the out-of-time application, there was no basis to allow amendment or grant leave, and the appeal had to be dismissed.

Jurisdiction
Australia
Judgment Date
23 February 2007
Procedural Posture
Appeal From a Decision of the Federal Magistrates Court Exercising Jurisdiction Under S 476 of the Migration Act 1958 (cth) / Appeal Dismissed
Outcome
Appeal dismissed with costs payable by the appellant to the first respondent.
Legal Topics
['protection Visa' 'refugee Review Tribunal' 'judicial Review Time Limits' 'actual Notification' 'jurisdiction' 'leave to Appeal']
['migration Law' 'administrative Law'] ['protection Visa' 'refugee Review Tribunal' 'judicial Review Time Limits' 'actual Notification' 'jurisdiction' 'leave to Appeal']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Appeal From a Decision of the Federal Magistrates Court Exercising Jurisdiction Under S 476 of the Migration Act 1958 (cth) / Appeal Dismissed

Legal Issues

  1. 1 ['Whether the appeal was competent without leave because the decision below was said to be interlocutory.' "Whether the Federal Magistrates Court had jurisdiction to hear the application for review of the Tribunal's decision given the statutory time limits and the finding that the appellant had actual notice before 1 December 2005." 'Whether the appellant demonstrated a viable ground of appeal or basis to amend the notice of appeal to challenge the finding of actual notification.']

Ratio Decidendi

The appellant did not identify any viable ground of appeal against the Federal Magistrate's dispositive finding that he had received actual notification of the Tribunal's decision before 1 December 2005. That finding was reasonably open on the evidence recorded by the Federal Magistrate, particularly given the assessment of the appellant as a witness and his delay until 2006. Because the Federal Magistrates Court therefore lacked jurisdiction to hear the out-of-time application, there was no basis to allow amendment or grant leave, and the appeal had to be dismissed.

Court Disposition

Appeal dismissed with costs payable by the appellant to the first respondent.

Orders

  • ['The appeal be dismissed.' 'The Refugee Review Tribunal be joined as second respondent and that the existing respondent become the first respondent.' 'The name of the first respondent be amended to "Minister for Immigration and Citizenship".' "The appellant pay the first respondent's costs of the appeal."]