1973/2007 SZKND v Minister for Immigration and Citizenship

[2007] FCA 1973

FEDERAL COURT OF AUSTRALIA

SZKND v Minister for Immigration and Citizenship [2007] FCA 1973

SZKND v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1236 OF 2007

FLICK J
14 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1236 OF 2007

BETWEEN:

SZKND
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FLICK J
DATE OF ORDER:	14 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1236 OF 2007

BETWEEN:

SZKND
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FLICK J
DATE:	14 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a decision of the Federal Magistrates Court delivered on 19 June 2007. 

2. Before that Court, the Applicant was seeking review of a decision of the Refugee Review Tribunal signed on 10 February 2006. 

3. The Federal Magistrate reviewed the chronological sequence within which applications had been made for review. 

4. Relevantly, the chronology can be stated as follows: 

DATE	EVENT
13 April 1959	The Applicant was born.
30 September 2005	The Applicant arrived in Australia.
6 October 2005	The application for the protection visa was filed with the then Department of Immigration and Multicultural and Indigenous Affairs.
27 October 2005	The decision of the Delegate of the First Respondent was made refusing the application for the protection visa.
28 November 2005	The application for review was lodged with the Refugee Review Tribunal.
9 January 2006	The hearing invitation letter was sent to the Applicant and the Applicant did not attend the hearing.
13 February 2006	The Tribunal handed down its decision and the Applicant did not attend on that occasion.  A copy of the decision was, however, sent to the Applicant at his latest address.
26 August 2006	The Applicant claims to have received actual notification of the Refugee Review Tribunal decision.
10 April 2007	The application for an order to show cause was filed in the Federal Magistrates Court.

1. Section 477 of the Migration Act 1958 (Cth) sets forth time limits within which applications are to be made to the Federal Magistrates Court. Those time limits require strict compliance: see SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39 at [67], 158 FCR 260 at 274. See also: SZJSY v Minister for Immigration and Citizenship [2007] FCA 1261; and SZKFC v Minister for Immigration and Citizenship [2007] FCA 687.

2. In the present proceedings, there was non-compliance with those time limits.  It is thus not surprising that the Federal Magistrate dismissed the application pursuant to r 44.12 of the Federal Magistrate Court Rules 2001 (Cth).  That decision was interlocutory: see r 44.12(2). 

3. At the outset of the proceedings, the matter was called on and there was no attendance for the Applicant.  The First Respondent made an application for the proceedings to be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth).  It is considered that this application for dismissal should be granted.

4. Even had that application not been made, it may be noted that the application for leave would almost certainly have failed.  The decision of the Refugee Review Tribunal has been examined with a view to determining whether or not any “jurisdictional” error is apparent on the face of those reasons.  None have been identified.  No error has been found in the decision of the Federal Magistrates Court.

5. In making the application that the proceedings be dismissed, the First Respondent has indicated that the respondent Minister does not seek an order for costs.

6. The Court orders that:

   1.  The application be dismissed.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:

Dated:        28 November 2007

The Applicant:	No appearance
Solicitor for the Respondent:	L Combes (Australian Government Solicitor)
Date of Hearing:	14 November 2007
Date of Judgment:	14 November 2007