Kim v Minister for Immigration

[2007] FMCA 707

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KIM & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 707

MIGRATION – Migration Review Tribunal – practice and procedure – extension of time – whether Court has jurisdiction to entertain application.

Migration Act1958 (Cth), ss.477(1); s.477(3)

First Applicant: MI SOON KIM

Second Applicant: CHAE TOK KOO

Third Applicant: NAM IN KOO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: SYG875 of 2007

Judgment of: Emmett FM

Hearing date: 3 May 2007

Date of last submission: 3 May 2007

Delivered at: Sydney

Delivered on: 3 May 2007

REPRESENTATION

Applicant appearing on her own behalf

Solicitors for the Respondent: Ms M. Mafessanti, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG875 of 2007

MI SOON KIM

First Applicant

CHAE TOK KOO

Second Applicant

NAM IN KOO

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The First Respondent seeks an order that the applicants’ application, filed on 15 March 2007, seeking judicial review of a decision of the Migration Review Tribunal (“the Tribunal”), dated 13 November 2006, be dismissed on the basis that this Court has no jurisdiction to extend time to the applicants for the filing of an application beyond 84 days from notification to the applicants of the decision of the Tribunal affirming the decision of the delegate of the First Respondent (“the Delegate”) to refuse the applicants protection visas.

2. The first named applicant (“the Applicant”), the mother of the second and third named applicants, states in the application that she was notified of the Tribunal decision on 13 December 2006.

3. The First Respondent read the affidavit of Miriam Mafessanti, sworn 12 April 2007.  Annexure “A” to Ms Mafessanti's affidavit is a letter from the Applicant to the Minister for Immigration and Multicultural Affairs, dated 26 December 2006, requesting intervention in this matter, following refusal by the Tribunal to review her application, on the basis that that Tribunal did not have jurisdiction to entertain her application because it was filed out of time.

4. I am satisfied that the Applicant was notified of the decision of the Tribunal on 13 December 2006, in accordance with the statement in her application. Even if I were to consider the later date of the Applicant's letter of 26 December 2006, whilst it may be arguable that just less than 82 or 83 days only had elapsed since the date of that letter and the filing by the Applicant of her application in this Court, there is no evidence before me to suggest that the Applicant was not notified of the decision in accordance with the statement in her application. In the circumstances, the application has not been made in accordance with s.477(1) of the Migration Act (Cth) (“the Act”), in that it was not made within 28 days of actual notification of the decision.

5. Whilst the Applicant has sought an extension of time in her application, that application must be made within 84 days of notification of the decision of the Tribunal to the applicant. That has not occurred. In the circumstances, s.477(3) of the Act provides that this Court:

   “must not make an order allowing, or which has the effect of allowing, an applicant to make an application… [for review] outside that 28 day period.”

6. I also have regard to two letters from the first respondent's solicitor; the first is dated 27 March 2007 on Clayton Utz letterhead and addressed to the Applicant at her identified address for correspondence.  That letter is marked exhibit 1R and is in the following terms:

   “We enclose by way of service the Response filed 27 March 2007.

   We note that this matter is listed for directions hearing on 19 April 2007 at 9.30 am.  On this date, we will seek to have this matter dismissed on the basis of the grounds outlined in our Response.

   Please feel free to contact Miriam Maffessanti if you have any queries concerning this matter.”

7. I note that the Applicant's application was first set down for directions on 19 April 2007, at 9.30am.  On that occasion, a Registrar of this Court stood the matter over before me today.  However, exhibit 1R informed the Applicant that on that occasion the First Respondent would seek to have the matter dismissed on the basis that the Court lacks jurisdiction.

8. The second letter is a letter dated 13 April 2007, from Clayton Utz to the applicants at the only address identified by the applicants on their application.  That letter is marked exhibit 2R, and that letter attached a copy of the affidavit of Miriam Mafessanti, sworn 12 April 2007. 

9. In the circumstances, I am satisfied that this Court has no jurisdiction to entertain the applicants’ application, and the proceeding before this Court, commenced by way of application filed on 15 March 2007, is dismissed. 

RECORDED  :  NOT TRANSCRIBED

1. The first respondent seeks costs fixed in the amount of $750.  I note that sum is less than the amount provided in the costs schedule of this Court.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Maconachie

Date:  21 May 2007