MZXJP v Minister for Immigration & Anor
[2006] FMCA 1010
•10 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXJP v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1010 |
| MIGRATION – Protection visa – summary dismissal – application filed out of time in breach of s.477 of Migration Act – applicant expresses intention to seek review of Tribunal decision within two days of decision to departmental officer – applicant in detention – court application not provided to applicant by a departmental officer – operation of s.477 of Migration Act – no jurisdiction where application filed after expiration of 84 days from date of notification of decision – no power to summarily dismiss on other grounds where no jurisdiction found due to non-compliance with time limits. |
| Migration Act 1958, s.477 Federal Magistrates Court Rules 2001, r.13.10 |
| Applicant: | MZXJP |
| First Respondent: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 547 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 10 July 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 10 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | In Person (with Mandarin interpreter) |
| Solicitor for the Respondents: | Ms K. Miller |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application filed 19 April 2006 be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001.
The Applicant shall pay the First Respondent's costs fixed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 547 of 2006
| MZXJP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter the Applicant filed an application on 19 April 2006. The Applicant seeks review of a decision of the Refugee Review Tribunal (the Tribunal) dated 9 January 2006. In its decision the tribunal affirmed the decision of a delegate of the first respondent to refuse to grant to the applicant a protection visa. The Respondent seeks summary dismissal of the application and in part relies upon the ground that the application is out of time pursuant to s.477 of the Migration Act 1958 (the Migration Act) and that the Court therefore does not have jurisdiction. Section 477 of the Migration Act provides:-
(1)An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.
(2)The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
(a)an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
(b)the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3)Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.
(4)The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.”
The background material in relation to this matter is not at this point significantly in dispute. The Applicant arrived in Australia on 29 December 2004 on a tourist visa which was then valid until 29 March 2005. The Applicant was detained by officers of the Department of Immigration and Multicultural Affairs on 27 October 2005. She made an application for a protection visa on 18 November 2005. The Applicant remains in immigration detention.
On 2 December 2005 the delegate of the First Respondent refused the protection visa application and the Applicant then applied to the Tribunal for review of that delegate's decision; she did so on the same day as the delegate's decision. The tribunal conducted a hearing attended by the applicant on 6 January 2006. The applicant was then represented by an agent and had the advantage of an interpreter. As indicated, a decision was made by the tribunal dated 9 January 2006.
It appears to be common ground that a copy of that decision was faxed to the Applicant's representative and the Applicant on or about
9 January 2006. It also appears to be common ground that on
10 January 2006 the applicant's then representative faxed a further copy of the decision of the Tribunal to the Applicant under cover of a letter dated 9 January 2006.
It is relevant at this point in considering the chronology to note that the applicant in an affidavit in support of her application deposes that she has had no lawyer "since 9 January". She further deposes, "So that I didn't get any help from anyone, that's why I'm late to lodge the application to Federal Court."
It appears to be common ground that on 11 January 2006 that is, just two days after the decision of the Tribunal an officer of the Department spoke to the Applicant about the Tribunal decision and according to the First Respondent's outline of submissions the officer was told by the Applicant that she had received the Tribunal decision, had spoken to the migration agent about the decision and intended to appeal the Tribunal decision.
It is noted further that the Applicant was apparently provided with an application form for legal aid only on 31 March 2006, which clearly at that stage would have been known by the person providing the form as then outside the 28 -day time period imposed by s.477 of the Migration Act. As I have indicated, the Applicant filed her application with this court on 19 April 2006.
The Applicant appears before this court with the assistance of an interpreter but otherwise is self‑represented.
The First Respondent apart from filing a response has also filed an application for summary dismissal. It is submitted by the First Respondent, having regard to the chronology of events and the operation of s.477 of the Migration Act, that the Applicant's application to this court seeking review of the Tribunal decision is clearly outside the 28‑day period from the date of actual notification of that decision to the Applicant.
I am satisfied on the material before me that at the very least the court can find that the Applicant had actual notification of the Tribunal decision on 11 January 2006. Accordingly, it is clear that when the Applicant filed her application on 19 April 2006 the application was out of time. Section 477 then provides for an extension of time which this court may grant for a period of up to 56 days, effectively making a total of 84 days from the date of actual notification to the date of filing an application in this court.
In considering an application for extension the Migration Act in s.477(2)(b) provides that the court needs to be satisfied that it is "in the interests of the administration of justice" to do so. It is also evident from s.477(2) that any application for extension of time has to be made within 84 days of the actual notification of the decision. A simple arithmetic exercise reveals that the 84‑day period expired on 5 April 2006 and that accordingly the applicant was some 14 days late in filing her application, even to fulfil the requirement of seeking an extension of time which the court may have been minded to grant.
So that there is no misunderstanding, had an application for extension of time been made within 84 days of the actual notification of the Tribunal decision then I would have had no hesitation in granting that extension of time in the interests of the administration of justice, having regard to the fact that the Applicant was in detention and self‑represented, non English speaking and appears not to have been provided with a copy of the relevant application within a reasonable time after telling a departmental officer that she wished to review the Tribunal decision.
The Applicant through the interpreter has expressed concern about the delay and explained the delay, referring in part to the fact that she was in detention, no longer had the services of a lawyer, was not provided with the application, and further referred to illness she has suffered over that period of time.
Whilst some of that material is not the subject of affidavit evidence, I am prepared for present purposes to accept what the Applicant has asserted from the bar table. The court then is left with a legislative provision which, in my view, provides very little, if any, discretion and which ultimately leads to a conclusion that as a result of the effluxion of time the court does not have jurisdiction to hear and determine this application.
The result in this case is that a self‑represented Applicant who is non English speaking and in detention and who I am satisfied was not at the relevant time provided with an application for judicial review has been denied the opportunity of pursuing judicial review and effectively denied the opportunity of this court considering the application on its merits, which in part is a fundamental role of this court in the discharge of this court's obligations as indeed are the obligations of this country pursuant to United Nations conventions.
It is indeed regrettable that in this instance within two days of the date of the Tribunal decision the Applicant had spoken to a Departmental officer and conveyed an intention to appeal the Tribunal decision, yet there is no evidence before me that any Departmental officer has provided any or any adequate material to the Applicant to enable her to properly exercise her rights for judicial review. There is no evidence before me that any or any proper attempt was made to assist the Applicant to exercise those rights within the time period.
On the material before me it appears that the Department has simply allowed the time period to elapse, perhaps knowing that the full import and effect of s.477 of the Migration Act would take effect and that submissions could be made to the court this day of the kind that have been made, namely that this court has no jurisdiction. That of course is but one inference that may be drawn from the chronology of events.
I am unable to form a concluded view about that matter on the limited material before me. If the inference is correct, then it is a cause of great and significant concern to this court.
Nevertheless, on the material before me, having regard to the chronology of events, I am satisfied that as a matter of law and the correct application of s.477 of the Migration Act that I have no jurisdiction to entertain this application as it is clearly out of time both in terms of an application being filed within the 28‑day period and further in terms of there being a failure on the part of the Applicant within 84 days of the actual notification of the decision to seek an extension of time.
It follows accordingly that the application should be summarily dismissed pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001 on the basis that there is no reasonable prospect of success, the court having no jurisdiction to hear and entertain the application.
I note in passing that the First Respondent has sought in the alternative summary dismissal on the grounds that there is no reasonable prospect of success. Given that the court has no jurisdiction to hear the application and that the time limit applies, it is not appropriate nor indeed do I have power to now consider that issue.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 10 July 2006
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