S1033 of 2003 v Minister for Immigration & Anor

[2007] FMCA 1921

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1033 OF 2003 v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1921

MIGRATION – Visa – protection visa – application for review of Refugee Review Tribunal decision affirming decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of Pakistan – show cause hearing – previous applications.

PRACTICE & PROCEDURE – Abuse of process – incompetent – out of time.

Migration Act 1958 (Cth), ss.417, 472, 477
Migration Litigation Reform Act 2005 (Cth), itm.42

Minister for Immigration & Citizenship v SZKKC [2002] FCAFC 105

Applicant: APPLICANT S1033 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2831 of 2007

Judgment of: Scarlett FM

Hearing date: 5 November 2007

Date of Last Submission: 5 November 2007

Delivered at: Sydney

Delivered on: 5 November 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents:

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs fixed in the sum of $950.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2831 of 2007

APPLICANT S1033 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

1. This is an application for a review of a Decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was signed on

   
   29^th December 2005

   and handed down on 17^th January 2006.

2. The Applicant says in his application that he was notified of the decision on 17^th January 2006. He applies for an order that the time for making the application be extended under s.477 of Migration Act.

3. The application is out of time and that it was not filed within 28 days of actual notification of the Tribunal's decision.

4. Item 42 of the Migration Litigation Reform Act makes it very clear that the Court's power to extend the time for filing by 56 days under provisions of sub-s.477(2)(a) of the Migration Act does not apply.

   
   

   The application for an extension of time would need to be made within 84 days of actual notification of the Tribunal decision.

5. The solicitors for the respondent Minister submit that the Court has no jurisdiction to hear the application.

6. I am aware of the decision of the Full Court of the Federal Court in Minister for Immigration & Citizenship v SZKKC [2002] FCAFC 105. In that decision Giles J agreeing with Buchanan J said:

   That an actual notification to an applicant of a decision requires physical delivery of a written statement of the decision prepared by the Refugee Review Tribunal to the applicant.

   His Honour went on to say:

   That notification must take place within 14 days of the decision being handed down and referred to sub-s.430B(6)(a) and s.430B.

7. In this case that is exactly what happened. I refer to an affidavit of Angela Margaret Nanson which was filed in Court on 8^th October 2007 to which is annexed a letter from the Tribunal to the applicant's then advisers advising that the decision would be handed down on

   
   

   17^th January 2006. There is also annexed the Tribunal's check-list for handing down the decision on 17^th January 2006.

8. The document makes it clear that the applicant attended the handing down on that day and a copy of the decision was given to the applicant. In the circumstances there has been compliance in the requirement of the legislation for physical delivery to the applicant of the written statement of the decision prepared by the Tribunal within 14 days of it being handed down and indeed on the day it was handed down.

   
   

   And such the time limit in s.477 of Migration Act does apply.

9. The applicant did not commence proceedings until 13^th September 2007 which is well outside the time. Accordingly the Court has no jurisdiction to hear the application. The applicant told the Court that the reason for the delay was that he had made an application to the Minister, presumably under s.417 of the Migration Act. That may well be, but it does not affect the operation of s.477.

10. The applicant told the Court there had been a chance of circumstances in Pakistan to the extent that there is a state of emergency. That is certainly the case. Unfortunately that is a set of circumstances that was not able to be made available to the Tribunal at the time the decision was heard which means the Court cannot take into account.

11. The applicant asked for an extension of time in order to obtain statements from eyewitnesses. The Court cannot take fresh evidence relating to factual matters to do with the substantive application for a visa.

12. Unfortunately for the applicant his application is out of time.

    
    

    Section 472 of the Migration Act applies.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  15 November 2007