S210 of 2003 v Minister for Immigration

[2006] FMCA 669

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S210 of 2003 v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 669

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – show cause application filed out of time and incompetent.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.477
Migration Litigation Reform Act 2005 (Cth)

S210 of 2003 v Refugee Review Tribunal [2006] FCA 210

Applicant: APPLICANT S210 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1067 of 2006

Judgment of: Driver FM

Hearing date: 5 May 2006

Delivered at: Sydney

Delivered on: 5 May 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms B Griffin
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application is dismissed as incompetent.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in accordance with rule 44.15(1) and Item 1(a) of Part 2 of Schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1067 of 2006

APPLICANT S210 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application for an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”).  The RRT decision was handed down on 18 April 2001.  The application before me was filed on 10 April 2006.  The application refers to deemed notification of the RRT decision seven working days from the date of the letter notifying him of it.  However, as has been noted in a number of earlier decisions of this Court, the immediate issue to be resolved is when the applicant was actually notified of the RRT decision. 

2. The Minister filed a response on 26 April 2006. That asserts that the application is out of time. The Minister draws attention to the operation of s.477 of the Migration Act 1958 (Cth) (“the Migration Act”) and the transitional arrangements under Part 2, item 42 of schedule 1 to the Migration Litigation Reform Act 2005 (Cth) (“the Migration Litigation Reform Act”). 

3. The application is supported by an affidavit by the applicant filed on 10 April 2006.  In that he details background facts and circumstances relating to his protection visa application.  His application also discloses previous judicial proceedings both in the High Court and the Federal Court relating to the same RRT decision.  It is apparent from the applicant's participation in those earlier proceedings that he must have been notified of the RRT decision well before 1 December 2005 when the Migration Litigation Reform Act commenced operation.  It follows, and I find, that the applicant is taken to have been actually notified of the RRT decision on 1 December 2005.  He then had 28 days to file his show cause application in this Court.  He had 84 days to apply for an extension of time to file the application.  That period of 84 days ran out on or about 23 February 2006.

4. The present application filed on 10 April 2006 is therefore well out of time and is incompetent.  I sought to explain the applicant's predicament to him during the course of this morning's hearing. 

   
   

   He told me that he did not receive a letter which he regarded as significant.  Ms Griffin handed me a copy of the judgment of Graham J of the Federal Court on 1 February 2006.  The decision bears the medium neutral citation of S210 of 2003 v Refugee Review Tribunal [2006] FCA 210. The applicant confirmed that the letter he was referring to is that dealt with by Graham J at paragraphs 18 and 19 of his judgment. That letter is irrelevant for the purposes of my determination or my jurisdiction in this matter.

5. The application before me is incompetent and must be dismissed.  I will so order.

6. Costs should follow the event. The Minister seeks scale costs under the Federal Magistrates Court Rules, and scale costs in this instance would be $1,000. The applicant sought an opportunity to pay by instalments. That is a matter that he can discuss with the Minister's legal representatives.

7. I will order that the applicant pay the first respondent's costs and disbursements of an incidental to the application in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  16 May 2006