SZABS v Minister for Immigration

[2006] FMCA 1720

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZABS & ANOR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1720

MIGRATION – Review of Decision by Refugee Review Tribunal – practice and procedure – whether time for filing in this Court has expired in accordance with s.477 of the Migration Act 1958 (Cth) – whether appeal is incompetent.

Migration Act 1958 (Cth), ss.477; 477(2); 477(3)
Litigation Reform Act 2005, para.42
Federal Magistrates Court Rules 2001, r.44.12, sch.1 pt.2

First Applicant: SZABS

Second Applicant: SZABT

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG3075 of 2006

Judgment of: Emmett FM

Hearing date: 16 November 2006

Date of last submission: 16 November 2006

Delivered at: Sydney

Delivered on: 16 November 2006

REPRESENTATION

Applicant appearing on his own behalf

Solicitors for the Respondent: Mr J. Wright, Sparke Helmore Lawyers

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3075 of 2006

SZABS

First Applicant

SZABT

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first respondent seeks an order pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 that the applicant’s proceeding before this Court commenced by way of application filed on 23 October 2006 be dismissed as the Court has no jurisdiction to entertain the application.

2. In the applicant’s application, filed on 23 October 2006, in respect of which he seeks judicial review, the applicant identifies the name of the Tribunal who made the decision as the Refugee Review Tribunal (“the Tribunal”).  The applicant identifies the date of the decision as

   
   

   29 October 2002 and identifies notification of the decision as having been received by the applicant on 29 October 2002. 

3. In the section in the applicant’s application headed “Other Court Proceedings” the applicant identifies a previous application before this Court for review of the Tribunal’s decision and states that that application was made on 21 November 2002 and was dismissed. 

4. Under s.477 of the Migration Act 1958 (Cth) (“the Act”), an application to this Court for judicial review of a decision of the Tribunal must be made within 28 days of the actual notification of the decision. Section 477(2) of the Act allows this Court to extend that 28 day period by up to 56 days, if an application is made within 84 days of the actual notification of the decision, and the Court is satisfied that it is in the interests of the justice to do so. Section 477(3) of the Act provides that, except as provided by s.477(2) this Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application outside that 28 day period.

5. This matter came before me for directions on 8 November 2006, at which time the first respondent’s application for a hearing pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 was set down for hearing this afternoon. Directions were made providing an opportunity for the applicant to file and serve any evidence upon which he may seek to rely in response to the first respondent’s application for a hearing pursuant to r.44.12. Nothing has been received by or on behalf of the applicant since that date.

6. The applicant is unrepresented before me this afternoon, although has the assistance of an interpreter.  The applicant submitted that he had sought to obtain Legal Aid, by way of telephone, however his calls had not been returned.  The applicant submitted that he is not aware of the legal aspects of this case and that that was the reason why he could not comply with the direction for him to file and serve any evidence in response to the first respondent’s application.  I accept that may well be the position that the applicant did make such approach to Legal Aid and was unable to obtain legal advice. 

7. The applicant sought an adjournment in order to have further time to pursue the obtaining of legal advice. However, having regard to the evidence before me and the statutory requirements of s.477, there is no utility in affording the applicant any further time by way of an adjournment. It is plain on the material before me that the matters referred to in the application disclose that the applicant was notified of the Tribunal’s decision and that it was received by the applicant on

   
   

   29 October 2002. The applicant has not asserted to the contrary at any time this afternoon. I note that I explained the provisions of s.477 and the consequences to the applicant before he was invited to say anything in response. Even if the applicant was to provide evidence that satisfied me that he was not in receipt of the notification of that decision on 29 October 2002, the overwhelming inference is that by

   
   

   21 November 2002 he was certainly aware, that being the date upon which he commenced judicial review of the Tribunal’s decision in an earlier proceeding before this Court. 

8. Even if one had any residual concern or doubt about the facts asserted in the applicant’s application, and one extended to him the fullest benefit of being unrepresented and requiring an interpreter, he is met by the transitional provisions of the Migration Litigation Reform Act 2005 at paragraph 42, which states that s.477 of the Act applies as if the actual notification of a decision took place on the commencement date, that being 1 December 2005. The time being 84 days from 1 December 2005 expired many months ago.

9. The applicant’s application filed 23 October 2006 is therefore incompetent and must be dismissed.

RECORDED  :  NOT TRANSCRIBED

1. I note that the Federal Magistrates Court Rules 2001, schedule 1 part 2 being the applicable rule, provides for costs in excess of the sum sought by the first respondent.

ORDERS DELIVERED

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

Associate:  S. Kwong

Date:  20 November 2006