SZAFD v Minister for Immigration
[2007] FMCA 182
•20 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAFD v MINISTER FOR IMMIGRATION | [2007] FMCA 182 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Federal Magistrates Court has jurisdiction to hear application for judicial review. |
| Federal Magistrates Court Rules 2001 r.44.12 Migration Act 1958 (Cth), ss.477; 477(2); 477(3) Migration Litigation Reform Act 2005 (Cth) |
| Applicant: | SZAFD |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File number: | SYG22 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 20 February 2007 |
| Date of last submission: | 20 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2007 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Solicitor for the Respondent: | Mr P. Reynolds, Clayton Utz |
ORDERS
That the applicant pay the costs of the first respondent fixed in the amount of $2500.
That the name of the first respondent be amended to Minister for Immigration and Citizenship.
Direct the registry not to enter any orders in respect of this matter until my ex tempore reasons have been settled.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG22 of 2007
| SZAFD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
This matter was set down for a show cause hearing pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 on 15 February 2007 in respect of the application filed by the applicant in this Court on
3 January 2007 seeking judicial review of a decision of the Refugee Review Tribunal dated 7 January 2003.
The first respondent filed a response on 10 January 2007 identifying previous litigation between the applicant and the first respondent in respect of judicial review of the same tribunal decision.
The first respondent read the affidavit of Patrick David Reynolds, sworn 19 February 2007, together with the exhibit to that affidavit marked PDR1. PDR1 contains a copy of the applicant's application filed in this Court on 25 February 2003 seeking judicial review of the Tribunal's decision, the subject of this proceeding.
That application was heard and determined by this Court on
24 September 2003 and the applicant appeared at that hearing. There were then subsequent appeals in respect of the decision of the Federal Magistrates Court. On 16 December 2003, the Federal Court of Australia dismissed the appeal. On 5 August 2007 the High Court of Australia, dismissed a special leave application lodged by the applicant.
In the circumstances, it is clear that the applicant was notified of the decision of the Refugee Review Tribunal at least by 25 February 2003. Moreover the applicant's application filed on 3 January 2007 in this Court states:
That the applicant was notified of the decision on 8 January 2003.
Section 477 of the Migration Act 1958 (Cth) provides that:
“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 the deemed) notification of the decision.”
Section 477(2) of the Migration Act 1958 (Cth) provides that this Court may extend that 28 day period to a maximum of 84 days from the actual, as opposed to deemed, notification where this Court is satisfied that it is in the interests of the administration of justice to do so.
Section 477(3) of the Act provides that:
“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.”
The Migration Litigation Reform Act 2005 (Cth) deemed notification of the tribunal's decision to be 1 December 2005 in respect of matters where notification occurred prior to that date. The effect of that legislation is that time runs against an applicant from 1 December 2005. An applicant has a maximum of 28 days in which to file an application for review but can seek an extension of time up to a maximum of a further 56 days in accordance with s477(2) of the Migration Act 1958 (Cth).
Plainly, the application filed by the applicant in this Court on 3 January 2007 is outside that time period. In the circumstances, in accordance with s477(3) of the Migration Act 1958 (Cth), this Court has no jurisdiction to make an order extending the time required under the Migration Act 1958 (Cth).
Accordingly, the applicant's proceeding commenced by way of application on 3 January 2007 is dismissed.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 27 February 2007
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