SZBCF v Minister for Immigration

[2006] FMCA 1096

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBCF v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1096

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of India claiming well-founded fear of persecution – previous application for review.

PRACTICE & PROCEDURE – Jurisdiction – where decision made by Refugee Review tribunal on 30 June 2003 and handed down on 25 July 2003 – where applicant claims to have been notified on 2 July 2003 or 26 August 2003 – where application made more than 28 days after notification – court has no power to grant an extension of time where application filed more than 84 days after notification – no jurisdiction.

Migration Act 1958 (Cth), ss. 474, 477

Migration Litigation Reform Act 2005 clause 42, Sch. 1, Part 2

Applicant: SZBCF

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG 1739 of 2006

Delivered on: 24 July 2006

Delivered at: Sydney

Hearing date: 24 July 2006

Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person

Solicitor for the Applicant: Mr Prince pro bono

Solicitor for the Respondent: Ms Blackman

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $300.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1739 of 2006

SZBCF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal made on 30^th June 2003 and handed down on 25^th July 2003. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa. 

2. The application is out of time. The Applicant filed his application on 20^th June 2006, which is considerably more than 28 days after he says he was notified of the decision. The notification was in fact made in 2003, well before 1^st December 2005. As the notification was made before 1^st December 2005, according to the transitional provisions in clause 42, Schedule 1, part 2 of the Migration Litigation Reform Act 2005, s.477 of the Migration Act applies as if actual notification took place on 1^st December 2005.

3. The application seeks an extension of time. The Applicant, in his affidavit in support, gives no reason why an extension should be granted. He states that:

   “A (sic) applied for judicial review but failed to get justice. I was not represented by any solicitor or barrister…

   Previously I reviewed RRT decision but this time I like to review the DIMIA and RRT together. I believe that DIMIA decision had effect on RRT decision.”

4. The reasons given are not sufficient to show that it would be in the interests of justice to grant an extension of time. Indeed, the application does not appear to show any reasonable cause of action and appears to be an abuse of process, in that it is an attempt to re-litigate a matter that has already been litigated as far as the High Court of Australia.

5. In any event, the court cannot grant an extension of time. Section 477(2) of the Migration Act requires that an application for an extension of time must be made within 84 days of the actual notification. As this is a case where the law deems actual notification to have occurred on 1^st December 2005, the 84 day period expired before the end of February 2006. As this application was not filed until

   
   

   20^th June 2006, the court has no power to grant an extension of time.

6. It follows that the court has no jurisdiction to hear the application. The application will be dismissed.

7. The First Respondent seeks an order for costs in the sum of $300.00. This is an appropriate case for a costs order to be made in favour of the First Respondent as the application cannot succeed. The sum of $300.00 which is sought is, in my view, an appropriate amount. The Applicant is to pay the First Respondent’s costs fixed in the sum of $300.00 and the application will be removed from the list of cases awaiting finalisation.

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

Associate:  Virginia Lee

Date:  1 August 2006