SZBJZ v Minister for Immigration
[2007] FMCA 118
•7 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBJZ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 118 |
| MIGRATION – Objection to competency – application out of time. |
| Migration Act 1958 (Cth) s.477 Migration Litigation Reform Act 2005 Federal Magistrates Court Rules |
| Applicant: | SZBJZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2388 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 7 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 February 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application filed on 28 August 2006 is dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $2,500.
The name of the First Respondent is changed to ‘Minister for Immigration and Citizenship’.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2388 of 2006
| SZBJZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This matter comes before the Court by way of a notice of objection to competency filed by the first respondent on 26 October 2006 objecting to the competency of the Court to consider an application for review of a decision of the Refugee Review Tribunal handed down on 14 August 2003 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
It is contended for the first respondent that the present application to this Court, which was filed on 23 August 2006, is outside the time limits provided for in s.477 of the Migration Act 1958 and does not come within the provisions of sub-s.(2) which permit limited extension of the time for making such applications.
The background to this application is that on 14 August 2003 a decision of the Tribunal was handed down affirming the decision of the delegate not to grant the applicant a protection visa. On 8 September 2003 the applicant sought judicial review of that decision in this Court. In a copy of that application annexed to the affidavit of Ishan Muthalib of 26 October 2006 which is relied on by the first respondent, it is stated that the applicant was notified of the decision that was the subject of the application on 14 August 2003. That application for judicial review was dismissed by Federal Magistrate Driver on 13 May 2005. The applicant then unsuccessfully appealed the judgment of Federal Magistrate Driver in the Federal Court and then sought unsuccessfully special leave to appeal to the High Court.
On 28 August 2006 the applicant filed the current application in this Court. In that application he described the decision in issue as the decision of the Refugee Review Tribunal made on 21 July 2003 and handed down and mailed on 14 August 2003 although under the heading “Date of the Decision” the date of 3 April 2003 was inserted and under the question “Date when notification of the decision was received by the applicant” it is stated that the decision was mailed to the applicant.
The applicant made no submissions in relation to the first respondent’s notice of objection to competency and did not take issue with the contention for the first respondent that he received actual notice of the Tribunal decision prior to 1 December 2005. Nor was any issue raised by the applicant as to the scope or operation of s.477 of the Migration Act.
Section 477(1) relevantly provides that an application to this Court for a remedy to be granted in exercise of the Court’s original jurisdiction under s.476 in relation to a migration decision (see the wide definition of migration decision in section 5) must be made to the Court within
28 days of the actual as opposed to deemed notification of the decision. In cases such as this where the decision in issue was made prior to the commencement of these provisions, transitional provisions of the Migration Litigation Reform Act 2005 are applicable.
Clause 42 of Part 1 of Schedule 2 to that Act in particular is relevant. By virtue of the operation of those provisions where the applicant is actually notified of the Tribunal decision before 1 December 2005 he is deemed for the purposes of s.477 to have been actually notified on
1 December 2005. In this case, despite the lack of clarity in the present application as to the date of notification, in his initial application for review of the Tribunal decision in issue the application stated that the applicant was notified of the Tribunal decision on 14 August 2003. He sought review of that first Tribunal decision on 8 September 2003. In these circumstances I consider it is reasonable to infer that prior to commencement of the proceedings in this Court on 8 September 2003 he had actual notification of the Tribunal decision. Hence the applicant is deemed to have received actual notification of the decision on
1 December 2005.
The current application was made on 28 August 2006 which is not within 28 days of the deemed notification of the decision. In his application the applicant indicated that he sought an extension of time for the making of the application. However he has not addressed, either in the affidavit accompanying his application or elsewhere, the basis for such an application for an extension of time.
In any event, the present circumstances are outside the provisions of s.477(2) as the application for an extension of time was not made within 84 days of 1 December 2005 and hence, consistent with
sub-s.477(3), the Court may not make an order allowing the applicant to make the application outside the 28-day period provided for in
sub-s.(1).
On the material before the Court I am satisfied that the present application was lodged outside the time limits in s.477(1). Hence it is incompetent and the application should be dismissed on that basis. I note that the first respondent’s written submissions also raise, in the alternative, submissions as to abuse of process and that the proceeding is frivolous or vexatious or that it is barred by the doctrines of res judicata, issue estoppel or Anshun estoppel and also a claim that the effect of the prior judicial review proceedings is that the decision is not affected by jurisdictional error and is therefore a privative clause decision.
However, as the application is incompetent and the Court does not have jurisdiction in this matter it is neither necessary nor appropriate for the Court to consider those alternative bases.
The applicant has been unsuccessful in that his application has been dismissed. It is appropriate that he meet the costs of the first respondent The amount of $2,500 which is sought is appropriate in the light of the nature of this and other similar matters and the provisions of the Federal Magistrates Court Rules.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 14 February 2007
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