SZBNQ v Minister for Immigration & Anor
[2007] FMCA 859
•4 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBNQ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 859 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. MIGRATION – Visa – protection visa – refusal – proceedings commenced out of time – abuse of process. |
| Federal Magistrates Court Rules 2001, r.13.03A Migration Act 1958, s.477 Migration Litigation Reform Act 2005, sch.1 |
| Applicant: | SZBNQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1393 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 4 June 2007 |
| Date of Last Submission: | 4 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 June 2007 |
REPRESENTATION
No appearance for the applicant.
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Pursuant to r.13.03A(c) the application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $1,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1393 of 2007
| SZBNQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
It is now 2.38 pm. When this matter was called at 2.15 there was no appearance by the applicant. I indicated to the Minister's representative that the Court would adjourn until 2.50 in the event that the applicant was simply running late.
During the adjournment Ms Mafessanti, who is representing the Minister today, was able to speak to the applicant by telephone and he told her, she tells me, that he forgot that the matter was listed today. That conversation was reported to me by my Associate and so the Court resumed sitting at 2.35 as it was apparent that there was no benefit in continuing the adjournment until 2.50.
It is important to keep in mind when considering the applicant's non‑attendance today that the matter was originally listed for a First Court Date on a prior occasion, namely 28 May 2007, which was a week ago today. On that occasion the applicant sent a letter to the Court advising that he had a severe infection in his “mouth and throat and in breathing” and he would not be able to attend that day.
In light of that letter, the matter was adjourned until today for a show cause hearing. The Court wrote to the applicant on 28 May 2007 advising him of the adjourned date. Ms Mafessanti has also advised me that following the adjournment on the last occasion she wrote to the applicant and spoke to him advising him of the adjourned date.
The applicant not appearing today, the Minister seeks dismissal of the proceedings pursuant to r.13.03A(c) of the Rules of Court. In circumstances where the applicant has failed to attend on two occasions, the previous occasion being only a week ago, and his excuse today being that he forgot the matter was listed, and in circumstances where he is seeking a review of the Tribunal's decision that he is not entitled to a protection visa, I am of the view that it is appropriate to dismiss the proceedings for non-attendance.
In coming to that conclusion I note the following matters.
History
In her affidavit sworn 11 May 2007 Ms Mafessanti deposes to the chronology of the applicant's application for a protection visa and subsequent Tribunal hearings and Court processes. It is useful to set out that chronology:
·On 31 July 2002 the delegate of the Minister determined that the applicant was not entitled to a protection visa.
·On 27 August 2003 the Refugee Review Tribunal affirmed the decision of the delegate.
·
In his application to this Court the applicant says that he was advised of the Tribunal decision on 27 August 2003, but the copy of the Tribunal's decision, which is an exhibit to Ms Mafessanti's affidavit, indicates that the decision was handed down on
23 September 2003, so I assume that the applicant could not have actually been notified of it until that day.
·On 30 September 2003 the applicant made an application to this Court seeking review of the Tribunal's decision and on 9 March 2005 Barnes FM dismissed that application.
·The applicant then appealed to the Federal Court where Hely J dismissed his appeal on 28 July 2005.
·On 15 December 2005 the High Court dismissed an application for special leave to appeal.
·On 2 May 2007 these proceedings were commenced.
Noting that the decision of the Tribunal dates from 2003, it is important to take account of the time limits applicable to proceedings in this Court for judicial review of Tribunal decisions. Section 477 of the Migration Act 1958 (“Act”) provides that an applicant has 28 days from notification of the decision within which to bring proceedings in this Court, unless within 56 days after the expiry of that 28-day period the applicant seeks an extension of time. Unless an extension of time under s.477(3) is granted, the application will be out of time if not filed within 28 days.
Section 477 was introduced into the Act in December 2005, but nevertheless, does have relevance to an application which was determined by the Tribunal prior to that time. The Migration Litigation Reform Act 2005 was the Act which introduced s.477 and cl.42 of sch.1 to the Migration Litigation Reform Act provides that:
Where proceedings are commenced on or after the commencement day –
as these were –
in relation to a migration decision made before the commencement day –
as is the case here –
and actual notification of the decision is given before the commencement day –
as happened here –
s.477 of the Migration Act 1958 applies as if the actual notification of the decision took place on the commencement day.
The commencement day referred to in cl.42 is 1 December 2005. Therefore, for applications governed by the Migration Litigation Reform Act any application to this Court for review of the decision of the Tribunal had to be filed by 29 December 2005 unless an extension of time was sought and that extension of time had to be sought by 23 February 2006.
In this case the application discloses that the applicant was notified of the decision on 27 August 2003, although it is more likely that he was not informed until 23 September 2003. Whatever the case, the application in these proceedings was not filed until 2 May 2007 and notwithstanding that the applicant does seek an extension of time, he is too late to do so. The consequence of this is that the application has been filed out of time and the Court has no power to extend the time for commencement of proceedings.
Abuse of process
But, in any event, the chronology of this applicant's claim demonstrates that the current application is an abuse of process. The application is hopeless and is bound to fail.
Conclusion
Having taken these matters into account and given the failure of the applicant to appear in Court twice in seven days, I am satisfied that it is appropriate to dismiss the proceedings pursuant to r.13.03A(c).
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 21 June 2007
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