SZBSE v Minister for Immigration

[2007] FMCA 909

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBSE & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 909

MIGRATION – Persecution – review of Refugee Review Tribunal decision.

MIGRATION – Visa – protection visa – refusal.

MIGRATION – Tribunal functus officio.

MIGRATION – Tribunal had no jurisdiction as application filed out of time.

Migration Act 1958, s.412
Migration Regulations 1994, reg.4.31
Federal Magistrates Court Rules 2001, r.13.03A

Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301
Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18
SZEBS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 456

Applicants: SZBSE, SZKJF & SZKJG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 892 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

There was no appearance by the Applicants.

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That pursuant to r.13.03A(c), the application is dismissed.

2. That the first applicant pay the first respondent's costs fixed in the amount of $2,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SGY 892 of 2007

SZBSE, SZKJF & SZKJG

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. It is now approximately 10.54 and the matter has been called for a second time.  There is no appearance by the applicants.  When the matter was originally called at 10.20 there was no appearance by the applicants.  At that point the proceedings were adjourned in order that the applicants, should they simply be running late, would have sufficient time to arrive, and also in order that inquiries could be made, both of the Court and by the first respondent’s solicitors. 

2. Ms Mansour on behalf of the first respondent advises me that during the adjournment she has rung the applicants’ mobile telephone number and landline telephone number and on both occasions the call went to a message service.  My Associate has made inquiries of the registry of the Court at Queen's Square and it did not appear that the applicants were there.  Similarly, my Associate has called the matter on Level 7 of the John Madison Tower and on the ground floor and there was no sign of the applicants as a result of those calls.  We are currently sitting in Court 6A on Level 6 of the John Madison Tower. 

3. In the circumstances, the Minister has sought an order that the proceedings be dismissed pursuant to r.13.03A(c) for non-appearance.  I will make such an order. 

4. Before doing so, it is appropriate that I make the following observations which arise out of matters contained in the affidavit of Andrea Maree Mansour sworn 16 April 2007.  Firstly, the chronology of the applicants' claims for protection visas should be noted.  The chronology is this:

   a)on 14 March 2002 the Minister's delegate made a decision refusing the application for protection visas;

   b)on 29 August 2003 the Refugee Review Tribunal made a decision arising out of the applicants' application for review of the decision of the delegate;

   c)on 24 March 2005 this Court made orders in a judicial review proceeding arising out of the Tribunal's decision to affirm the decision of the delegate.  The application to this Court was dismissed by Barnes FM;

   d)on 26 May 2005 Emmett J in the Federal Court dismissed an appeal from the decision of Barnes FM

   e)on 17 November 2005, the High Court dismissed an application for special leave to appeal;

   f)on 2 January 2007 the applicants filed a fresh application with the Tribunal and on 19 February 2007 the Tribunal signed its decision, the subject of these proceedings, in which it held it had no jurisdiction to entertain a further application for review of the delegate's original decision of 14 March 2002. 

5. The basis of the Tribunal's decision that it had no jurisdiction was twofold: the first basis was that the Tribunal had already discharged its function; and the second basis was that, in any event, the application was out of time and should have been lodged by 22 April 2002. 

6. In relation to the Tribunal’s conclusion that it was functus officio, it is important to keep in mind that the delegate's decision was dated 14 March 2002 and the Tribunal made its original decision on 29 August 2003.  There has been no new decision of the delegate and the application to the Tribunal on this occasion is based on a change of circumstances, not on there having been a further decision of the delegate. 

7. The change in circumstances asserted by the applicants in their application to the Tribunal does not give the Tribunal renewed power to review the original decision of the delegate of March 2002.  Logically, that has to be so.  That is also affirmed by the authorities such as Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 and Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18 and in SZEBS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 456.

8. In relation to the Tribunal's conclusion that the application of 2 January 2007 was out of time, the Tribunal said this:

   … the Tribunal is satisfied that the decision notification letter complied with the statutory requirements and that the applicants are taken to have received the notice on 25 March 2002.  Therefore, the last day that the application for review could have been lodged ended on 22 April 2002.

9. That passage is found at page 4 of the Tribunal's decision and refers to when the applicants received notification of the decision of the Minister's delegate. 

10. This finding of fact, that the applicant's time for lodgement of an application to the Tribunal ended on 22 April 2002, is a finding which has not been challenged in these proceedings.  But even if it were, the fact of the prior Tribunal and Court proceedings shows that the applicants had notice of the delegate's decision no later than 8 April 2002 when they filed their first application with the Tribunal.  That date can be found on the second page of the decision of the Tribunal which was made on 29 August 2003 and which is annexure B to Ms Mansour's affidavit. 

11. The combined effect of s.412 of the Migration Act and reg.4.31 of the Migration Regulations provides that the applicants had 28 days following notification of delegate's decision to make their application to the Tribunal.  The Tribunal found that the 28-day period expired on 22 April 2002.  Even without that finding, it is already clear from the facts recited in these reasons that the 28-day period within which the applicants could have made an application to the Tribunal expired in 2002. 

12. For all these reasons, it is clear to me that the Tribunal made no jurisdictional error in its finding it was functus officio or that the application had been brought out of time. 

13. Consequently, there will be an order that, pursuant to r.13.03A(c), this proceeding be dismissed. 

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