SZBWD v Minister for Immigration
[2007] FMCA 432
•23 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBWD v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 432 |
| MIGRATION – Refugee – application out of time. |
| Migration Act 1958, ss.477, 477(1), 477(2) |
| Applicant: | SZBWD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3093 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 23 March 2007 |
| Date of Last Submission: | 22 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Solicitor for the Respondents: | Ms. N. Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The reference to the name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application made on 24 October 2006 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $1,500.
The applicant not file any application seeking review of the delegate’s decision of 6 June 2003 nor the decision of the Refugee Review Tribunal of 23 October 2003 without first obtaining leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3093 of 2006
| SZBWD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised)
I have before me an application filed in this Court on 24 October 2006, seeking an order that the respondent show cause why the remedies sought by the applicant (essentially based on seeking review of a decision of the delegate of the first respondent made on 6 June 2003 to refuse his application for a protection visa, and of the Refugee Review Tribunal (“the Tribunal”) made on 23 October 2006, which found that it did not have jurisdiction to review the delegate’s decision) should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (“the Act”).
The Minister’s Response, filed on 3 November 2006, is that the application be dismissed on the grounds that the application is incompetent, as it has been filed outside the time limits prescribed by s.477(1) of the Act.
It is clear that the Court’s jurisdiction is the threshold issue before the Court today. In relation to the relevant history in this matter, I refer to the affidavit of Nicola Johnson, a solicitor in the employ of the respondent’s solicitors, sworn on 2 November 2006, which was read into evidence before me today. The affidavit provides a chronology of relevant events outlined by annexure “A”:
“BACKGROUND
Applicant born in India 19 June 1958
Applicant arrived in Australia 23 March 2003
DIMIA
Application for protection visa lodged 23 April 2003
Delegate’s decision 6 June 2003
RRT
Application for review lodged 18 July 2003
RRT decision made 23 October 2003
FEDERAL MAGISTRATES COURT – SYG2418 OF 2003
Application for judicial review lodged 10 November 2003
Order of Driver FM dismissing the application with costs 24 November 2003
FULL COURT OF THE FEDERAL COURT – NSD2517 OF 2005
Application for extension of time to file notice of appeal lodged 16 December 2005
Order and judgment of Allsop J dismissing the application with costs 15 March 2006
HIGH COURT – S100 OF 2006
Application for special leave to appeal filed 3 April 2006
Orders of Gummow and Heydon JJ refusing the application with costs 5 October 2006
FEDERAL MAGISTRATES COURT – SYG3093 OF 2006
Application for judicial review lodged 24 October 2006
At the hearing before me today the applicant, who was unrepresented, appeared with the assistance of an interpreter in the Tamil language. The applicant stated that he wanted the Tribunal decision reviewed. He confirmed that he had received notice of the Tribunal decision in October 2003.
The respondent submits that the Court, simply, does not have jurisdiction to hear the application. In this regard, I note that amendments to the Act, made by the Migration Litigation Reform Act 2005 (Cth) (“the reform Act”), provide time limits to be applied to the filing of applications before this Court. Section 477 of the Act provides:
“Time limits on applications to the Federal Magistrates Court
(1)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 deemed) notification of the decision.
(2)The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
(a)an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
(b)the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3)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.
(4)The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.”
The applicant’s current application, filed 24 October 2006, provides that the applicant received actual notification of the delegate’s decision on
8 June 2003. The application is silent on when the applicant received notice of the Tribunal’s decision. I note that irrespective of exactly when actual notification occurred, Schedule 1 Clause 42(a) to the reform Act provides for transitional provisions to apply to decisions made before the commencement day of the reform Act (1 December 2005) in the following terms:“Where proceedings are commenced on or after the commencement day in relation to a migration decision made before the commencement day, and actual notification of the decision is given before the commencement day:
(a)section 477 of the Migration Act 1958 applies as if the actual notification of the decision took place on the commencement day; and
(b)section 477A of that Act applies as if the actual notification of the decision took place on the commencement day; and
(c)section 486A of that Act applies as if the actual notification of the decision took place on the commencement day.”
The reform Act commenced operation on 1 December 2005 and, as such, actual notification of the decision (if it was made prior to that day) is taken to have occurred on that day. In these circumstances, if an application is filed later than 28 days after 1 December 2005
(29 December 2006), and no extension of time is givenextending that
28 day period by up to 56 days pursuant to s.477(2) (until up to
23 February 2006), the application is incompetent before this Court. I note that the applicant has made a request for an order that the time for making the application be extended. However, I further note that the application was filed on 24 October 2006, after the maximum “grace” period allowable under the transitional provisions. In this regard, the applicant’s request in his application, that the Court grant an extension of time to the applicant for the filing of his application, was not made within 84 days of the (deemed) actual notification of the Tribunal’s decision as required by s.477(2)(a), that is, by 84 days after 1 December 2005.
On the evidence before me it is clear that the applicant had actual notice of the delegate’s decision before 1 December 2005. He acknowledges this in his application to this Court by nominating 8 June 2003 as the date he received the delegate’s decision.
In relation to the Tribunal decision the applicant has previously applied for judicial review of the same Tribunal decision in the Federal Magistrates Court on 10 November 2003. The application was dismissed by Driver FM on 24 November 2005 (see annexures “B” and “C” to the affidavit of Ms. Johnson). There is no doubt that the applicant had actual notice of the Tribunal decision, and for that matter the delegate’s decision, at least at the time of commencing proceedings in this Court on 10 November 2003. Therefore, the applicant had actual notice of the Tribunal’s decision and the delegate’s decision before the date now deemed by the relevant legislation as the date of actual notice. The application to the Court now was filed well after the periods (both mandatory and discretionary) set out in s.477 of the Act. As such the application for extension is refused.
Further, in relation to review now by this Court of the delegate’s decision made on 6 June 2003, the Court also lacks jurisdiction pursuant to s.476(2) of the Act. Section 476(2)(a) provides that this Court has no jurisdiction in relation to a “primary decision”. This is defined relevantly in s.476 as a privative clause, or purported privative clause, decision that is reviewable under Part 7 of the Act (whether or not it has been reviewed). The delegate’s decision was reviewable under Part 7 even thought it was not actually reviewed because the Tribunal found, in all the circumstances, that it did not have jurisdiction (because the application to it was made out of time) to do so.
I note in this regard also that Driver FM made reference (at paragraph [9] – at page 15 in annexure “C” to the affidavit of Ms. Johnson) to the applicant seeking review of the delegate’s decision and stated that “he will lose that opportunity in this Court … on 1 December 2005”.
In all, this Court has no jurisdiction to hear the applicant’s complaints about the delegate’s decision of 6 June 2003 and the Tribunal’s decision of 23 October 2006. The applicant plainly had actual notice of both decisions prior to 1 December 2005. His application now filed on
23 October 2006 in relation to both decisions was made outside of the time limits set out in s.477(1) for the making of such applications and outside the time limit set out in s.477(2), in respect of which the Court could consider exercising discretion to extend the relevant time. I agree with the Minister’s submission that the application should be dismissed as incompetent. I dismiss the application on that basis.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate:
Date: 23 March 2007
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