SZCEM v Minister for Immigration
[2007] FMCA 1009
•21 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCEM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1009 |
| MIGRATION – Refugee – application out of time – Tribunal decision previously subject of judicial review – application dismissed. |
| Migration Act 1958, ss.476, 477(1), 477(2), 477(2)(a), 477 |
| SZCEM v Minister for Immigration & Anor [2006] FMCA 102 SZCEM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 536 SZCEM v Minister for Immigration & Multicultural Affairs & Anor [2006] HCA Trans 696 |
| Applicant: | SZCEM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3877 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 21 May 2007 |
| Date of Last Submission: | 16 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 21 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Solicitor for the Respondents: | Ms. A. Nanson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 22 December 2006 is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $2,500.00.
The applicant not be allowed to file any further application related to the Tribunal’s decision made on 23 October 2003 without leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3877 of 2006
| SZCEM |
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 22 December 2006, seeking an order that the respondent show cause why the remedies sought by the applicant should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (“the Act”). The application essentially seeks review of a decision of the Refugee Review Tribunal “the Tribunal” signed on 23 October 2003, and handed down on 18 November 2003, to affirm a decision of a delegate of the first respondent to refuse the grant of a protection visa to the applicant.
The Minister’s Response, filed on 10 February 2007, 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 ss.477(1) and (2) of the Act. Further, the Minister’s Response notes that there have been other judicial review proceedings in relation to the decision.
In relation to the relevant history in this matter, I refer to the affidavit of Angela Margaret Nanson, a solicitor in the employ of the respondent’s solicitors, affirmed on 15 January 2007, which was read into evidence before me today. I note that applicant previously sought judicial review in relation to the Tribunal’s decision. (For the Tribunal’s decision, see Annexure “A” to the affidavit of Ms. Nanson and the Annexure to the applicant’s affidavit of 22 December 2006). This matter was previously heard and dismissed with costs by Driver FM in SZCEM v Minister for Immigration & Anor [2006] FMCA 102 (Annexure “B” to the affidavit of Ms. Nanson). The applicant was then unsuccessful on appeal: see French J. in SZCEM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 536 (Annexure “C” to the affidavit of Ms. Nanson). On 14 February 2006, the High Court dismissed an application for special leave to appeal the Federal Court decision (see SZCEM v Minister for Immigration and Multicultural Affairs & Anor [2006] HCA Trans 696 and Annexure “D” to the affidavit of Ms. Nanson).
In all the circumstances, it is clear that this Court’s jurisdiction is the threshold issue before the Court today. 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 for 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 on 22 December 2006, states on its face that the applicant received actual notification of the Tribunal’s decision on 18 October 2003.
I note that 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 made later than 28 days after 1 December 2005
(29 December 2006), and no extension of time is given extending that 28 day period by up to 56 days pursuant to s.477(2) of the Act (until up to 23 February 2006), the application is incompetent before this Court. I note that regardless of whether the applicant requests an order that the time for making the application be extended, the application was filed on 22 December 2006, after the maximum “grace” period allowable under the transitional provisions. In this regard, any request 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 actual notification of the Tribunal’s decision as required by s.477(2)(a) of the Act, that is, by 84 days after 1 December 2005.At the hearing, the applicant appeared in person and was assisted by an interpreter in the Tamil language. Ms. Nanson appeared for the first respondent.
The applicant stated, simply that he could not go back to India.
On the evidence before me it is clear that the applicant had actual notice of the Tribunal’s decision before 1 December 2005. He acknowledges this in his application to this Court by nominating 18 November 2003 as the date he received notice of the Tribunal’s decision. This is confirmed by the fact that the applicant appeared in person before FM Driver in the Federal Magistrates Court in relation to the same Tribunal decision. To have done so, he clearly would have had notice of the Tribunal’s decision at least as at that time. Therefore, the applicant had actual notice of the Tribunal’s decision before the date now deemed by the relevant legislation as the date of actual notice, that is, at 1 December 2005.
With reference to s.477(1) of the Act, the applicant has not filed his current application within 28 days of 1 December 2005. In relation to the application for an extension of time, s.477(2) of the Act provides that such an extension may be granted where the Court considers that it is in the interests of the administrator of justice to do so. However, any such application for an extension must be made, and if successful would only apply to the period of a further 56 days; that is a total of 84 days from 1 December 2005. Any such application for an extension would need to have been made on or before 23 February 2006. This was clearly not done. The application to the Court now was filed well after the periods (both mandatory and discretionary) as set out in s.477 of the Act.
In all, this Court has no jurisdiction to hear the applicant’s complaints in respect of the Tribunal’s decision of 23 October 2003. The applicant plainly had actual notice of the Tribunal decision prior to 1 December 2005. His application now filed on 22 December 2006 in relation to the Tribunal decision 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 thirteen (13) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Dawnie Lam
Date: 28 June 2007
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