SZDQZ v Minister for Immigration

[2007] FMCA 86

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDQZ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 86

MIGRATION – Objection to competency – application out of time.

Migration Act 1958 (Cth), s.477
Migration Litigation Reform Act 2005 (Cth)

SZBVC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 834
SZEXC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1065

Applicant: SZDQZ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2826 of 2006

Judgment of: Barnes FM

Hearing date: 24 January 2007

Delivered at: Sydney

Delivered on: 24 January 2007

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Nil

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed as incompetent.

2. The applicant shall pay the first respondent’s costs fixed in the sum of $2,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2826 of 2006

SZDQZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter comes before the court by way of a notice of motion filed by the first respondent on 8 November 2006 in relation to an application for review of a decision of the Refugee Review Tribunal (the Tribunal) affirming a decision of the delegate of the first respondent not to grant the applicant a protection visa. The notice of motion seeks orders that the application for judicial review filed on 3 October 2006 be dismissed on a number of grounds, in particular, on the basis that s.477(1) of the Migration Act 1958 (Cth) applies and the application is incompetent.

2. Relevantly, the background to these proceedings (as set out in the affidavits of Nicola Johnson filed on 27 October 2006 and 24 January 2007 on which the respondent relies) is that on 12 December 2002 the Tribunal handed down a decision affirming the decision of the delegate of the first respondent.  On 16 January 2003 the applicant commenced proceedings in the High Court seeking review of the Tribunal decision.   

3. The High Court remitted the matter to the Federal Court and on 30 April 2004 Emmett J ordered that the draft order nisi be refused.  On 26 May 2004 the applicant lodged an application for judicial review of the same Tribunal decision in the Federal Magistrates Court.  That application was dismissed by Federal Magistrate Nicholls on 29 August 2005.  The applicant appealed and on 13 February 2006 Madgwick J sitting as the Full Court of the Federal Court dismissed the appeal.  On 10 March 2006 the applicant lodged an application for special leave to appeal in the High Court.  On 7 September 2006 Hayne and Crennan JJ dismissed the application for special leave to appeal. 

4. On 3 October 2006 the applicant lodged the present proceedings, an application for judicial review of the same Tribunal decision, in this court. Section 477(1) of the Migration Act 1958 provides that an application to this court 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.  Under sub-ss.(2) and (3) the court may extend that 28-day period by up to 56 days if an application for an extension of time is made within 84 days of the actual notification of the decision and the court is satisfied it is in the interests of the administration of justice to do so.  The court may not otherwise extend the time limits.

5. In this instance this is a decision that was made before s.477 in its present form came into effect on 1 December 2005. The combined effect of s.477 and transitional provisions, in particular clause 42 of Part 2 in Schedule 1 to the Migration Litigation Reform Act 2005, is that if the court can be satisfied that the applicant was actually notified of the Tribunal decision before 1 December 2005 the decision is deemed to have been actually notified to the applicant on 1 December 2005 and time for the purposes of the time limits will run from that date. 

6. Taking into account the 28-day time limit and the 56 days referred to in sub-s.(2) of s.477, it has been held that these provisions mean that applications in relation to decisions actually notified before 1 December 2005 are incompetent if filed on or after 24 February 2006; see SZBVC v MIMIA [2006] FMCA 834 at [17] per Federal Magistrate Smith.

7. In his application for review of 3 October 2006 the applicant stated that he received notification of the Tribunal decision on 19 December 2002. In his oral submissions he said he did not get the letter in time and that is why he was late. When asked what letter he was referring to he said he was referring to the interview letter, which I take to be a reference to the letter from the Tribunal inviting him to attend the Tribunal hearing. He then submitted that he also received the decision letter late. He made no submissions about the operation of s.477.

8. However, the applicant stated in his application for review that he received notification on 19 December 2002 and commenced proceedings in the High Court on 16 January 2003.  After those proceedings were dismissed he commenced fresh proceedings in this court on 26 May 2004 which, as indicated, he pursued through the Full Court of the Federal Court and sought special leave to appeal to the High Court.  In these circumstances I am satisfied that it is reasonable to infer that the applicant received such actual notification of the Tribunal decision prior to commencing the proceedings in the High Court on 16 January 2003 and this is deemed to have been notified on 7 December 2005.

9. On this basis, as the current application was not filed until 3 October 2006, it is outside the time limit in s.477(1) and also outside the provisions for the extension of time in s.477(2). In these circumstances the court has no discretion to extend the time as sought by the applicant in his application of 3 October 2006. I note in that respect that s.477(1) applies not only to privative clause decisions but also, by virtue of the definition of migration decision in s.5 of the Migration Act, to a purported privative clause decision or a non‑privative clause decision.

10. I also note that this cannot be said to be a case where the application of the time limits has deprived the applicant of an opportunity to have the merits of his case for review of the Tribunal decision dealt with, given the prior history of review of the same Tribunal decision; see SZEXC v MIMIA [2006] FCA 1065 at [7].

11. The present application is clearly incompetent.  That is sufficient to dispose of this matter and it is neither necessary nor appropriate for me to consider the alternative bases on which summary dismissal is sought, being res judicata, issue estoppel, Anshun estoppel and abuse of process. 

12. The first respondent seeks costs.  The amount sought, which I note is less than the amount provided for in the Schedule to the Federal Magistrates Court Rules, is appropriate in light of the nature of this and other similar matters.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  7 February 2007