SZEKC v Minister for Immigration

[2006] FMCA 456

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEKC v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 456

MIGRATION – Review of Refugee Review Tribunal decision – no jurisdiction as application filed out of time and no power to extend time.

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

Applicant: SZEKC

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG791 of 2006

Judgment of: Driver FM

Hearing date: 4 April 2006

Delivered at: Sydney

Delivered on: 4 April 2006

REPRESENTATION

Solicitors for the Respondent: Ms A Radich
Blake Dawson Waldron

INTERLOCUTORY ORDERS

1. The notice of objection to competency filed on 30 March 2006 is upheld.

2. The application filed on 14 March 2006 is dismissed for want of jurisdiction.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG791 of 2006

SZEKC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application seeking an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”).  The RRT decision was handed down on 17 August 2004.  The application to this Court was filed on 14 March 2006.  In that application the applicant asserts that he was notified of the RRT decision on 27 August 2004.  Pursuant to Item 42 of Part 2 of Schedule 1 to the Migration Litigation Reform Act 2005 (Cth) the applicant is deemed to have been notified of the RRT decision on 1 December 2005. On and from that date, s.477 of the Migration Act 1958 (Cth) imposes time limits on applications to this Court. The effect of that section when read with Item 42 is that an application to the Court must be filed within 28 days of 1 December 2005 and that any application for an extension of time must be made within 84 days of 1 December 2005.

2. The present application was filed outside the 84 day period.  The time limits apply whether or not the decision subject to review is a privative clause decision.  It follows and I find that the Court has no jurisdiction to entertain the application before it.

3. By notice filed on 30 March 2006 the Minister objects to the competency of the application.  In a response filed on the same day the Minister asserts that the Court lacks jurisdiction.  I uphold the notice and I accept the response.

4. I will order that the objection to competency is upheld and that the application filed on 14 March 2006 is dismissed for want of jurisdiction.

5. The Minister seeks an order that the applicant pay $800 in legal costs.  Under the Court's scale of costs in migration proceedings $1,000 would be payable.  The Minister properly seeks a lesser amount.  The applicant confirmed that he would pay the costs if ordered.  I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $800.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date:6 April 2006