SZGCP v Minister for Immigration
[2005] FMCA 1130
•3 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGCP & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 1130 |
| MIGRATION – Application for summary dismissal – where applicant was out of time in seeking review by RRT of delegate’s decision – where applicant waited eight years after RRT decision to commence these proceedings. |
| Federal Magistrates Court Rules Migration Regulations |
| Tabet v Minister for Immigration Federal Court of Australia unreported |
| Applicant: | SZGCP & SZGCQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG987 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 3 August 2005 |
| Date of Last Submission: | 3 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 3 August 2005 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $1,200.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG987 of 2005
| SZGCP & SZGCQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
I have before me a notice of motion issued on 13 July 2005 by the applicant Minister seeking summary dismissal of an application made to this court on 20 April 2005 for review of a decision of the Refugee Review Tribunal made on 10 September 1997 in which the Tribunal determined that it did not have jurisdiction to review a decision of the delegate not to grant the applicant a protection visa.
The applicant lodged her application for a protection visa on 28 December 1995. She is a national of Fiji. On 29 March 1996 a delegate of the Minister determined that she was not a refugee and sent her a letter to that effect on 29 March 1996. Nothing further was heard from the applicant until 21 July 1997 when she made an application for review of that decision to the Refugee Review Tribunal.
Under Regulation 4.3(1) of the Migration Regulations, as in existence at the relevant time, an application for review must be lodged at a registry of the Tribunal no later than 28 days of notification of the decision. Regulation 5.03 at the relevant date, provided that:
“A document which meets the legislative requirements for notification is taken to have been received seven days after the date of the document, provided that it is posted within seven days after that date.”
The Tribunal noted that in this case, the Department had provided evidence that the documents notifying the applicant of its decision were posted on 4 April 1996, ie, within seven days of their date. The Tribunal concluded that if the application for review was to be valid it had to be given to the Tribunal no later than 3 May 1996.
The Tribunal concluded as follows:
“In this case, all requirements for a valid notification have, on the evidence before the Tribunal, been met and the documents notifying the applicant of the decision, refusing her a protection visa were posted within seven days of their date. The Tribunal is bound by the provisions of the Act and Regulations. There is no provision in the legislation for an extension of time to be granted. The Tribunal has no discretion to extend the period within which an application must be given to is: Coung Van Nguyen v M.W. Gerkens, Refugee Review Tribunal, unreported, Full Federal Court, 24 April 1997 per Marshall J at 13. The application in this case was lodged more than a year after the period for lodgment had expired. It is clearly out of time and the Tribunal has no jurisdiction to consider it.”
Although the applicant appears to have made several other applications of various types to the Migration Department, nothing more was heard about her application for refugee status until this application dated 20 April 2005. The respondent Minister believes that any application now made is so clearly bound to fail and that it is appropriate that the court exercises its discretion under Rule 13.10(a) or (c) to dismiss the proceedings.
It seems to be unchallengeable that the time limits for filing an application before the Refugee Review Tribunal are mandatory and inviolable. In Tabet v Minister for Immigration, Federal Court of Australia unreported per Mansfield J 23 June 1997, His Honour said at page 7, after considering the regulations and the possibility of straining them in order to provide a beneficial interpretation for the applicant:
“Accordingly, although it would be appropriate to strain to adopt an interpretation that the relevant provisions which avoids the sort of hardship which the present application amply demonstrates, I do not think there is room for doubt. Both the clear words of the relevant provisions, and other decisions, lead me to the view that this is a proper matter to exercise the power available under O20 r20 of the Rules.”
As it is clear that the applicant's case has no prospects of success, without even giving consideration to any question of why the court should entertain an application made some 8 years after the decision upon which review is sought, I am satisfied that this is an appropriate case in which to evoke Rule 13.10(a) of the Federal Magistrate Court Rules.
I therefore dismiss the substantive application and order that the applicant pay the respondent's costs which I assess in the sum of $1,200.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
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