SZHHJ v Minister for Immigration

[2005] FMCA 1845

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHHJ v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1845

MIGRATION – Visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision that RRT does not have jurisdiction to review the decision refusing to grant the Applicant a protection visa – where delegate of the Minister refused application for visa on 9 June but Application did not apply for review until 15 August 2005 – mandatory time limit.

PRACTICE & PROCEDURE – Parties – non-appearance of party.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.412
Federal Magistrates Court Rules 2001 Rule 13.03A (c)

Applicant: SZHHJ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG 2882 of 2005

Delivered on: 1 December 2005

Delivered at: Sydney

Hearing date: 1 December 2005

Judgment of: Scarlett FM

REPRESENTATION

Applicant: No Appearance

Solicitor for the Respondent: Mr Bird

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The Application is dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules2001 due to the non-appearance of the Applicant.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2882 of 2005

SZHHJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of the decision of the Refugee Review Tribunal that the Tribunal does not have jurisdiction to review the decision refusing to grant the Applicant a protection visa.

2. The Applicant applied to the Department of Immigration and Multicultural and Indigenous Affairs for a protection visa on 11^th May 2005. On 9^th June 2005, a delegate of the Minister refused his application. The application was notified of the decision by a letter dated 9^th June 2005. 

3. On 15^th August 2005, the Applicant lodged an application for review by the Tribunal. After forming the preliminary view that the Tribunal did not have jurisdiction because the application was lodged out of time, the Tribunal wrote to the Applicant on 29^th August 2005 inviting his submissions on the issue. The letter said that the Applicant was taken to be notified of the decision on 21^st June 2005 and the last day to apply to the Tribunal was 19^th July.  Because the Applicant did not apply until 15^th August 2005, his application was out of time. The Applicant replied in writing on 5^th September 2005 and set out a number of reasons why he felt that the Tribunal should exercise a discretion to accept his application for what he described as under exceptional reasons. Unfortunately, the Tribunal does not have that discretion. The time limit that is set out in s.414 of the Act is a mandatory time limit and the Tribunal has no power to extend it nor does the Court. 

4. The Applicant has not attended Court today.  He was given notice of the proceedings, indeed he was present on the last occasion on 14^th November 2005 when I listed the application for hearing this afternoon. He had the benefit of a Mandarin interpreter then.

   
   

   A Mandarin interpreter was provided for today but the Applicant has not appeared.

5. I stood the matter down in the list for a period of at least half an hour and the Applicant has not appeared, no messages have been received from the Applicant, or by anyone on his behalf and the Applicant just has not appeared. I do not know why he has not appeared, and in my view, it is appropriate under Rule 13.03A (c) to dismiss the application.

6. I dismiss the application under Rule13.03A(c) on the basis of no appearance by the Applicant.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  12 December 2005