SZIFW v Minister for Immigration
[2006] FMCA 743
•18 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIFW v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 743 |
| MIGRATION – Where applicant chose not to attend RRT hearing after being invited to do so − where application for judicial review lodged out of time − where applicant did not provide explanation for delay − where jurisdictional error in accordance with SZEEU v Minister for Immigration [2006] FCAFC 2 − whether in interests of administration of justice to grant extension under s.477(2) Migration Act in absence of explanation for delay. |
| Migration Act 1958, s.477 Migration Litigation Reform Act 2005 Item 41 of Part 2 of Schedule 1 |
| SZEEU v Minister for Immigration [2006] FCAFC 2 |
| Applicant: | SZIFW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 314 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 18 May 2006 |
| Date of last submission: | 18 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2006 |
REPRESENTATION
| Applicant in Person |
| Counsel for the Respondent: | Mr Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $3000.00 pursuant to Part 21 Rule 21.02(2)(A) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 314 of 2006
| SZIFW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of the Peoples Republic of China. He had a visa which took him in and out of Australia and he last arrived in this country on 22 January 2003. On 23 January 2003 he lodged an application for a protection (class XA) visa with the Department of Immigration & Multicultural Affairs. On 28 March 2003 a delegate of the Minister refused to grant a protection visa and on 1 May 2003 the applicant applied for review of that decision.
On 4 July 2003 the Tribunal wrote to the applicant informing him that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to come to a hearing. On 24 July 2003 the Tribunal received a response to the hearing invitation indicating that the applicant did not want to come to a hearing. On 11 September 2003 the Tribunal determined to affirm the decision of the delegate and handed that decision down on 7 October.
Although the applicant was informed in the letter which enclosed the decision that he was able to make a claim for review by the Federal Court or this court or the High Court, he did not take that step and remained in Australia until he was taken into immigration detention upon a date of which I am unaware but was presumably before 1 February 2006, being the date upon which he made the application to this court.
In late 2005 the Parliament of Australia passed the Migration Litigation Reform Act 2005. Amongst the provisions of that Act was an amendment to s.477 of the Migration Act 1958 which provided as follows:
“477 (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.”
Pursuant to the transitional provisions in Item 42 of Part 2 of Schedule 1 of the Migration Litigation Reform Act 2005, given that these proceedings were commenced after the commencement day of that Act in relation to a decision made before the commencement day and an actual notification of the decision was given before the commencement day, the applicant is deemed to have been notified of the decision for the purposes of the time limitation provision on 1 December 2005.
The time limit pursuant to s.477(1) therefore expired on 28 December 2005. The applicant was 34 days out of time when he lodged his application.
The first point I have to consider in relation to this matter is whether or not I should grant the extension which I am allowed to grant pursuant to s.477(2). I note that I have to be satisfied that it is in the interests of the administration of justice to do so. It is clear that in passing the amending legislation the parliament thought that the ability of applicants to make applications without any time limit upon them was not a matter that was conducive to the good administration of justice. It follows that in order for the court to be satisfied that an extension should be granted some explanation must be received from the applicant. I would go further: the explanation that is received from the applicant must be made in such a way that it can be questioned by the respondent if the respondent so wishes. If an explanation is provided then consideration of its satisfactoriness can take into account such matters as the likelihood of success in the proceedings if they were allowed to continue.
In this case I am faced with a dilemma. The respondent has accepted that a jurisdictional error of the type found by the Full Court in SZEEU v Minister for Immigration [2006] FCAFC 2 has occurred but the applicant has provided no explanation of the reason for the delay.
Although I have previously expressed views, indeed strong views, in relation to the exercise of my discretionary powers to grant prerogative writs in cases where a jurisdictional error is found, these views were expressed in a situation where there was no breach of the provisions of s.477. Because of the clear purpose of the Parliament in passing the amending legislation, I do not regard the question as to whether to exercise my discretion to grant an extension of time to be guided by the views that I have previously expressed concerning the exercise of power under prerogative writs. I think that the Parliament wants me to look only at the interests of the administration of justice.
Of course the administration of justice will take into account many things including the possible risk to the life of the applicant should he be returned to his country of origin. But that consideration must take into account the clear intention of the legislation. The Parliament considers that it is appropriate that these cases be brought to hearing as speedily as possible, but recognises that in some circumstances this may not be possible. If the applicant had provided me with some explanation I would have been minded to assist, given the known jurisdictional error. But he has not done so. He has given me additional evidence relating to the situation in China and he has stated that his parents and wife have warned him not to come home. But it is not clear when those warnings were given and in particular what the situation was in the years between 2003 and 2006.
Because no explanation for the delay has been given it would not to my mind, be in the interests of the administration of justice to grant the applicant leave to file the application out of time. The filing of the application on 1 February 2006 is therefore invalid and of no effect and I must not entertain the application. I dismiss the application and I order that the applicant pay the respondent's costs, which I assess in the sum of $3000.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM.
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