SZILV v Minister for Immigration
[2006] FMCA 541
•11 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZILV v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 541 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant – where applicant did not attend tribunal hearing. Delay – Where decision handed down on 20 June 2003 but application not filed until 6 March 2006. |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.424A, 425, 426A, 474
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811
Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82
Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876
SZGQL v Minister for Immigration & Ors [2006] FMCA 446
M172 v Minister for Immigration & Anor [2004] FMCA 23
NAQU v Minister for Immigration and Multicultural Affairs & Anor [2006] FMCA 515
| Applicant: | SZILV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 687 of 2006 |
| Delivered on: | 11 April 2006 |
| Delivered at: | Sydney |
| Hearing date: | 11 April 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Broderick |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is not competent.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,250.00.
I allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 687 of 2006
| SZILV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 27th May 2003. It was handed down on 20th June 2003. The Tribunal affirmed a decision of a delegate of the Minister not to grant a Protection Visa to the Applicant.
Background
The Applicant is a citizen of the People's Republic of China.
He arrived in Australia on the 17th July 1999. He applied for a Protection Visa on the 14th March 2002 but it was refused. He consulted a migration agent whose name appears to be Qi Cheng who is connected with a business known as Immigration and Education Service Centre, Room 303, 431 Sussex Street, Sydney.
The application gave the name and address of the migration agent as the authorised recipient of all correspondence. The Tribunal wrote to the Applicant under the provisions of s.425 of the Migration Act on 15th April 2003 inviting him to attend a hearing of the Tribunal on the 27th May 2003. The Tribunal forwarded the original letter to the Applicant's migration agent and a copy to the applicant at his then home address.
The Applicant did not attend the hearing. The Applicant told the Court that someone rang him and told him about the hearing but he made the decision not to attend. He said he was worried and thought that it might be a public hearing. He thought that this would have a negative impact on him. He told the Court that he telephoned his migration agent who told him that he had better not attend the hearing.
The Applicant did not attend and the Tribunal exercised its power under s.426A of the Migration Act to decide the application without taking any further step to enable or allow the Applicant to attend the hearing.
The decision was handed down on 20th June 2003. The Applicant told the Court that he was not aware of it until late February or early March after he had been taken into immigration detention.
It is clear from a copy of a letter attached to an affidavit sworn 7th April 2006 from Zoë Elizabeth Brauer, solicitor, that the Applicant signed a letter addressed to the then Minister which, whilst undated, appears to have been received in the Minister's office on 12th August 2003. In paragraph one of that letter the Applicant says:
On 20 June 2003 a decision was made by the Refugee Review Tribunal to confirm the original decision made by the DIMIA.
The Applicant said that the agent did not translate the letter for him and that he signed a blank application for review. He said that he believed that the agent was a go between with the Department and he paid him, albeit reluctantly. He said that he was recommended by a friend to this agent.
The evidence makes it quite clear that at the very least the Applicant's agent was aware at all times of the decision of the Refugee Review Tribunal. Whether the Applicant made the decision not to attend the Tribunal himself or whether he was advised by the Migration Agent is something that I cannot finally determine.
In any event, it was a most unwise decision because the Applicant has foregone his opportunity to give evidence and present arguments to the Tribunal which may have led to a successful outcome for his application.
I am of the view that the decision of the House of Lords in Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876, to which I have referred in the decision of SZGQL v Minister for Immigration & Ors [2006] FMCA 446, together with the decision of Bryant CFM in M172 v Minister for Immigration & Anor [2004] FMCA 23 Affairs makes it clear that if a person accepts the advice of his or her migration agent not to attend a hearing when the opportunity is offered, the person then cannot complain of a lack of procedural fairness.
In any event this application does not even go that far because it is out of time. The application was filed at this Court on the 6th March 2006. In a well-drafted submission from the Respondent's solicitors, except for the typing error in the first line of paragraph 16, the situation relating to the law insofar as the current application of s.477 of the Migration Act is concerned, is well set out. I adopt the submissions set out in paragraph seven to 15 inclusive of the Respondent's submission and I quote as follows:
7. On 6 March 2006 the Applicant applied to the Federal Magistrates Court seeking review of the decision of the Tribunal.
8. Section 477 of the Migration Act 1958 as amended by the Migration Litigation Reform Act 2005 (the ‘Act’) provides that an application to the Federal Magistrates Court must be made within 28 days of the actual notification of a Tribunal decision.
9. Section 477(2) permits the Federal Magistrates Court to extend the 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 it is in the interests of the administration of justice to do so.
10. By virtue of the transitional provision in clause 42 part 2 of Schedule 1 of the Migration Litigation Reform Act, where proceedings are commenced on or after the ‘commencement day’ (1 December 2005) in circumstances where:
(a) a migration decision is made before the ‘commencement day’ (1 December 2005); and
(b) the applicant was actually notified of the decision prior to 1 December 2005 then s.477 applies as if actual notification took place on the ‘commencement day’, i.e., 1 December 2005.
11. That is, once it is established that the transitional provision applies the applicant is deemed to have been actually notified of the Tribunal decision on the 1 December 2005.
12. Consequently, any judicial review application must be made within 84 days of 1 December 2005.
13. The date 23 February 2006 is the final day by which any applicant who falls within the transitional provision can make a valid judicial review application. It is the 84th day after 1 December 2005.
14. As applied to this applicant, his application was filed on 6 March 2006 and is therefore outside the 84 day period ending 23 February 2006.
15. Section 477(3) of the Act provides that except as provided for by the above provisions, namely s.477(2) the Federal Magistrates Court must not make an order allowing an applicant to make an application outside that 28 day period.
It is clear that the application has not been filed within the time limit set out in s.477of the Act and it is therefore incompetent. I am referred to the decision of my learned colleague Smith FM in NAQU v Minister for Immigration and Multicultural Affairs & Anor [2006] FMCA 515, handed down 4th April 2006 and with respect, I agree.
The fact is that this application is out of time. The Court has no jurisdiction to extend the time. The Court therefore has no jurisdiction to hear the case.
I note the Applicant complains that he was misled by his migration agent. I propose to direct that a copy of this decision be forwarded to the Migration Agents Regulation Authority. The application is incompetent. The application is dismissed.
There is an application for costs. Costs follow the event. I note the Applicant is detained in Immigration Detention and he is not in a position where he can pay it. Nevertheless I am satisfied that an order for costs should be made.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 18 April 2006
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