SZINX v Minister for Immigration

[2006] FMCA 693

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZINX v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 693

MIGRATION – Application for review of Refugee Review Tribunal – refusal of a Protection (Class XA) visa – application dismissed as incompetent.

Federal Magistrates Court Rules 2001 (Cth), rr. 10.01, 13.10
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.476, 477
Migration Litigation Reform Act 2005 (Cth)

Applicant: SZINX

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG855 of 2006

Judgment of: Lloyd-Jones FM

Hearing date: 10 May 2006

Delivered at: Sydney

Delivered on: 10 May 2006

REPRESENTATION

Applicant: The applicant appeared in person with the aid of a Pashto interpreter

Advocate for the Respondents: Ms Kerr

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. The application filed on 22 March 2006 is incompetent and is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements, fixed in the sum of $1,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG855 of 2006

SZINX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Sydney Registry of the Federal Magistrates Court on 22 March 2006 for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 12 July 2005 and handed down on

   
   

   2 August 2005, affirming a decision of a delegate of the first respondent made on 31 January 2005, refusing to grant the applicant a Protection (Class XA) Visa.  The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal, numbered N05/50541.The applicant filed an affidavit sworn on 22 March 2006 in support of his application. 

2. The application seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”). The applicant sets out three grounds of review:

   1.The decision was made contrary to the definition of Refugee Convention.  The Tribunal failed to understand that the Applicant feared physical and social harm because of the religious motivated, or, exploited reasons at the hands of politically very strong people and also at the hands of his government.

   2.The Tribunal made jurisdictional error in reaching its decision in failing to understand that the Applicant’s government is either unable or unwilling to provide Applicant with any kind of protection from the people who are part of the government in Applicant’s province.

   3.The Tribunal failed to understand the ground realities in Applicant’s home country where punishment for these kind of Acts (Applicant’s circumstances) is far too high than what the now (section 292 of Pakistan Penal Code) says.  The Applicant’s circumstances has been given religious colour by his persecutors (JI in Applicant’s case). The Tribunal made a legal error in understanding this factual situation.

3. In the application to this Court, the applicant left the section “Other Court Proceedings” blank.  This is correct and I have not located any previous applications.

4. The Tribunal decision was handed down on 12 July 2005.  Also in the application under the heading “Date when notification of the decision was received by the applicant”, the applicant replied “5 August 2005”.  The application is signed by the applicant but undated. 

5. Under r.10.01(2) of the Rules, the Court has the power to hear and determine all or part of the proceedings on a final basis at the first Court date. This application has been filed since the introduction of the Migration Litigation Reform Act 2005 (Cth), which repealed the Court’s previous broader jurisdiction under s.483A of the Act and introduced a new s.476.

6. The significant problem facing the applicant is in relation to time. As these proceedings were filed under the Act as altered by the Migration Litigation Reform Act, this application falls within the operation of amended s.476. This means that the time limit provided under s.477(1) of the Act applies and an application “must be made to the Court within 28 days of the actual (as opposed to the deemed) notification of the decision”. The Applicant acknowledged that he received the decision of the Tribunal on 5 August 2005. However, for the purposes of determining the operation of this provision I will take that notification to have occurred on 1 December 2005, the date that the Migration Litigation Reform Act became operative. The Court has power under s.477(2) of the Act “to extend that 28 day period up to 56 days” if the application for an extension of time is made within 84 days of the actual notification of the decision, and the Court is “satisfied that it is within the interest of the administration of justice to do so.”

7. The application does not seek an extension of time.  I believe that even if the applicant had been properly informed in the preparation of his application, he would not benefit from the transitional time limit extension.  The decision of the Tribunal was made prior to the introduction of the amendments conferred by the Migration Litigation Reform Act, which commenced on 1 December 2005.  The transitional period, with extension, expired 84 days from the commencement date of the amended provisions, on Thursday 23 February 2006.  This application was not filed until 22 March 2006, which is well outside the operation of the transitional provisions and is clearly incompetent.

8. I note that no affidavit explaining the delay has been filed.

9. Consequently, the application filed on 22 March 2006 must be dismissed on the ground that it was not filed within the 28 days time limit.  Under the provisions of Migration Litigation Reform Act it is also incompetent.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date:  22 May 2006