SZISA v Minister for Immigration

[2006] FMCA 1190

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZISA v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1190

MIGRATION – Review of RRT decision − where application for review filed out of time − whether the court has jurisdiction to hear the application.

Migration Act 1958, s.477

Applicant: SZISA

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1109 of 2006

Judgment of: Raphael FM

Hearing date: 10 August 2006

Date of Last Submission: 10 August 2006

Delivered at: Sydney

Delivered on: 10 August 2006

REPRESENTATION

Applicant in Person

Solicitors for the Respondents: Ms E. Warner-Knight
Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $1,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1109 of 2006

SZISA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The application which comes before me today is a notice of motion filed by the first respondent, seeking that the proceedings be dismissed on the grounds that the court lacks jurisdiction to hear the application.  There were other grounds for the application but it is not necessary to deal with these.

2. The decision of the Refugee Review Tribunal to which this application relates was determined on 8 July 2003.  Although the applicant says in his application to the court that he received notice of the decision on that day, he told the court in evidence that he had actually received notice of the result in 2004 when he saw his migration agent.  The applicant believes that his migration agent did not serve him well. 

3. The applicant also said in evidence that although he wanted to appeal the Tribunal’s decision when he heard about it, he realised it was too late.  He told the court that he sought other advice but the migration agent who he contacted required him to obtain all the papers from the previous migration agent, which he says he was unable to do. He says that he eventually obtained the information through a Freedom of Information Act application.

4. Unfortunately for the applicant, the provisions of s.477 of the Migration Act 1958 (Cth) (the “Act”) are clear in the case of an applicant who received notice of an unfavourable decision prior to 1 December 2005. He had 28 days in which to appeal to this court with the possibility of an extension for a further 56 days.  That period had expired prior to 6 April 2006 and therefore this court lacks jurisdiction to hear the application that was made on that day.

5. I dismiss the application.  I order that the applicant pay the respondent’s costs which I assess in the sum of $1250.00.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate: 

Date: