SZISG v Minister for Immigration - [2006] FMCA 864

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZISG v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 864

MIGRATION – Visa – protection visa – Refugee Review Tribunal – jurisdiction – application for review of Refugee Review Tribunal where Court has no jurisdiction – effect of s.477 of the Migration Act 1958 (Cth) – extension of time – where application for review filed more than 28 days after decision handed down.

Migration Act 1958 (Cth), ss.426A, 477
Migration Litigation Reform Act 2005 (Cth) Sched. 1, Part 2,cl. 42

Applicant:

SZISG

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1123 of 2006

Judgment of:

Scarlett FM

Hearing date:

25 May 2006

Date of Last Submission:

25 May 2006

Delivered at:

Sydney

Delivered on:

25 May 2006

REPRESENTATION

The Applicant:

Appeared in person

Solicitors for the Respondents:

Phillips Fox

ORDERS

The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed for want of jurisdiction.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1123 of 2006

SZISG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

This is an application for review of a decision of the Refugee Review Tribunal that was made on 7^th June 2004. It appears to be out of time as the application to the Court was not filed until the 18^th April 2006.
The applicant is a citizen of the People's Republic of China who arrived in Australia on the 23^rd October 2003 and then applied for a Protection Class XA Visa. The application was refused on the

12^th December 2003. The applicant sought a review of that decision by the Refugee Review Tribunal by lodging an application for review on 7^th January 2004. The Tribunal wrote to the applicant on the

10^th March inviting her to attend the hearing of the Tribunal.
Whilst the applicant originally advised the Tribunal on the 2^nd April she would be attending the hearing, the applicant's adviser informed the Tribunal in writing on the 7^th June 2004 that the applicant did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision without taking any further action to allow her to appear.
The Tribunal then exercised its power under s.426A of the Migration Act to determine the matter on the basis of the material before it.

The Tribunal was not satisfied that the applicant had a well founded fear of persecution within the meaning of the Refugee's Convention and affirmed the decision of the Minister's Delegate not to grant the applicant a Protection Visa.
The applicant commenced proceedings in this Court by means of filing an application and an affidavit in support on the 18^th April 2006.

At that stage she was in immigration detention at the Immigration Detention Centre at Villawood, New South Wales. The applicant told the Court that she had been taken into detention around about the

21^st or the 23^rd March. She explained her delay in commencing proceedings as being caused by the length of time it took to obtain a copy of the Tribunal decision.
In the applicant's application she sets out three grounds for review. They are as follows:
i)I am a citizen of China. If I go back to China I will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the status of refugees and the 1967 Protocol relating to the status of refugees.
ii)Member of the RRT failed to understand my claims and failed to consider relevant matters. Further particulars to be provided.
iii)The respondent refused to grant my Protection Visa without any proper grounds and proper investigation.
In the applicant's affidavit of support the applicant says:
i)I can't speak English. My adviser didn't tell me I should make an application with the Federal Court of Australia within 28 days of notification of decision of the RRT.
ii)
I failed the appeal to the Federal Court of Australia (that should I believe refer to filed the appeal) within the time.

I really do not know about my appeal out of time.
The applicant told the Court today that she had had no contact with the Migration Adviser. She found out about the Tribunal decision in

June or July 2004. The adviser, she said, did everything. She made no further submissions.
The respondent Minister has filed a response challenging the applicant's claim; first of all on the basis that it amounts to an attempt to re-argue the merits of the RRT decision. The response also refers to the fact that the applicant seeks an extension of time under s.477 of the Migration Act. The response says:
The applicant only claims that his adviser - - -
That should be "her adviser":
- - - did not tell her to seek judicial review within 28 days.
The Minister relies on the transitional provisions in sch.1, pt.2 of the Migration Litigation Reform Act (2005) relating to s.477 of the Act which apply in circumstances where actual notification was given before the 1^st December 2005 to deem that notification took place on that date.
The respondent goes on to submit that no proper reasons were given to explain the delay in filing this application or why it would be in the interests of justice to grant this extension of time. In addition,

sub-s.477(2)(a) requires that the application for an extension of time must be made within 84 days of actual notification. This application, filed on the 18 April 2006 was not filed within 84 days of actual notification of 1 December 2005 therefore the first respondent contends that an extension of time should not be granted. In my view, an extension of time cannot be granted.
Section 477 of the Migration Act was amended by the Migration Litigation Reform Act (2005). Amongst other things; that Act amended s.477 of the Migration Act which provided time limits on applications to the Federal Magistrates Court. The new section provides that an application to this Court for relief to be granted in respect of the Court's original jurisdiction under s.476 of the Act 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.
However, as far as matters where a decision was handed down before

1^st December 2005, part two of schedule one of the Migration Litigation Reform Act refers in clause 4 to transitional provisions where a Migration decision was made before the commencement date.
The commencement day for the Act was the 1^st December 2005.

Clause 42 provides:
Where proceedings are commenced on or after the commencement day in relation to a Migration decision made before the commencement day and actual notification of the decision was given before the commencement day:
(a) S.476 of the Migration Act (1958) applies as if the actual notification of the decision took place on the commencement day.
In this case the applicant has conceded that she was informed of the decision about June or July 2004 which is the date that pre-dates the commencement day for the Act, namely 1^st December 2005. In other words; the applicant is deemed to have been made aware of this decision on the 1^st December 2005.
Quite clearly then an application under this Act for review was not made within 28 days of the appropriate date as provided by s.477(1). The applicant did not file her application within 28 days of the

1^st December. I note that sub-s.(2) allows the Court to extend that

24 day period by up to 56 days if, amongst other things, the Court is satisfied that it is in the interests of the administration of justice to do so.
Quite clearly, for the applicant, to take advantage of the provisions of sub-s.477(2), she would have had to have filed her application within 84 days of the 1^st December. Clearly, she has not done so as that period of time expired on the 23^rd February 2006. Subsection (3) to that section makes it clear that except as provided by sub-s.(2) the Court must not make an order allowing - or which has the effect of allowing an applicant to make an application outside that 28 day period unless it is within the strict times provided in sub-s.(2).
This application is outside the maximum time period. The applicant has conceded that she was aware of the decision in June or July 2004 which is well before 1^st December 2005. The application is therefore out of time and the Court has no jurisdiction to extend that time.

The Court has therefore no jurisdiction to entertain the application. The application will be dismissed.
There is an application for costs in the sum of $700.00 on a fixed costs basis. I am satisfied that that is an appropriate figure. The applicant is to pay the first respondent's costs fixed in the sum of $700.00.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 9 June 2006