SZISW v Minister for Immigration

[2006] FMCA 805

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZISW v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 805

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal that it has no jurisdiction to review the decision refusing to grant the applicant a protection visa.

PRACTICE & PROCEDURE – Jurisdiction – where court has no jurisdiction because application is filed out of time – where an extension of time would be futile.

Migration Act 1958 (Cth), ss.412, 477

Applicant: SZISW

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1162 of 2006

Judgment of: Scarlett FM

Hearing date: 29 May 2006

Date of Last Submission: 29 May 2006

Delivered at: Sydney

Delivered on: 29 May 2006

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The application is dismissed for want of jurisdiction.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $1,000.00 and I allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1162 of 2006

SZISW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal made on 23^rd January 2006. The Tribunal decided that it did not have jurisdiction to review the decision of a delegate of the Minister refusing to grant the applicant a protection visa.

Background

1. The applicant is a citizen of Indonesia who applied for a protection visa on 24^th March 2005. On 29^th June 2005 a delegate of the Minister refused his application. The Tribunal said in its decision that the applicant was notified of the decision by letter dated 28^th June 2005.

   
   

   He did not seek a review of that decision until 18^th October 2005.

2. The Tribunal found that the delegate’s decision had been sent to the applicant within 3 working days at the applicant’s correct address, in accordance with s.494B(4) of the Migration Act. Accordingly, the applicant was taken to have received the notice on 8^th July 2005, so the 28 day period prescribed by s.412 for lodging the review application ended on 5^th August 2005. As the application for review was not received by the Tribunal until 18^th October, it was out of time because the prescribed period had expired.

3. The Tribunal found that because the application was received outside the mandatory time limit it was not a valid application and, therefore, the Tribunal had no jurisdiction to review the delegate’s decision.

The application to the court

1. The applicant filed an Application under Migration Act on

   
   

   20^th April 2006, seeking an order that the Refugee Review Tribunal accept his application for review as a valid application. Notwithstanding the fact that the Tribunal’s decision is dated

   
   

   23^rd January 2006, the applicant claims in his application that he did not receive notification of that decision until 14^th March 2006.

   
   

   He seeks an extension of time for making the application under s.477 of the Act.

2. The First Respondent Minister has filed a Response claiming that the application should be dismissed because:

   a)the application has been filed outside the 28 day period specified in s.477 of the Act; and

   b)the grounds of the application do not disclose any jurisdictional error in the tribunal’s decision.

Conclusions

1. Even accepting the applicant’s claim that he was not actually notified of the Tribunal’s decision until 14^th March 2006, and he provides no explanation for this rather extraordinary delay in either his application or his affidavit in support, the application is still out of time. Subsection 477(1) provides that the application must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision. As the application was not filed until 20^th April 2006,

   
   

   it was not filed within 28 days of the applicant’s claimed date of actual notification, which was 14^th March 2006. It is therefore out of time.

2. There is a provision to extend the time by up to 56 days under s.477(2) in certain circumstances:

   a)that an application for an 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. Whilst the application has been made within 84 days of the actual notification, I am not satisfied that it is in the interests of the administration of justice to extend the time. The application for review of the Tribunal’s decision is futile, because the applicant did not apply for review within the time limit prescribed by s.412. That time limit, as the Tribunal decision points out, is mandatory.

4. The application to the Tribunal for review was filed out of time.

   
   

   The application to this court for review of that decision has also been filed out of time. The application to this court will be dismissed for want of jurisdiction.

5. The First Respondent seeks an order for costs in the sum of $1,000.00. I am satisfied that such an order is appropriate and I order accordingly.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  5 June 2006