SZITL v Minister for Immigration
[2006] FMCA 1236
•2 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZITL v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1236 |
| MIGRATION – Protection visa – Refugee Review Tribunal – application for extension of time. |
| Migration Act 1958, ss.417, 476, 477 Migration Litigation Reform Act 2005 Schedule 1 pt.2 cl.42 |
| Applicant: | SZITL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOTHER |
| File number: | SYG1208 of 2006 |
| Judgment of: | Phipps FM |
| Hearing date: | 2 August 2006 |
| Date of last submission: | 2 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 2 August 2006 |
REPRESENTATION
| Applicant appearing in person: |
| Counsel for the Respondent: | Ms Z. Brauer |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1208 of 2006
| SZITL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOTHER |
Respondent
REASONS FOR JUDGMENT
This is an application for an extension of time to lodge an application with the court under s.476 Migration Act 1958 (Cth). On 11 January 1999 the applicant lodged an application for a protection visa. On 19 February 1999 a delegate of the Minister refused the application. On 4 March 1999 the applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision. By a decision dated
11 December 2001 and handed down on 9 January 2002 the Tribunal affirmed the delegate’s decision.
The applicant was informed of the decision by a letter of 9 January 2002 from the Tribunal which referred to an applicant’s rights to seek judicial review of the decision. The applicant then made an application for the Minister to exercise his power under s.417 of the Migration Act 1958. The Minister did not exercise his discretion. The application to this court was filed on 27 April 2006. It set out a number of grounds of application and applies for an extension of time under s.477 of the Migration Act 1958.
Section 477(1) requires an application to be made within 28 days of the actual notification of the decision. Sub-section (2) gives the court a power to extend that 28‑day period by up to 52 days, if the application for the extension is made within 84 days of the actual notification of the decision and the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so. Sub-section (3) prohibits the court from granting an extension of time except as provided by subsection (2). Section 477 of the Migration Act 1958 was amended by the Migration Litigation Reform Act 2005 (Cth). The date of commencement of the amendment is 1 December 2005.
Clause 42 of Part 2 of schedule 1 of the Migration Litigation Reform Act 2005 contains transitional provisions. It provides that where proceedings are commenced on or after the commencement day of 1 December 2005 in respect of a decision made before that date and actual notification of the decision was given before that date then s.477 applies as if the actual notification of the decision took place on the commencement day. Notification was at the commencement of 2002, so before 1 December 2005. The day for calculating the commencement of the 84 days under s.477 (2)(a) is 1 December 2005.
The applicant’s affidavit in support of this application contains no evidence that the letter notifying the decision dated 9 January 2002 was not received. The applicant’s application under s.417 was in February 2002 and that application of necessity had to take place after the Tribunal’s decision. It is therefore clear that the applicant was actually notified of the Tribunal’s decision at the latest in February 2002.
The application for extension of time is made on 27 April 2006, that is 96 days after 1 December 2005 and so 96 days after the deemed actual notification date of the decision. The court is prohibited by s.477(3) of the Migration Act 1958 from making an order extending the time for the application to be made. In addition even if there was a discretion, I would not exercise that discretion so as to grant the extension of time. The applicant’s affidavit says that the applicant was not aware of the legal system and didn’t have money to hire a solicitor to act in a court matter. He says he didn’t know that he could file a case in the Federal Magistrates Court on the ground of jurisdictional error.
The applicant has not given a satisfactory explanation for the delay from early 2002 until April 2006 particularly in circumstances where an application under s.417 was lodged. The grounds of application in the application to this court do no more than contest the factual findings of the Tribunal. The applicant claimed to fear persecution in Nepal, his country of residence, because of his political activities in joining the Congress Party. The Tribunal did not accept that the applicant had been a member of the Party or held positions within the Party as the applicant claimed.
To grant an extension of time there must be a satisfactory explanation for delay and there must be some prospects of the application succeeding. Neither of those circumstances exist in this case.
Application has been made for costs. The usual principle that a successful party is entitled to an order for costs should apply. The amount of $2,500 is sought which is the appropriate amount under the scale.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate:
Date: 24 August 2006
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