SZITX and Minister for Immigration and Anor
[2006] FMCA 908
•15 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZITX & MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 908 |
| MIGRATION – Visa – protection visa – application for review of Refugee Review Tribunal decision – practice and procedure – expiry of more than 84 days from notification of Refugee Review Tribunal’s decision to filing in this Court – no jurisdiction to extend time for filing pursuant to s.477(3) of the Migration Act 1958 (Cth). |
| Migration Act 1958 (Cth), ss.417, 477(1), 477(3); 477 Migration Litigation Reform Act 2005 (Cth), sch.1 pt.2 cl.42 Federal Magistrate Court Rules 2001, r.44.12; sch.1 |
| Applicant: | SZITX |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1255 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 15 June 2006 |
| Date of last submission: | 15 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 15 June 2006 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Solicitors for the Respondent: | Ms B. Griffin, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1255 of 2006
| SZITX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first respondent seeks an interlocutory order dismissing the applicant’s application pursuant to r.44.12 of the Federal Magistrate Court Rules 2001.
On 3 May 2006 the applicant filed an application in this Court seeking a review of a decision of the Refuge Review Tribunal (“the Tribunal”), of which the applicant stated he was notified on 16 November 2004.
On 16 May 2006, the first respondent filed a notice of objection to competency, on the basis that the application was filed more than 84 days after notification of the Tribunal decision to the applicant. The first respondent also filed an amended response on 12 May 2006, the terms of which foreshadowed the competency issue.
The first respondent read the affidavit of Brooke Maree Griffin affirmed on 7 June 2006 and filed on that date. Annexure A to that affidavit is a document dated 16 November 2004, headed “Handing Down Information Form.” It indicates that the applicant was present before the Tribunal on 16 November 2004 and received the decision and reasons for decision and notification letter. Annexure B to Ms Griffin's affidavit is a copy of a letter dated 12 December 2004 from the applicant to the Minister seeking that she exercise her discretion under s.417 of the Migration Act 1958 (Cth) to grant the applicant a visa. That letter stated that the applicant was aware that the Tribunal had found that he was not a refugee.
On 14 June 2006, the applicant filed a document headed “Submissions,” and also annexing the letter to the Minister dated 12 December 2004, the Minister's response dated 27 June 2005 and a copy of the applicant's Refuge Review Tribunal application for review lodged on 27 April 2004. The applicant's submissions contain a statement in the following terms:
“I, [Applicant], was born in Aytaroun, Lebanon, on 03 April 1967. I arrived in Australia on 10 February 2004. On 29 March 2004 I lodged an application for a protection visa (class XA) with the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA). On 05 April 2004 DIMIA refused to grant me a protection visa and on 27 April 2004 I applied for review of that decision with Refugee Review Tribunal (RRT). On 25 October 2004 RRT affirmed decision of DIMIA not to grant me a protection visa. Decision is handed to me on 16 November 2004.
After unfavourable decision my legal representative Mr. Hussein A. Ghaida has advised me to seek The Honourable Amanda Vanstone, Minister of Immigration and Multicultural Affairs, to exercise her discretion under s417 of the migration (sic) Act 1958. I lodged an application for Ministerial appeal on 12 December 2004 (attachments 1 and 2).
I was located by DIMIA officials on 03 January 2006 and taken to the Villawood Immigration Detention Centre. I’ve been told that I am illegal. At that point I didn’t know that I have lost my Ministerial Appeal and that my visa has expired. For several months I was asking my DIMIA officer to give me a copy of the Minister decision but instead I was given the application for the Federal Magistrate Court. I lodged the application for FMC on 24 April 2006.
A few weeks later my DIMIA case officer finally presented me with the copy of the Ministerial decision (attachment 3). He could not give me the proof that decision has been send (sic) to me on the address that was written on the application for Ministerial appeal. That was address of my legal representative Mr. A. Ghaida and it was given to the DIMIA on several occasions. One of them was when I was applying for the Review Refugee Tribunal (sic) (attachment 4). Neither I nor Mr. A. Ghaida were never received (sic) any answer from DIMIA regarding my Ministerial appeal.
I’m hoping that you will allow me to proceed with Federal Magistrates Court as returning to my country of origin will put my life in danger.
Sincerely yours,
[Applicant]
14 July (sic) 2006.”
Pursuant to the transitional provisions of the Act, the applicant is deemed to have been notified of the Tribunal decision on 1 December 2005. However, I am satisfied that, in fact, the applicant was notified of the Tribunal decision on 16 November 2004, in accordance with the information recorded by the applicant in his application filed in this Court, and in accordance with annexure A to Ms Griffin's affidavit.
Section 477(1) of the Act requires that any application for review of the Tribunal decision be made to this Court within 28 days of notification of the decision.
This Court has discretion to extend the 28 day period a further 56 days, if the interests of the administration of justice require. However, once 84 days has expired from the date of notification of the Tribunal decision, s.477 has the effect of removing from the Court any discretion to extend the time for filing of an application beyond 84 days. Moreover, pursuant to Migration Litigation Reform Act 2005 (Cth) Schedule 1 Part 2 Clause 42, notification is deemed to have been given on 1 December 2005, in respect of an application filed after 1 December 2005. The application before this Court was filed on 3 May 2006, more than 150 days after deemed notification of 1 December 2005. In the circumstances, the delay in filing being more than 84 days from 1 December 2005, in accordance with s.477(3), no further extension of time can be granted. Accordingly, the application is dismissed.
The first respondent seeks costs fixed in the amount of $1500. I note that pursuant to sch.1 pt.2 para.1(b) of the Federal Magistrate Court Rules 2001, the costs may be fixed in the sum of $2500 in circumstances where a proceeding is concluded after the first court date for the proceeding and at or before a hearing or at any other interlocutory hearing.
In the circumstances, I am satisfied that the sum sought is appropriate.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Choo
Date: 6 July 2006
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