SZIUR v Minister for Immigration

[2006] FMCA 1068

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIUR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1068

MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – delay of more than 84 days from notification of Refugee Review Tribunal decision to application in Federal Magistrates Court – application for extension of time – application dismissed pursuant to s.477(3).

Federal Magistrates Court Rules 2001, r.44.06(2)(a); sch.1

Migration Act 1958 (Cth), ss.477(1); 477(2); 477(3)

Migration Litigation Reform Act 2005

Applicant: SZIUR

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1315 of 2006

Judgment of: Emmett FM 

Hearing date: 12 July 2006

Date of Last Submission: 12 July 2006

Delivered at: Sydney

Delivered on: 12 July 2006

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent: Ms A. Mansour, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1315 of 2006

SZIUR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first respondent seeks an interlocutory order dismissing the applicant’s application pursuant to rule 44.06(2)(a) Federal Magistrates Court Rules 2001, on the grounds that this Court has no jurisdiction to hear the applicant’s application because the application was filed more than 84 days after notification to the applicant of the Refugee Review Tribunal (“the Tribunal”) decision. Pursuant to s.477(3) of the Migration Act 1958 (Cth) (“the Act”), this Court cannot extend time for filing of an application.

2. On 8 May 2006 the applicant filed an application in this Court seeking judicial review of a decision of the Tribunal dated 12 December 2005[FMCoA2].

3. In that application the applicant states that the date upon which she was notified of the decision was 12 January 2006. 

4. In support of her application the applicant filed an affidavit on 8 May 2006 in which she stated the following:

   “1. I received the decision from the Refugee Review Tribunal on 3 January 2006, and I do not agree with the decision. 

   2. I was not aware of my right to appeal to the Federal Court until recently after I was detained by the Immigration Department. 

   3. I wish my case to be examined by the Federal Court to regularise my immigration status.”

5. On 16 June 2006 the first respondent filed a response in which the first respondent stated that this Court does not have jurisdiction under s.476 of the Act to review the decision where more than 84 days has elapsed between the date of notification of the Tribunal decision to the applicant and the filing of the application in this Court for judicial review of that decision.

6. Section 477(1) of the Act, as amended by the Migration Litigation Reform Act 2005, provides that an application to the Federal Magistrates Court must be made within 28 days of the actual notification of a Tribunal decision. Section 477(2) of that Act permits the Federal Magistrates Court to extend that 28 day period by up to a further 56 days if an application for an extension of time is made within 84 days of notification of a decision, and the Court is satisfied that it is in the interests of the administration of justice to do so.

7. The applicant in her affidavit, sworn on 8 May 2006, and filed in support of her application stated that she was notified of the Tribunal’s decision on 3 January 2006.  In these circumstances, the eighty-fourth day after notification was received by the applicant was around 28 March 2006.

8. Even if I was to have regard to the later date identified by the applicant in her application, it is still well outside the 84 day period provided for by s.477 of the Act.

9. Pursuant to s.477(3) of the Act, unless an application is made within 84 days of notification of the decision, and the Court is satisfied that it is in the interests of the administration of justice to do so, the Court must not make an order which has the effect of allowing an applicant to make an application outside the 28 day period.

10. The limited jurisdiction of this Court and the consequences of s.477 of the Act were explained to the applicant this afternoon at the outset of the hearing. The applicant was invited to make any submission in support of her application. She chose to make none.

11. In the circumstances, I am satisfied that notification of the Tribunal decision to the applicant occurred more than 84 days from the date of the filing by the applicant of the application in this Court seeking judicial review of the decision of the Refugee Review Tribunal handed down on 3 January 2006 and dated 12 December 2005. 

12. In the circumstances, this Court has no discretion to extend the time for filing of an application, and has no jurisdiction to consider the application filed by the applicant in this Court in respect of the Tribunal's decision.  Accordingly, the application is dismissed.

13. The first respondent seeks costs in accordance with the entitlement that would ensue in respect of an interlocutory hearing in an amount of $2500; that being the amount allowed under the Federal Magistrates Court Rules 2001 at sch.1 pt.2 r.1(b). 

ORDERS DELIVERED

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  S.Tsang

Date:  28 July 2006

[FMCoA1]Sylvia - You didn’t make this order on the day, but I thought it appropriate to insert it here.

[FMCoA2]Sylvia – the application says the RRT decision is dated 3 Jan 2006 but it was actually dated 12.12.05