SZIUS v Minister for Immigration

[2006] FMCA 926

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIUS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 926

MIGRATION – Visa – Protection visa – Refugee Review Tribunal – application for review of Refugee Review Tribunal decision affirming delegate’s decision not to grant a protection visa – where applicant did not attend Tribunal hearing.

PRACTICE & PROCEDURE – Delay – where decision made on 24 February 1998 but application not filed until 8 May 2006 – jurisdiction – where application out of time.

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

Applicant: SZIUS

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1320 of 2005

Judgment of: Scarlett FM

Hearing date: 26 June 2006

Delivered at: Sydney

Delivered on: 26 June 2006

REPRESENTATION

Applicant: Mr Prince (pro bono)

Solicitor for the Respondent: Ms McDonald

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.

2. The Application is dismissed for want of jurisdiction.

3. The Applicant is to pay the First Respondent's costs fixed in the sum of $400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1320 of 2005

SZIUS

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 24^th February 1998. The Tribunal was not satisfied that the Applicant was a refugee and affirmed the decision of the Minister's delegate not to grant a Protection Visa. 

2. This application was filed on 8^th May 2006. The Applicant is seeking an extension of time under s.477 of the Migration Act. He also seeks a writ of a certiorari and a declaration that the decision of the Refugee Review Tribunal was made in excess of jurisdiction and is therefore null and void.

3. The Applicant has filed an affidavit with his application. He has annexed a copy of the Tribunal decision to the affidavit.  He states in his affidavit:

   i)My adviser didn't tell me I should make application with the Federal Court of Australia within 28 days of notification of decision of the RRT. 

   ii)I filed the appeal to the Federal Court of Australia within the time.  I really do not know about my appeal out of time.  I am in detention and very hard for me to get legal advice at the moment.

4. The solicitors for the Respondents have filed a Response, in which they contend that no reasonable cause of action is shown. The Respondents also contend that an extension of time cannot be given, because the application was not filed within 84 days of actual notification as provided by sub-s.477(2) of the Migration Act.

5. The solicitors for the Respondents submit that the only evidence provided in the application as to when the Applicant was actually notified of the Tribunal decision was the cover page of the decision itself, which shows that the decision was made on 24^th February 1998.  They submit that this shows that actual notification was given before 1^st December 2005, which appears likely, so according to the transitional provision in clause 42, Schedule 1 of the Migration Litigation Reform Act (2005), s.477 of the Migration Act applies as if actual notification took place on 1^st December 2005. 

6. The significance of this is that s.477(2) requires that the application for extension of time must be made within 84 days of actual notification. Quite clearly, as the application in this matter was not made until

   
   

   8^th May 2006, it is outside the period of 84 days from 1^st December 2005.  That period expired in late February 2006. It must follow that an extension of time cannot be given. 

7. Whilst the Applicant has said in his affidavit that his adviser did not tell him about the time limit, this will not avail him when his application is more than 84 days late. Quite clearly, this application is more than 84 days late and the Court has no power to grant an extension of time.  Without an extension of time the Court has no jurisdiction to hear the application. Unfortunately for the Applicant, the application must be dismissed for want of jurisdiction. 

8. There is an application for costs. The Applicant has been unsuccessful and the Minister, who is the First Respondent, has been wholly successful.  It is normal in the circumstances for the Minister to seek a costs order in her favour and I see no reason why I should not make an order in this regard. The amount of $400.00 which is sought is well within the scale and is certainly a most appropriate figure. I propose to order that the Applicant is to pay the First Respondent's costs, fixed in the sum of $400.00.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  29 June 2006