SZIVX v Minister for Immigration

[2006] FMCA 806

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIVX v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 806

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 appear before the Tribunal on the day of the hearing.

PRACTICE & PROCEDURE – Jurisdiction – where Tribunal decision made on 19 September 2003 but application not filed at court until 17 May 2006 – application for extension of time – no jurisdiction to entertain application.

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

Applicant: SZIVX

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1434 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: Phillips Fox

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 $500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1434 of 2006

SZIVX

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 19^th September 2003. The applicant did not attend the Tribunal hearing scheduled for 16^th September 2003. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant did not file his application at this court until

   
   

   17^th May 2006, after he had been taken into immigration detention.

   
   

   In his affidavit, filed on the same day, the applicant claimed that he did not receive an invitation to attend the Tribunal hearing and he did not know that he should have filed an application with the court within 28 days of notification of the decision. The application does not state when the applicant was actually notified.

3. The Minister has filed a Response, opposing the application on the basis that it does not show any reasonable cause of action.

   
   

   The Response points out that the only evidence of notification is the decision cover page, showing that it was made on 19^th September 2003. The Minister asserts that this indicates that actual notification was given before 1^st December 2005, which is the relevant date under the transitional provision in the Migration Litigation Reform Act.

   
   

   The Response submits that an extension of time to apply cannot be granted as the application was not filed within 84 days of

   
   

   1^st December 2005.

Conclusions

1. The application gives no particulars of any jurisdictional error on the part of the Tribunal, merely asserting that the applicant did not receive an invitation to attend the hearing. It is clear from reading the decision that the application was unsuccessful because the applicant did not provide sufficient information to allow the Tribunal to be satisfied that the applicant met the requirements for a protection visa.

2. I am satisfied that actual notification of the Tribunal decision took place after 19^th September 2003 and before 1^st December 2005.

   
   

   The applicant does not deny that he was notified, merely asserting that he did not know he had to file an application within 28 days of notification. It is trite law that ignorance of the law is no excuse.

3. Under s.477(2)(a) of the Migration Act, an application for extension of time must be made within 84 days of actual notification. In this case,

   
   

   s. 477 applies as if actual notification took place on 1^st December 2005, so the application should have been filed by 23^rd February 2006. As the application was not filed until 17^th May 2006, it is out of time and no extension can be granted, even if I were satisfied that it was in the interests of the administration of justice to do so. As the application does not disclose a reasonable cause of action, I cannot be satisfied that it is in the interests of the administration to grant an extension, in any event.

Decision

1. It follows that the application must be dismissed for want of jurisdiction. There is no reason why an order for costs should not be made in favour of the first respondent, and I am satisfied that costs should be fixed in the sum of $500.00.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Sharon K. Polley

Date:  5 June 2006