SZIWU v Minister for Immigration

[2006] FMCA 944

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIWU v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 944

MIGRATION – Jurisdiction – application for review of decision of Refugee Review Tribunal where Court has no jurisdiction – effect of s.477 of the Migration Act 1977 (Cth) – extension of time – where application for review filed more than 28 days after decision handed down – where decision made on 3 February 2000 but application not filed until 26 May 2006 – application dismissed.

Migration Act 1958 (Cth), s.477
Migration Litigation Reform Act 2005 (Cth), cl.42 sch.1 part 2

Applicant: SZIWU

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG 1535 of 2006

Delivered on: 26 June 2006

Delivered at: Sydney

Hearing date: 26 June 2006

Judgment of: Scarlett FM

REPRESENTATION

Applicant: Mr Prince (appeared pro bono)

Solicitor for the Respondent: Ms McDonald

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The Application is dismissed.

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 1535 of 2006

SZIWU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal that was made on 3^rd February 2000. The Tribunal affirmed the decision of a delegate of the Minister not to grant protection visas to this Applicant and to another person who is not an applicant in the proceedings before me. 

2. The Applicant filed her application under the Migration Act on

   
   

   26^th May 2006. She accompanied that with an affidavit to which she attached a copy of the Tribunal decision. The affidavit makes two complaints about the substantive decision of the Refugee Review Tribunal. Unfortunately it is not necessary for me to examine that issue because unfortunately the application is out of time.

3. The Migration Act 1958 was amended by the Migration Litigation Reform Act 2005. Amongst other things, s.477 of the Act which provides for a time limit on the filing of applications was amended. Under the present s.477 which applies to this case an applicant must file an application for review of the decision of the Refugee Review Tribunal within 28 days of having been notified of that decision. The Court has a power to extend that time for a maximum of 56 days. This means that any application lodged more than 84 days after actual notification is out of time so that the Court does not have jurisdiction to hear it.

4. This application relates to a decision made on 3^rd February 2000. At that time it was the practice for notification to take place on the date of the decision. The Applicant did not file her application until 26^th May 2006. Now, in such circumstances clause. 42 of Schedule. 1 of Part 2 of the Migration Litigation Reform Act 2005 deems that actual notification took place on 1^st December 2005, which is the date that the amendments under the Migration Litigation Reform Act took place.  So even if a person had actually been notified on 3^rd February 2000, or in the year 2002 or in the year 2004 for example, they are deemed to have been actually notified on 1^st December 2005. 

5. The Court therefore does not have the power to extend the time to lodge an application because the 28 days plus an extension of 56 days provided by s.477 of the Act takes the Court through to 23^rd February 2006. In effect, all pre 1^st December 2005 matters must have had their applications filed by 23^rd February 2006.  If they were not filed by then they are out of time. As this application was not filed until 26^th May 2006 the Court cannot grant an extension of time. It has no power to do so. The Court has no jurisdiction to hear the application.  All that is left for me to do is to dismiss the application for want of jurisdiction.

6. There is an application for costs in the sum of $500.00.  The Applicant has been unsuccessful and the Respondent Minister has been successful. The fixed sum sought of $500.00 is an appropriate figure in the circumstances.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  30 June 2006