SZIXV v Minister for Immigration
[2006] FMCA 1847
•28 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIXV v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1847 |
| MIGRATION – Review of Refugee Review Tribunal decision – application for extension of time “five to six years late” – application refused – Federal Magistrates Court Rules provide for dispensation from compliance with the Rules, not the Act. |
| Migration Act 1958 (Cth), ss. 476, 477 Migration Litigation Reform Act 2005 (Cth), Part 2, Item 42, Schedule 1 Federal Magistrates Court Rules, r.r.1.06, 44.06 |
| Applicant: | SZIXV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1643 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 28 November 2006 |
| Date of last submission: | 28 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 28 November 2006 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the Respondent: | Ms. H Dejean of Australian Government Solicitor |
THE COURT ORDERS THAT:
The applicant's application under the MigrationAct dated 8 June 2006 and the application for extension of time are dismissed.
The applicant pay to the first respondent its costs in this matter fixed at $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1643 of 2006
| SZIXV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This application filed on 8 June 2006, seeks an order that the respondent show cause why a remedy should not be granted in the exercise of the Courts jurisdiction under s.476 of the Migration Act (“the Act”), in respect of the decision of the Refugee Review Tribunal (the “Tribunal”) dated 12 October 1999.
The applicant has submitted that he received actual notification of the Tribunal decision some “five to six years ago”.
S.477 of the Act sets out time limits on applications to the Federal Magistrates Court. The section provides as follows:
(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision. (underline added).
(2) The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
(a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
(b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3) Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.
(4) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.
The application for review is opposed by the first respondent, which seeks that the application be dismissed as it is out of time.
The applicant stated that he did not know when he received actual notification of the decision by the Refugee Review Tribunal, and said it was “five or six years ago”.
Part 2, item 42, sch.1 of the Migration Litigation Reform Act 2005 provides:
42 Transitional provision—migration decision made before commencement day
Where proceedings are commenced on or after the commencement day in relation to a migration decision made before the commencement day, and actual notification of the decision is given before the commencement day:
(a)section 477 of the Migration Act 1958 applies as if the actual notification of the decision took place on the commencement day; and
(b)section 477A of that Act applies as if the actual notification of the decision took place on the commencement day; and
(c)section 486A of that Act applies as if the actual notification of the decision took place on the commencement day.
The commencement day of that Act was 1 December 2005. The migration decision in question was made by the Tribunal on 12 October 1999. The applicant was notified of that decision by letter dated
12 October 1999. The applicant acknowledged receipt of that letter during the hearing before the Court. Clearly the applicant received actual notification of the decision before the commencement day of
1 December 2005, and the Court so finds.
By s.477 of the Act, the applicant must make an application to the Court for review of a migration decision within 28 days of the actual notification. That time may be extended by 56 days if the conditions of s.477 are met.
No application has been made to this Court under s.477 of the Act for an extension of time to lodge the application. Such an application would now be out of time in any event by virtue of s.477(2), which operates so that such an application would have to be made within 84 days of the actual notification of the decision. Taking 1 December 2005 as the date of notification, the application is out of time, and an application for extension of time cannot now be made.
The first respondent has the right to oppose the application for judicial review on the ground of delay in seeking the remedy, a right which is provided by Rule 44.06(2)(b).
Rule 44.06(2) provides:
(2) For subrule (1), the grounds on which a respondent may oppose an application include the following:
(a) that the Court lacks jurisdiction to hear the application;
(b) delay in seeking the remedy;
(c) that there are, or have been, other judicial review proceedings in relation to the decision;
(d) that the applicant has not complied with subsection 486D (1) of the Migration Act.
Rule.1.06 of the rules of the Court empowers the Court to dispense with compliance with the Rules, but that does not give the Court power to dispense with the requirements of the Act. There is therefore no power to dispense with the requirements of s.477. Except as provided in s.477(2), the Court is prohibited by s.477(3) from making an order which would have the effect of allowing an applicant to make an application mentioned in s.477(1) outside the 28‑day period. Accordingly the Court does not have the power to make the order sought by the applicant.
The application by the applicant for judicial review and for an extension of time are therefore dismissed.
RECORDED : NOT TRANSCRIBED
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Dian Neligan
Date: 28 November 2006
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