SZJBK v Minister for Immigration

[2006] FMCA 1381

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJBK v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1381

MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – summary dismissal – whether more than 84 days expired between notification to applicant of Refugee Review Tribunal decision and filing of application before this Court – whether Court has jurisdiction to entertain application.

Migration Act 1958 (Cth), s.477(2)

Applicant: SZJBK

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG1951 of 2006

Judgment of: Emmett FM

Hearing date: 6 September 2006

Date of last submission: 6 September 2006

Delivered at: Sydney

Delivered on: 6 September 2006

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent: Ms E. Palmer, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1951 of 2006

SZJBK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 13 July 2006, the applicant filed an application in this Court seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 25 March 2003. 

2. In the application, in response to the question, “Date when notification of the decision was received by the applicant”, the applicant wrote “21 June 2006.”  Under the words, “Application for extension of time” and the question, “Does the applicant apply for an order that the time for making the application be extended under section 477 of the Migration Act 1958?”, the applicant has circled the answer “No.”

3. In support of his application and filed on the same day is an affidavit affirmed by the applicant on 10 July 2006 and annexing various documents.  The documents annexed are a copy of the Refugee Review Tribunal decision dated 25 March 2003 and a copy of a letter signed by the applicant dated 10 July 2006, in the following terms:

“Dear Judge of Federal Magistrates Court,

I am writing the letter to you in order to obtaining (sic) your sympathy and assistance. I’m a victim of the agent, Mr Jack Meng of Jack Meng Immigration Pty.Ltd (sic) which deceived any clients and was banned by Department of Immigration.

On 18 May 2002 I asked him to act on my behalf for my applying of protection visa. He said as long as I paid his fees he could do what I asked. He said to me: “You don’t know English only do what as I ask.” He let me sign some forms. I first paid US$400 plus Au$100 (sic). He let me wait for his phone.

In about April 2003, he called me telling me that my case failed and asked me to get to his office with AU$3,000 [emphasis added]. Next day I got to his office and he told me that he could help me with 3 years’ visa if I could pay AU$3,000 for him. I said I had only AU$1,000 with me. He said AU$1,000 only get 1 year’s visa. He asked me to bring my passport to the department (sic) of Immigration waiting for him at 9am when there were another (sic) people were waiting for him. He took us to the office and only get 6 months’ visa. From the beginning till now I haven’t getting any letters from The Department of Immigration because all letters was (sic) posted to his address. He said because I don’t know English I needn’t get letters and he could tell me what I need to know.

When I am at the detention centre, I was told that I can apply to get my documents from the RRT and appeal to your Court. I got the decision from RRT which is the first letter I got from the Authority. It is my last chance therefore I do beg you could consider my real experience that the agent deceived me and give me the chance to lodge an appeal against the decision of RRT.

I’ll greatly appreciate your sympathy and assistance.

Yours truly

[Applicant]

10 July 2006.”

1. The applicant also annexed to his affidavit a letter dated 21 June 2006 afrom the Tribunaln acknowledgement acknowledging from the Refugee Review Tribunal dated 21 June 2006 of receipt of his request for a copy of the Tribunal decision.

2. The first respondent seeks an order dismissing the applicant's application this morning on the basis that this Court has no jurisdiction to entertain the application because it has no discretion to extend the time for the filing of an application for judicial review in this Court. 

3. The first respondent submits that it is clear that the applicant was aware, at least from April 2003, that his application to the Tribunal had failed.  In those circumstances, more than 84 days has expired between notification to the applicant of the Tribunal's decision in April 2003, and the filing of an application for judicial review in this Court on

   
   

   13 July 2006. 

4. Under s.477(2) of the Migration Act 1958 (Cth), this Court has a discretion to extend the time for filing from 28 days for a further

   
   

   56 days, up to a maximum of 84 days if it is satisfied that it is in the interests of the administration of justice to do so.

5. The applicant has confirmed, before me this morning that the contents of his letter are true.  I accept that it may be that ithe was not until 21 June 2006 that he may not have received a copy of the Tribunal’s decision until 21 June 2006.  However, the legislation is not in terms of receipt of the decision by an applicant, rather, it is in terms of notification of the decision.

6. In accordance with the applicant's letter addressed to this Court, and which the applicant has confirmed as true, the applicant states that his migration agent called him in about April 2003 and told him that his case had failed.  Those words cannot be reasonably be construed in any way other than an admission that, in about April 2003, the applicant was notified of the Tribunal's decision.

7. I note that the first respondent's solicitor wrote to the applicant on

   
   

   5 September 2006 at the home address provided by the applicant at the first Court date on 10 August 2006.  That letter notified the applicant that the first respondent would seek, on this occasion this morning, orders dismissing the application for the reasons outlined in the amended response filed on 5 September 2006. 

8. In the circumstances, and having regard to the fact that more than 84 days have passed since the time on or about April 2003 when the applicant was notified of the Tribunal's decision,. Accordingly, this Court has no discretion to extend the period for filing an application in this Court, and the application is dismissed.

RECORDED  :  NOT TRANSCRIBED

ORDERS DELIVERED

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  S. Tsang

Date:  22 September 2006