SZJBP v Minister for Immigration
[2006] FMCA 1432
•11 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJBP v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1432 |
| 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 – expiry of more than 84 days from notification of Refugee Review Tribunal's decision to filing in this Court – applicant taken to have been notified of decision on 1 December 2005 – no request for an extension of time within 84 days of 1 December 2005 – no jurisdiction to extend time for filing pursuant to s.477(3) of the Migration Act 1958 (Cth) – application incompetent. |
| Migration Act 1958 (Cth), ss.476, 477 Migration Litigation Reform Act 2005 (Cth), cl.42 Federal Magistrates Court Rules 2001, r.15.27 |
| S365 of 2003 v Minister for Immigration & Anor [2006] 916 SZITX v Minister for Immigration & Anor [2006] FMCA 908 SZATR v Minister for Immigration & Multicultural Affairs & Anor [2006] FCA 986 followed S285 of 2003 v Minister for Immigration & Anor [2006] FMCA 1145 SZICV v Minister for Immigration & Anor [2006] FMCA 1063 SZEKC c Minister for Immigration & Multicultural Affairs [2006] FCA 1065 followed SZIWU v Minister for Immigration & Anor [2006] FMCA 944 SZBCF v Minister for Immigration & Anor [2006] FMCA 1096 SZIVX v Minister for Immigration & Anor [2006] FMCA 806 SZDCT v Minister for Immigration & Multicultural Affairs [2006] FCA 992 Shah & Ors v Minister for Immigration & Anor [2006] FMCA 960 |
| Applicant: | SZJBP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1973 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 September 2006 |
| Date of Last Submission: | 11 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 11 September 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitor for the Respondents: | Ms Rayment |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed for want of jurisdiction.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1973 of 2006
| SZJBP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 14th December 2004.
The application was not filed until 17th July 2006.
The first respondent Minister has filed a response, the relevant part of which says:
The Court has no jurisdiction to review the decision of the Refugee Review Tribunal dated 14th December 2004 as
sub-s. 477(1) of the Migration Act 1958 applies.
The first respondent relies on an affidavit of Melissa Leigh Jolley, solicitor, sworn on 18th August 2006, and filed in Court on
21st August. The affidavit annexes a copy of a document sent by facsimile transmission to the Department of Immigration and Multicultural Affairs on 24th February 2005. It is an application for a bridging visa E, sub-class 050.
In support of his application the applicant has filed an affidavit in which he said:
I (name of the applicant)[1] lodge my application late due to I was released from DIMIA Detention Centre on 17.5.05 and I did not speak read and write English. Also I do not quite understand the legal procedure about migration.
[1] The applicant’s name is not published to comply with s 91X of the Migration Act
I listed the application for hearing today to deal specifically with the question of jurisdiction. This question is important because without jurisdiction the Court cannot deal with the application.
I gave the applicant the opportunity to give evidence in support of his case. He told the Court that because he did not read or write English very well another person had prepared his application and affidavit for him. He gave evidence that both of those documents were translated for him before he signed them, and or at least he had the contents of the documents explained to him in Chinese.
I am satisfied, on the applicant's evidence, that even though neither document bears any notification that a translation was given, that I should the documents into evidence notwithstanding a failure to comply with r. 15.27.
The applicant sought to tender two documents. One is a notice to detainee of transfer dated 19th January 2005. That document advises the applicant that the Department has considered his circumstances, and a decision had been made to transfer him to the Baxter Immigration Detention Facility in South Australia. The document sets out the wide range of facilities said to be found at the Baxter Immigration Detention Facility.
The notice also refers to the fact that on 7th January 2005 that the applicant was advised that the Villawood Immigration Detention Centre was a facility that was more appropriate for shorter periods of stay in immigration detention.
I am satisfied that the notice allows the Court to find that the applicant was in detention on 7th January 2005 and on 19th January 2005.
The notice goes some way towards supporting the applicant's claim that he was not released from detention until 17th May 2005.
The applicant, in his oral evidence and in his submission, complained that he had been hindered or prevented from obtaining access to legal advice, and in particular, from obtaining legal advice and assistance from the Legal Aid Commission of New South Wales. To this effect, he submitted a letter addressed to him marked confidential that bears on its face a stamp from a mailing machine indicating that it is from Legal Aid New South Wales.
The applicant did not wish the contents of the envelope containing a letter to him to be made available, and as I am satisfied that the letter inside is indeed from the Legal Aid Commission of New South Wales, it would appear to me that a claim of legal professional privilege is being made, and I propose to abide by that.
The letter supports the claim that the applicant had sought advice from the Legal Aid Commission, and that this letter which was originally addressed to him at the Immigration Detention Centre in Birmingham Road, Villawood, was forwarded on to him at Baxter on 19th - or after 19th January, and it appears that it was received at Baxter on
11th February 2005, and it appears from Chinese notification and date in English that the applicant did not receive it until 12th February 2005. Again, it supports the applicant's claim, if there is need for such support, that he was in detention in February 2005.
The applicant was not subject to cross-examination. The first respondent, as I said, relies on the affidavit of Ms Jolley to which I have previously referred. The applicant for a bridging visa E annexed to Ms Jolley's affidavit indicates that the applicant applied for a bridging visa on 22nd February 2005.
It is clear on its face that the applicant was an inmate of the Immigration Detention Facility at Baxter, Port Augusta, South Australia, on that date.
Annexed to the application is a statement signed by the applicant.
It says, amongst other things:
I will apply for review the RRT decision in the Federal Court.
Ms Rayment for the first respondent Minister submits that this statement attached to the application for a bridging visa can be relied on as evidence that the applicant had been notified of the decision of the Refugee Review Tribunal on or before 22nd February 2005.
The significance of the dates is important because it goes to the question of the date of actual notification upon which jurisdiction is founded.
The applicant filed his application for judicial review on
17th July 2006, which is more than 28 days after he says that he was notified of the decision, and more than 28 days after the solicitors for the respondent Minister say the applicant was notified of a decision.
Even taking the applicant's case at its highest, the very latest evidence of the date of actual notification of the decision is 25th May 2005 which is the date given by the applicant in his application. As that notification was made before 1st December 2005, that means that according to the transitional provisions in clause 42 schedule 1 Part II of the Migration Litigation Reform Act 2005, s. 477 of the Migration Act applies as if actual notification took place on 1st December 2005.
The applicant in his application seeks an extension of time.
Sub-s. 477(2) of the Migration Act requires that an application for the extension of time must be made within 84 days of the actual notification. As this is a case where the law deems actual notification to have occurred on 1st December 2005, the first respondent submits that the 84-day period expired on 24th February 2006.
As this application was not filed until 17th July 2006, the Court has no power to grant an extension of time. It follows that the Court has no jurisdiction to hear the application. The application will be dismissed. I propose to return to the two exhibits.
There is an application for costs on behalf of the first respondent Minister in the sum of $2,700.00. The applicant has been wholly unsuccessful in his claim and in my view there is no reason why I should not make a costs order in favour of the first respondent.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 22 September 2006
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