SZJBR v Minister for Immigration

[2007] FMCA 113

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJBR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 113

MIGRATION – Objection to competency – application of time.

Migration Act 1958, s.477
Migration Litigation Reform Act 2005

SZBVC vMinister for Immigration & Multicultural Affairs [2006] FMCA 834
SZEKC v Minister for Immigration & Multicultural Affairs [2006] FCA 1065
SZICV vMinister for Immigration & Multicultural Affairs [2006] FMCA 1063
SZIVA vMinister for Immigration & Multicultural Affairs [2006] FMCA 1494

Applicant: SZJBR

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG1978 of 2006

Judgment of: Barnes FM

Hearing date: 31 January 2007

Delivered at: Sydney

Delivered on: 31 January 2007

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The application is dismissed as incompetent.

2. The applicant pay the costs of the first respondent fixed in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1978 of 2006

SZJBR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This matter comes before the Court by way of a notice of objection to competency filed for the first respondent on 24 August 2006 in relation to an application filed by the applicant on 18 July 2006 seeking review of a decision of the Refugee Review Tribunal (the Tribunal) that was handed down on 13 July 1999 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. 

2. The notice of objection to competency contends that the applicant was notified of the Tribunal decision and that by a combination of s.477 of the Migration Act 1958 and transitional provisions in the Migration Litigation Reform Act 2005, s.477 applies as if actual notification of the Tribunal decision took place on 1 December 2005. Hence as the application for review was not filed by the applicant until 18 July 2006 it is said to be out of time and outside the maximum extendable period of 84 days that may be allowed under sub-s.477(2).

3. The background to these proceedings is that the applicant, a citizen of the People's Republic of China, filed a protection visa application on 15 July 1998 alleging he feared persecution in China, having spoken out against the Chinese system of government and the Chinese Communist Party.  The application was refused by a delegate of the first respondent.  He sought review by the Tribunal.  He attended a Tribunal hearing.  The Tribunal handed down its decision on 13 July 1999. 

4. On 4 August 1999 the applicant made an application for Ministerial intervention under s.417 of the Migration Act. It is relevant to note that in that application, a copy of which is annexed to an affidavit relied on by the first respondent being an affidavit of 24 January 2007 sworn by Kate Elizabeth McNamara, the applicant concluded his letter to the then Minister for Immigration with the following:

   This is my final plea to you as the Minister under section 417 of the Migration Act. I hope in my heart that you will read the findings of the RRT bearing in mind what I have written to you today. The case officer with the RRT has efficiently twisted what I have said in my statements to him to suit what seems to be to me collaboration with the China Communist Party.

5. The applicant filed what is not disputed to be his first application for judicial review to this Court on 18 July 2006.  In the application, in response to the question “date when notification of the decision was received by the applicant”, the date of 30 July 1999 was provided by the applicant.  On 18 July 2006 he also filed an affidavit to which was annexed a letter to the Court explaining the application for an extension of time made in his application for review.  The applicant explained that after refusal of his application by the Tribunal his migration agent had advised him that if he filed an appeal to the Court he must have an amount of $15,000 for legal fees.  He had no such money at that time and so did not appeal.  He stated that the week prior to 17 July 2006 one of his friends had advised him that he could be provided with free legal aid.  He explained in submissions that he was referring to the Federal Court’s free legal advice scheme. 

6. On this basis, both in his application and accompanying affidavit and in oral submissions today, the applicant sought an extension of the time in which to commence these proceedings. He did not address the requirements of s.477 of the Act. He did not take issue with the submissions of the respondent that he had received actual notification of the Tribunal decision or suggest that in any way there had not been notification in accordance with s.477 or, indeed, in compliance with the provisions of the Migration Act.

7. In these circumstances it is relevant to have regard to s.477 of the Act which came into effect on 1 December 2005. Sub-section 477(1) provides that an application for judicial review must be lodged within 28 days of actual as opposed to deemed notification of the Tribunal decision. By virtue of sub-s.(2) the Court is empowered to extend that time if the review application is made within 84 days of actual notification and the Court is satisfied that it is in the interests of the administration of justice to do so. However, under sub-s.(3) the Court must not otherwise make an order allowing or which has the effect of allowing an applicant to make an application outside the 28-day period.

8. In this case the Tribunal decision was made prior to the commencement of s.477 in its present form and the transitional provisions contained in the Migration Litigation Reform Act are relevant. Item 42 of Part 2 of Schedule 1 to that Act provides that when proceedings are commenced after the commencement date, that is, after 1 December 2005, in relation to a migration decision made before the commencement date and actual notification of the decision is given before the commencement date, s.477 applies as if actual notification took place on 1 December 2005.

9. In this instance, as indicated, the Tribunal decision was handed down on 13 July 1999.  A letter of that date notifying the applicant of the Tribunal decision (a copy of which is annexed to an affidavit for the respondent sworn and filed on 24 August 2006) was addressed to the applicant care of an address, which it is not disputed, was the applicant’s nominated address for service. 

10. In his application for judicial review the applicant stated that he received the decision on 30 July 1999.  He has not suggested to the Court that that was not the case.  Moreover, he made an application to the Minister for Ministerial intervention on 4 August 1999 and in that application took issue with what had been said in the Tribunal decision in the manner set out above.  In these circumstances I consider that it can reasonably be inferred that the applicant received the Tribunal decision on or before 4 August 1999 (the date of the letter to the Minister).  Hence actual notification of the decision occurred prior to 1 December 2005.  On that basis the applicant is taken to have received actual notification of the Tribunal decision on 1 December 2005.

11. The application for judicial review was filed on 18 July 2006 which is outside not only the 28 days provided for in s.477 but also outside the 84-day period in s.477(2). The present state of authority is that the Court does not have the power to extend the time limit provided for in s.477 outside the operation of s.477(2) (see SZEKC v MIMA [2006] FCA 1065, SZIVA vMIMA [2006] FMCA 1494, SZBVC vMIMA [2006] FMCA 834, and SZICV vMIMA [2006] FMCA 1063).

12. That means that it is not open to the Court to consider the reasons the applicant provides for his failure to have sought judicial review at an earlier time, based on his lack of funds and the advice he had received from his migration agent. Sub-section 477(2) provides that the time can only be extended if an application for an extension is made within 84 days of the actual notification, that is, within 84 days in this case of 1 December 2005. Hence it is only in those circumstances, as the law presently stands, that the Court can consider whether it is satisfied that it is in the interests of the administration of justice to grant the extension of time sought.

13. Accordingly, on the material before the Court I am satisfied that the application should be dismissed as incompetent.  The applicant should meet the costs of the first respondent.  His impecuniosity is not a reason for not awarding costs but it may be a matter to be taken into account by the first respondent in determining when and how to seek to recover such costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  13 February 2007