SZJCS v Minister for Immigration
[2006] FMCA 1982
•30 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJCS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1982 |
| MIGRATION LAW – Application for review of Refugee Review Tribunal decision – issue of delay in relation to the filing of application with the Court – application of ss.425A and 477(3) of the Migration Act1958 – issue relating to competency of application – application dismissed. |
| Migration Act 1958 (Cth), ss.417, 477, 477 (2), 477 (3) Migration Litigation Reform Act 2005 (Cth) Federal Magistrates Court Rules 2001 |
| Minister for Immigration and Multicultural Affairs & SZFDE (2006) FCA FC 142 SZICV v Minister for Immigration & Anor [2006] FMCA 1063 |
| Applicant: | SZJCS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2076 of 2006 |
| Judgment of: | O’Sullivan FM |
| Hearing date: | 30 October 2006 |
| Date of Last Submission: | 30 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 30 October 2006 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Ms McWilliam |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application filed 28 July 2006 be dismissed.
That the applicant pay the first respondent’s costs in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2076 of 2006
| SZJCS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
These reasons for decision are delivered orally if written reasons are required a transcript will be ordered, grammatical errors corrected and minor amendments made to render these orally delivered reasons more amenable to being read.
This matter concerns an application filed 28 July 2006. The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 3 April 2003 confirming a decision of the delegate of the first respondent not to grant the applicant a protection visa.
Pursuant to directions made on 10 August 2006 the respondent filed a green case book (“CB”) which was taken into evidence and the matter was listed for final hearing.
At the hearing the applicant appeared with the assistance of an interpreter and confirmed he had received advice under the legal advice referral scheme available to applicant’s in this jurisdiction. Initially, the matter was stood down to ascertain whether the Law Society of New South Wales would be providing pro-bono representation. It was subsequently confirmed that the applicant would not receive that assistance. Following a brief adjournment to allow the respondents submissions to be translated to him I explained to the applicant I was satisfied he had an adequate opportunity to obtain advice and assistance.
I accept the background of this application is accurately set out in the submissions of the first respondent filed 24 October 2006. I adopt paragraphs 2-8 of those submission for the purposes of those reasons:
“(a) On 31 August 2001 the applicant and his wife applied for a protection (Class XA) visa.
(b)On 31 October 2001, the application was refused (CB 43).
(c)On 5 December 2001, the applicant and his wife lodge with the Tribunal an application for review of that decision (CB 55).
(d)On 20 January 2003, by letter sent to the applicant at his last know residential address and to his migration agent (CB 71-72), the Tribunal invited the applicant and his wife to a hearing which was to be held on 13 March 2003. The letter sent to the applicant’s residential address was returned to the Tribunal unclaimed (CB 75).
(e)On 3 April 2003 the Tribunal handed down its decision affirming the decision of the first respondent’s delegate (CB 82-88).
(f)By letter dated 2 June 2003 the applicant wrote to the first respondent (CB 89-90), seeking the substitution of a more favourable decision section 417 of the Migration Act 1958 (Cth) (“the Act”).
(g)On 10 May 2004, the applicant’s request to the first respondent to substitute a more favourable decision was refused (CB 93).
(h)On 28 July 2006 the application for review of the Tribunal’s decision was lodged with the Federal Magistrates Court.”
The review applicant’s before the Tribunal were husband and wife (“CB 55”) However, the application before the Court was made by the applicant alone and it has been dealt with on that basis.
The application
The applicant applied for an order that the respondent show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Act. The grounds of the application are:
“1.The tribunal failed to consider the whole of my case given the information I provided is insufficient.
2.I did not attend the hearing held by the Tribunal because my previous migration agent Ms You Xian Wang did not notice me to attend.
3.I understand that if I wanted to obtain a refugee visa I should have attended the hearing in the Tribunal. I would have attended the hearing if my previous migration agent Ms You Xian Wang noticed me.”
The application sought orders restraining the respondent from removing the applicant from Australia an order quashing the decision from the Tribunal. The applicant also applied for an extension of time for making the application under s.477 of the Act.
Finally, the applicant filed a document on 10 October 2006 titled “Submissions.” Those submissions were as follows:
“1.My name is [“Name/D.O.B.”]; my wife’s name is [“Name/D.O.B.”] we both arrived in Australia on
19 August 2001. On 31 August 2001 I asked the Migration Agent to help us to apply protection visas for us. The agent is “insert name”
2.She charged me Australian $1,000.00 and told me that she would call me as soon as she got news from Sardina.
We told her we don’t know English she must tell us any news of our case in time. She answered ok.
3.On 20 November 2001 she told me that Sardina had refused my application and she decided to help me with lodging application to RRT for review and asked us to her office to pay her fee of Aus$800.00. We got to her office and paid her fee.
4.She told me it would take 1 or more year for RRT to make our decision asking us to patient awaiting the information. She would inform us upon receiving any news from RRT.
5.In about July 2002 I asking her about our case. She relied she hadn’t got any news from RRT.
6.In about May 2003 we went to her office. She was not there. The person sitting in her original chair told us she and her husband had gone to China. We all suddenly felt sad. We told the person our condition and ask him to help in fighting our cases outcome. We found a letter from many letters. He told me the RRT had refused our application because we didn’t attending the hearing of RRT.
7.The agent didn’t inform us of attending the hearing the RRT. We had never got any news form the agent. We had told her that we don’t know English and she must tell us any news in time.
8.The person told us her agents licence had been banned from the migration department and she and her husband had fled to China.
9.Dear Judge you could see I and my wife were victims. We beg you could show sympathy with us giving us a last opportunity to return our case to RRT where I could present our grounds of Refugee otherwise I and my wife are forced to be sent to China and face persecution by the Chinese Authority due to our beliefs of Farlangong and our activities both in China and Australia.”
Section 477(1) requires an application to be made within 28 days of the actual notification of the decision. Section 477(2) gives the Court a power to extend the decision of up to extend the period by up to 52 days if the application for the extension is made within 84 days of the actual notification of the decision and the Court is satisfied that it is in the interests of administration of justice to do so. Section 477(3) prohibits the Court from granting an extension of time accept as provided by s.477(2). Section 477 of the Act was amended by the Migration Litigation Reform Act 2005 (Cth).
The date of commencement of the amendment is 1 December 2005. By virtue of the transitional provisions where proceedings are commenced on or after the commencement date of 1 December 2005 in respect of a decision made before that date and actual notification of the decision was given before that date then s.477 applies as if the actual notification of the decision took place on the commencement day. Therefore, in this case, the day for calculating the commencement of the 84 days is under s.477 (2)(a) is 1 December 2005.
Consideration of application
The respondent has raised objection to the application on the basis of competency. The respondent’s submissions in this regard are set out at paragraphs 11-16 of the outline of submissions:
“11.Section 477(1) of the Act requires and application to be made to the Federal Magistrates Court within 28 days of the actual (as opposed to deemed) notification of the decision. Section 477(2) of the Act provides for the Court to extend that 28 day period by up to 56 days of an application for that order is made within 84 days of the actual notification of the decision and the Court is satisfied that it is in the interests of the administration of justice to do so.
12.The above time limits are mandatory limits on the Court’s jurisdiction and the Court lacks the power to create an earlier application for an extension of time so as to bring it within the scope of section 477 (2) (a); SZICV v Minister for Immigration & Anor (2006) SZJCS v Minister for Immigration and Multicultural Affairs & Anor FMCA 1063 per Smith FM at 12-60 ,64-67.
13.On 3 April 2003 the Tribunal wrote to the applicant and his migration agent notifying him of Tribunals decision. This, together with the applicant’s request to the first respondent under section 417 of the Act, dated 2 June 2003, indicates that the applicant had been notified of the Tribunal’s decision by at least 2 June 2003.
14.As the applicant received notification of the tribunal’s decision in June 2003, by virtue of the transitional provisions in clause 42, part 2 of schedule 1 of the Migration Litigation Reform Act 2005, the applicant is been taken to receive actual notification of the Tribunals decision on 1 December 2005.
15.As the application to the Federal Magistrates Court was not lodged until 28 July 2006, the application was not filed within the 28 day time limit imposed by section 477(1) of the Act.
16.Accordingly, an application for an order extending the time for make an application under the act was required. Such application was made, but as part of the substantive application lodged on 28 July 2006. That is, there was no application for extension of time made within 84 days as of the day of the decision.”
As indicated above the first respondent submitted that the application is incompetent and should be dismissed on that basis.
In the alternative the respondent submitted even if the Court has jurisdiction to entertain the application there was no jurisdictional error in the Tribunal’s decision. Further and in the alternative the first respondent submitted that if the Court found that it did have jurisdiction and that there was jurisdictional error in the Tribunals decision both of which were not admitted the Court should refuse the relief sought on the basis of delay.
In this case on the applicant’s own account he received notice of the Tribunal’s decision prior to December 2005 (see SZIVA v Minister for Immigration & Anor [2006] FMCA 1494). The applicant acknowledged that he had authorised a letter to be sent to the then Minister for a decision s.417 of the Act in June 2003. (CB 89) In relation to the applicant’s claims regarding the conduct of his migration agent the effect of fraud by a migration agent on the decision of the Tribunal was considered by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs & SZFDE (2006) FCAFC 142. In that case the majority of the Court said that the fraud practiced by the migration agent did not provide a basis for setting aside the decision of the Tribunal. In that case it was held the Tribunal was not aware of the fraud and had complied with the Act. In that case the Court held the complaint of lack of procedural fairness could not succeed (SZFDE supra).
As was explained to the applicant even putting to one side the issue of the timing of his application to this Court his complaint in relation to the conduct of the migration agent having regard to the recent authorities on this issue could not succeed.
In this case it is clear that notice was given to the Tribunal by the applicant that his migration agent was the ‘authorized recipient’ for the purposes of s.441(G) of the Act (CB 56).
The application to the Tribunal (which provided this notice) was signed by the applicant (CB 58).
In any event, it is clear in this case and was acknowledged by the applicant both in his submissions to the Court and this afternoon he received notification of the Tribunal’s decision prior to 1 December 2005. Given this, the application for extension of time is made on
28 July 2006, that is, more than 84 days after 1 December 2005 and so more than 84 days after the deemed notification date of the decision. Accordingly, the Court is prohibited under s.477(3) of the Act from making an order extending the time for the application to be made.
In the event there were any residual discretion that may exist I would find that it is not appropriate in the circumstances of this case to exercise it given the substantial period of delay in the absence of any explanation for same. Accordingly, pursuant to s.477(3) of the Act this Court does not have power to extend time for filing an application seeking judicial review of the tribunal decision outside the 28 day period provided under s.477(1) of the Act. Therefore the Court would order that the application be dismissed.
The application having been dismissed, the respondent sought costs. The applicant did not wish to say anything in relation to this application. The respondent sought costs in the amount of $4,000.00. In the circumstances this is less than the amount fixed in Schedule 1, Part 2, Item 1(c) of the Federal Magistrates Court Rules 2001. I find it appropriate to order that the applicant pay the first respondent’s costs in this matter which are fixed in the amount of $4,000.00.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM
Associate: James Naughton
Date: 10 November 2006
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