SZJDB v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJDB v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1514

MIGRATION – Where application for review made out of time − whether court has jurisdiction to hear the application − whether applicant notified of Tribunal’s decision − alternatively whether application is without merit − where Tribunal found applicant not to have a well-founded fear of persecution − whether misconduct of migration agent in misleading the applicant forms a jurisdictional error.

Migration Act 1958, s.477

SZFOG v Minister for Immigration [2006] FCA 1170
B41 of 2002 [2004] FCA 30
Minister for Immigration v SZFDE [2006] FCAFC 142
SZIVV v Minister for Immigration [2006] FMCA 1120

Applicant: SZJDB

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2097 of 2006

Judgment of: Raphael FM

Hearing date: 4 October 2006

Date of Last Submission: 4 October 2006

Delivered at: Sydney

Delivered on: 4 October 2006

REPRESENTATION

Applicant in Person

Solicitors for the Respondents: Mr A. Markus
Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $1750.00 in accordance with Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2097 of 2006

SZJDB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There comes before me today an application by the respondent Minister for me to dismiss this application on the grounds that I have no jurisdiction to hear it. The basis for that allegation is that the decision of the Refugee Review Tribunal (the Tribunal) which the applicant seeks review of was made on 29 March 2001 and handed down on 24 April in that year. If the applicant had received notice of that decision, then unless he commenced some proceedings in this court within 28 days of 1 December 2005 or, with leave of the court, within a further 56 days, this court’s jurisdiction to hear the application for review would have been exhausted: s.477 Migration Act 1958 (the “Act”).

2. The respondent also argues that if I did have any power to allow the application to continue because, for example, I was satisfied that the actual date upon which the applicant was notified of the decision was some time in 2006 before the application was made, I should not do so because the application itself is doomed to failure.

3. The applicant attended an interview with the Refugee Review Tribunal during which she was questioned about her claims which supported her request for Australia to exercise its protection obligations in her favour.  Those claims revolved around her alleged membership of the Falun Gong organisation or, more accurately, her being a practitioner of Falun Gong.  The applicant’s responses to the Tribunal’s questioning, which are referred to at [CB69], were not encouraging.  She seemed to be unaware of the name of the leader of the Falun Gong movement or the exercises he had…