SZJGU v Minister for Immigration
[2006] FMCA 1770
•22 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJGU v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1770 |
| MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – application by first respondent pursuant to r.44.12 of Federal Magistrates Court Rules 2001 – whether this Court has jurisdiction to entertain applicant’s application – whether date of notification of decision of Refugee Review Tribunal was more than 84 days prior to filing application. |
| Federal Magistrate Courts Rules 2001, r.44.12 Migration Act 1958 (Cth), ss.417; 477; 477(3) Migration Reform Litigation Act 2005 (Cth) |
| Applicant: | SZJGU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2398 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 22 November 2006 |
| Date of last submission: | 22 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 November 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 |
SYG2398 of 2006
| SZJGU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first respondent seeks an order dismissing the applicant's proceeding before this Court, commenced by way of application filed on 29 August 2006, seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 23 February 1999, pursuant to r.44.12 of the Federal Magistrate Courts Rules 2001.
The application is based upon the contention that the filing by the applicant of his application did not comply with the time provisions required under s.477 of the Migration Act 1958 (Cth) (“the Act”) and that, in the circumstances, this Court has no jurisdiction to entertain the applicant's application.
In his application filed on 29 August 2006, the applicant states that he was notified of the Tribunal decision on 15 August 2006.
Pursuant to s.477 of the Act, an application to the Federal Magistrates Court must be made within 28 days of the actual, as opposed to the deemed, notification of the Tribunal's decision. The Court may extend that 28 day period by up to a maximum of 56 days, if an application for judicial review is made within 84 days of the actual, as opposed to deemed, notification of the decision and the Court is satisfied that is in the interests of the administration of justice to do so.
Section 477(3) of the Act otherwise provides that the Court must not make an order allowing - or which has the effect of allowing - an applicant to make an application for judicial review outside that 28 day period.
On 24 February 1999, the Tribunal wrote to the applicant, at the address identified by him for service, informing him that the Tribunal had decided that he was not a refugee and was therefore not entitled to a protection visa. The letter enclosed a copy of the Tribunal's decision and reasons. The applicant stated this morning that he changed his address prior to receiving that letter and that is the explanation as to why he may not have been notified of the decision.
On 19 October 2006, the applicant appeared at a directions hearing before me, at which he was directed to file and serve any affidavit evidence in respect of this proceeding and was given leave to file an amended application. No further document has been filed by or on behalf of the applicant.
However, for the purposes of this morning's application, I am prepared to accept the applicant’s statement that he may have moved residential address prior to the Tribunal's letter of 24 February 1999 informing him of the Tribunal's decision.
On 25 March 1999, the applicant wrote a letter to the Minister for Immigration & Multicultural Affairs requesting the Minister to exercise his discretion pursuant to s.417 of the Act. The letter stated that the applicant's application for a protection visa had been refused by the Refugee Review Tribunal. That letter was signed by the applicant and there is nothing on the face of the letter to suggest that it was written and sent by anyone other than the applicant.
The applicant has said to the Court this morning that the letter was written by his migration agent and he was “not clear about it”. However, in circumstances where the letter is signed by the applicant and there is nothing on the face of the letter to suggest it was not written at his instruction or with his knowledge and nor has the applicant suggested otherwise, it is clear that as at the 25 March 1999, the applicant had been notified of the decision of the Tribunal.
The transitional provisions of the Migration Reform Litigation Act 2005 (Cth) provide that notification of a decision to an applicant before 1 December 2005 deems notification to an applicant to have occurred on 1 December 2005.
In the circumstances, I am satisfied on the evidence before me that the applicant was notified of the decision of the Tribunal prior to 25 March 1999 and, in the circumstances, is deemed to have been notified on 1 December 2005.
In those circumstances, the period of 84 days provided under s.477 of the Act has well and truly expired and, pursuant to s.477(3) of the Act, the Court is prevented from extending the time period for the filing of an application for any further period.
In the circumstances, the Court has no jurisdiction to consider the applicant's application and the applicant's proceeding before this Court is dismissed.
RECORDED : NOT TRANSCRIBED
ORDERS DELIVERED
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: S. Tsang
Date: 28 November 2006
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