SZJGU v Minister for Immigration and Citizenship

[2007] FCA 343

FEDERAL COURT OF AUSTRALIA

SZJGU v Minister for Immigration & Citizenship [2007] FCA 343

SZJGU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD2374 OF 2006

JESSUP J
1 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2374 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJGU
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	1 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The title of the respondent as shown in the application for leave to appeal be amended to Minister for Immigration and Citizenship.

2.The Refugee Review Tribunal be joined as the second respondent.

3.The application for leave to appeal be dismissed.

4.The applicant pay the first respondent’s costs of the application fixed in the sum of $1,000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2374 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJGU
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	1 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a judgment of the Federal Magistrates Court given on 22 November 2006 in which that court upheld a motion by the respondent Minister to dismiss a proceeding instituted by the applicant for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 23 February 1999, affirming a decision of the delegate of the Minister to refuse to grant a protection visa to the applicant under the Migration Act1958 (Cth) (‘the Act’).

2. The basis for the Minister's motion before the Federal Magistrate was that the application was out of time. The Magistrate allowed the motion and dismissed the proceeding as incompetent. The Magistrate's judgment was based upon the combined operation of s 477 of the Act and item 42 of part 2 of Schedule 1 of the Migration Litigation Reform Act 2005 (Cth).  The Magistrate found as a fact that the applicant had been notified of the Tribunal's decision by 25 March 1999 at the latest, when he signed a letter to the Minister in which his unsuccessful outcome before the Tribunal was referred to.  That fact having been established, the Federal Magistrate concluded that the purported application for judicial review was well out of time, and that she had no jurisdiction to hear the matter.

3. The applicant has made a very brief submission before me this morning and has, frankly, made no attempt to demonstrate that the Magistrate was in error in any respect.  This appears to me to have been a clear case, and I agree with the Magistrate that the purported application for judicial review was out of time and incompetent. 

4. It follows that I will dismiss the application for leave to appeal.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:        13 March 2007

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	P Reynolds
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	1 March 2007
Date of Judgment:	1 March 2007