SZJIA v Minister for Immigration
[2006] FMCA 1777
•24 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJIA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1777 |
| MIGRATION – Review of RRT decision − whether notification of the decision of the Tribunal complied with ss.430-430D and 441A Migration Act 1958 − whether applicant aware of the RRT’s decision to dismiss his application for review − where application made out of time − whether court has jurisdiction to hear the application. |
| Migration Act 1958, ss.430, 430D, 441A, 477 Migration Litigation Reform Act 2005 Clause 42, Schedule 1, Part 2 |
| Applicant: | SZJIA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2502 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 24 November 2006 |
| Date of Last Submission: | 24 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 November 2006 |
REPRESENTATION
| Applicant in Person |
| Solicitors for the Respondents: | Ms T. Quinn Phillips Fox |
ORDERS
Substantive application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $1,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
No application by this applicant in relation to the decision of the Refugee Review Tribunal made on 18 September 2002 and handed down on 15 October 2002, or the decision of the delegate of the Minister made on 27 September 2001, shall be received for filing without leave of the court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2502 of 2006
| SZJIA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The substantive proceeding by this applicant for review of a decision of the Refugee Review Tribunal was commenced in this court on 6 September 2006. The application sought review of a decision of the Refugee Review Tribunal that was made on 18 September 2002 and handed down on 15 October 2002.
In his application the applicant was asked for the date when notification of the decision was received by him. The date that appears on the application form is 9 October 2002. That date would almost certainly be incorrect.
The applicant gave evidence before me that he had made an application for a protection visa on 8 June 2001 and that in the form which he sent to the authorities he nominated a Mr Wu of PO Box K1143 Haymarket, New South Wales 1240 as his agent to receive correspondence [CB 31]. It would be fair to say that the decision of the Minister to decline the applicant’s protection visa was sent to him at his residential address as well as to his migration agent [CB 37].
The applicant was dissatisfied with the decision of the delegate and so applied to the Refugee Review Tribunal for review. He signed that document on 12 October 2001 and completed Section C, advising that correspondence about the application should be sent to Mr Wu at the same post office box [CB 47].
The applicant was invited to attend a hearing by the Tribunal.
The letter was sent to his authorised agent but also to the last known address from where it was returned. On 30 August 2002, the applicant signed a form which was completed so as to indicate that he did not wish to come to a hearing. The applicant disputes that that was what was intended.
On 23 September 2002, a letter was sent by the Tribunal to the applicant at the post office box in the Haymarket to which I have referred advising him that a decision had been made and would be handed down on 15 October [CB 56]. The decision was sent by letter to the applicant care of the post office box that he had indicated in the Haymarket on 15 October 2002 [CB 58].
In evidence, the applicant confirmed that he had been told by his agent that the decision had been received and he was unsuccessful. Annexed to an affidavit of Therese Quinn sworn on 13 October 2006 and filed in this proceeding, is a copy of a letter in handwriting signed by the applicant to the Minister seeking the Minister’s intervention. The letter is dated 8 November 2002 and was received on 15 November 2002. The applicant stated in evidence that he signed a number of blank pieces of paper with the migration agent. The post office box address on that letter was slightly different to the post office box address previously used. On 7 April 2003, the Minister advised the applicant through that post office box address that she had decided not to intervene.
It would be wrong of the court to be critical of the Department for not then taking steps to remove the applicant from Australia because the court is not aware of the circumstances that then existed, but it is perhaps unfortunate that this was not done successfully because it allowed the applicant time to make this application.
The notification given to the applicant of the decision of the Tribunal appears to me to have complied in all respects with the requirements of ss.430 to 430D Migration Act and the method by which it was communicated to have complied with s.441A.
In those circumstances the provisions of s.477 as amended now apply so that actual notification of that decision was deemed to have been given on 1 December 2005. If the applicant was to argue that some other date should be the date upon which actual notification took place, he would have to establish the same by evidence. He has not done so. He has in fact confirmed that he was aware of the decision. He may not have seen the decision but that is not the fault of or the concern of the Minister. What an applicant decides to do, having been notified of the existence of an unfavourable decision, is up to the applicant.
The Department should not be held to ransom by an applicant who declines to look at a decision which he does not wish to see.
As notification of the decision was received by this applicant on 1 December 2005, he is subject to the time limits contained in s.477 and Clause 42, Schedule 1, Part 2 of the Migration Litigation Reform Act 2005. The applicant was allowed 28 days in which to make his application or, with the approval of the court, a further 56 days making a total of 84 days. The applicant did not apply for the approval of the court for an extension of time under s.477(2) and therefore this application which he made in September 2006 is substantially out of time. The provisions of s.477 are clear. This court has no jurisdiction to entertain the application.
The substantive application is dismissed. The applicant will be required to pay the respondent’s costs which I assess in the sum of $1,250.00. The court will order that no application by this applicant in relation to the decision of the Refugee Review Tribunal made on 18 September 2002 and handed down on 15 October 2002 or the decision of the delegate of the Minister made on 27 September 2001 shall be received for filing without leave of the court.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM.
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