SZJIE v Minister for Immigration - [2006] FMCA 1939

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJIE v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1939

MIGRATION – Refugee – applicant had actual notice of Tribunal’s decision – application filed after maximum “grace” period allowable under the transitional provisions – application for extension refused – application filed outside time limits prescribed by s.477 – no jurisdiction – application dismissed.

Migration Act 1958, ss.476, 477(1), 477(2)
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.42(a)

Applicant:

SZJIE

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2514 of 2006

Judgment of:

Nicholls FM

Hearing date:

14 November 2006

Date of Last Submission:

31 October 2006

Delivered at:

Sydney

Delivered on:

14 November 2006

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Ms. Brauer

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application made to this Court on 7 September 2006 is dismissed.
The applicant pay the first respondent's costs set in the amount of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2514 of 2006

SZJIE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised)

I have before me an application, filed in this Court on 7 September 2006, seeking an order that the respondent show cause why the remedies sought by the applicant (which essentially seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 30 January 1997 to affirm the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant), should not be granted, in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (“the Act”).
I note the Minister's response filed on 3 October 2006 that the application be dismissed on the basis of incompetence in that the application to the Court has been filed outside the time limits prescribed by s.477 of the Act. I also note the respondent's application for dismissal on that basis filed on 13 October 2006.
Read into evidence before me today, were the affidavit of Gemma Ann Broderick, a solicitor in the employ of the respondent's solicitors, made on 11 October 2006, the affidavit of Ziad Chami, solicitor, made on

12 October 2006, and the affidavit of Zoe Elizabeth Brauer, solicitor, of 30 October 2006 (with annexures).
On the basis of, and drawing from that evidence put before the Court, the following relevant matters emerge:
a)17 July 1995: The applicant lodged an application for a protection visa with the first respondent’s Department (see annexure “A” to the affidavit of Zoe Elizabeth Brauer).
b)7 November 1995: The Department wrote to the applicant advising that his application had been refused (see annexure “B” to the affidavit of Zoe Elizabeth Brauer).
c)11 December 1995: The applicant lodged an application for review with the Tribunal (see annexure “C” to the affidavit of Zoe Elizabeth Brauer).
d)30 January 1997: The Tribunal affirmed the delegate’s decision not to grant the protection visa (see annexure “D” to the affidavit of Zoe Elizabeth Brauer).
e)31 January 1997: The Tribunal wrote to the applicant advising that it had affirmed the decision of the delegate, and notifying him of his rights to review (see annexure “E” to the affidavit of Zoe Elizabeth Brauer).
f)26 February 1997: The applicant approached the then Minister for Immigration, seeking that he exercise his non-compellable power under s.417 of the Act, and provide a more favourable outcome for the applicant (see annexure “A” to the affidavit of Gemma Ann Broderick).
g)17 July 1999, and 2 June 2000: The applicant joined the Lie & Muin class actions respectively, (see annexure “A” to the affidavit of Ziad Chami).
h)20 February 2004: The applicant’s Order Nisi application was refused by Justice Emmett in the Federal Court of Australia (see annexure “B” to the affidavit of Ziad Chami)
i)7 September 2006: The applicant applied to the Federal Magistrates Court of Australia seeking (again) review of the Tribunal decision.
When the matter came on before me today, the applicant appeared in person. He was assisted, in part, by an interpreter in the Indonesian language, but was able to conduct proceedings for most part in the English language. Ms. Brauer appeared for the Minister.
The respondent submits that the Court simply does not have jurisdiction to hear the application, with reference to the amendments to the Act, made by the Migration Litigation Reform Act 2005 (Cth) (“the reform Act”), which now provide time limits to be applied to the filing of applications before this Court. Section 477 of the Act provides:
“Time limits on applications to the Federal Magistrates Court
(1)    An application to the Federal Magistrates Court for a    remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.
(2)The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
(a)     an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
(b)     the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3)    Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.
(4)    The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.”
The applicant’s application, filed in this Court on 7 September 2006 does not actually state, (as is required), the date on which the applicant received notification of the Tribunal’s decision. But it is relevant to note that irrespective of exactly when actual notification occurred, Sch.1 cl.42(a) to the Reform Act provides for transitional provisions to apply to decisions made before the commencement date of the reform Act (1 December 2005). The transitional provisions which are contained in Sch 1, are relevantly as follows:
“Where proceedings are commenced on or after the commencement day in relation to a migration decision made before the commencement day, and actual notification of the decision is given before the commencement day:
(a)section 477 of the Migration Act 1958 applies as if the actual notification of the decision took place on the commencement day; and
(b)section 477A of that Act applies as if the actual notification of the decision took place on the commencement day; and
(c)section 486A of that Act applies as if the actual notification of the decision took place on the commencement day.”
On the evidence before me it is clear that the applicant had actual notice of the Tribunal’s decision at least as at the date he wrote to the Minister seeking his intervention – 26 February 1997 and also as at
17 July 1999 and 2 June 2000 when he joined the legal proceedings. All well before 1 December 2005. Therefore the applicant had actual notice of the Tribunal’s decision before the date now deemed by the relevant legislation as the date of actual notice. The application to the Court now was filed well after the periods (both mandatory and discretionary) set out in s.477 of the Act.
The Reform Act commenced operation on 1 December 2005 and, as such, actual notification of the decision (if it was made prior to that day) is taken to have occurred on that day. In these circumstances, if an application is filed later than 28 days after 1 December 2005 (
28 December 2006), and no extension of time is given extending that 28 day period by up to 56 days pursuant to s.477(2) (that is, up until and including 23 February 2006), the application is incompetent. That is, it lacks jurisdiction to be tried before this Court. I note that the applicant, in his application for review, has made a request for an order that the time for making the application be extended. However, I further note that the application was filed on 7 September 2006, after the maximum “grace” period allowable under the transitional provisions. In this regard, the applicant’s request in his application, that the Court grant an extension of time to the applicant for the filing of his application, was not made within 84 days of the (deemed) actual notification of the Tribunal’s decision as required by s.477(2)(a). As such the application for extension is refused. The Court has no power to make the orders sought by the applicant.
For the sake of clarity, and for the applicant's benefit, I again note on the evidence before me that it is clear that the applicant had actual notice of the Tribunal's decision, if not by way of letter from the Tribunal, then at least as at the date he wrote to the then Minister for Immigration seeking his intervention. This was 26 February 1997. Further, at least also as at 17 July 1999 and 2 June 2000 when the applicant joined legal proceedings before the High Court. All these dates are well before the critical date of 1 December 2005.
It is clear that the Applicant had actual notice of the Tribunal's decision before the date which is now deemed by the relevant legislation as the date of actual notice. As the application to the Court now was filed well after the periods, both the mandatory and the discretionary periods as set out in s.477 of the Act, the Court has no power to make the orders sought by the applicant and as such the application to this Court is dismissed on that basis.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:

Date: 25 January 2007