SZJIY v Minister for Immigration
[2006] FMCA 1855
•27 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJIY v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1855 |
| MIGRATION – Summary dismissal where court lacks jurisdiction. |
| Migration Act 1958, ss.48B, 417, 477 |
| Minister for Immigration v SZFDE [2006] FCAFC 142 |
| Applicant: | SZJIY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2603 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 27 November 2006 |
| Date of last submission: | 27 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2006 |
REPRESENTATION
| For the Applicant: | In Person |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $1,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2603 of 2006
| SZJIY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Section 477 of the Migration Act 1958 (the “Act”) places an absolute prohibition on this court having jurisdiction in respect of a migration decision where no application is made to the court within the time limits set out within that section. These are now well-known as being, relevantly to this case, 28 days from 1 December 2005 or a period of a further 56 days after the expiration of that 28 days, with leave of the court. This applicant falls within that prohibition because his application to the Refugee Review Tribunal against a decision of the delegate that was made on 17 February 2000 was determined by the Tribunal on 23 June 2000 and handed down on 11 July 2000.
The applicant was aware of the result of the Tribunal’s decision shortly thereafter because on 17 August 2004 he wrote to the then Minister for Immigration seeking a visa under s.417 of the Act. The first paragraph of that letter, found at [CB 45], states:
“I am writing to you relating to my application for a protection visa in Australia. My application for a protection visa has been refused by the Refugee Review Tribunal (RRT).”
The applicant has failed for six years to file an application to this court or to the Federal Court for review of that decision of the Tribunal and consequently the court is prohibited by s.477 from entertaining his application.
I asked the applicant why the delay occurred. He blamed his lack of English and his migration agent. The full bench of the Federal Court in Minister for Immigration v SZFDE [2006] FCAFC 142 found that even if the RRT decision was affected by the fraud of a migration agent, it would not necessarily constitute jurisdictional error, per Allsop and Graham JJ, French J dissenting.
I have no evidence about the actions of this particular migration agent or exactly what his unsatisfactory activity is meant to have been. The applicant says that the case mounted before the Tribunal was not the case that he put to his agent. He tells me that he has evidence of his real claim. If that is the case he can of course apply to the Minister under s.48B of the Act for leave to make a further application.
In the meantime this application must be dismissed and the applicant must pay the respondent’s costs which I assess in the sum of $1,250.00.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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