SZJNF v Minister for Immigration

[2006] FMCA 1892

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJNF v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1892

MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – show cause hearing pursuant to r.44.12 of Federal Magistrates Court Rules 2001 – whether Court has jurisdiction to hear application pursuant to s.477 of Migration Act 1958 (Cth).

Federal Magistrates Court Rules 2001, r.44.12, sch.1
Migration Act 1958 (Cth), ss.477; 477(2); 477(3)

Applicant: SZJNF

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2962 of 2006

Judgment of: Emmett FM

Hearing date: 12 December 2006

Date of last submission: 12 December 2006

Delivered at: Sydney

Delivered on: 12 December 2006

REPRESENTATION

The Applicant appearing on her own behalf

Solicitors for the Respondent: Ms A. Mansour, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2962 of 2006

SZJNF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By response filed on 17 November 2006, the first respondent seeks a hearing pursuant to Rule 44.12 of the Federal Magistrates Court Rules 2001 on the basis that the Court has no jurisdiction to entertain the applicant's application. 

2. In support of the application, the first respondent tendered a letter dated 30 November 2006 from her solicitors, Clayton Utz, to the applicant at the address identified by her for service.  The letter informed the applicant that her matter was listed for a directions hearing on
   7 December 2006 at 9.30am, and informed her that on that date the first respondent would seek to have her application dismissed on the ground that the Court does not have jurisdiction, as set out in the first respondent's response filed on 17 November 2006.  That letter was marked ‘Exhibit 1R’. 

3. The applicant commenced her proceeding in this Court, seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 23 April 2002, by way of application filed on 13 October 2006.  That application identified the Tribunal decision dated 23 April 2002 as the decision in respect of which the applicant sought judicial review.  The application stated that the applicant was notified of the decision on 30 April 2002. 

4. Because Exhibit 1R was sent on 30 November 2006 by Clayton Utz by ordinary post to the applicant, although the first respondent sought an order at the directions hearing on 7 December 2006 that the application be dismissed, the Court was concerned as to whether or not there had been sufficient notice to the applicant that the order sought in the response would be sought on 7 December 2006.  For that reason, the first respondent's show cause hearing was set down for this morning to ensure that the applicant had sufficient time to consider the matters raised in the first respondent's response.

5. The attachment to the response sets out the relevant law, namely, that, by operation of the transitional provisions to the Migration Litigation Reform Act 2005, in circumstances where the applicant stated that she was notified of the decision of the Tribunal on 30 April 2002, she is taken to have been actually notified of the decision on
   1 December 2005. 

6. Section 477 of the Migration Act 1958 (Cth) (“the Act”) requires that an application to this Court be made within 28 days of the actual, as opposed to deemed, notification of the decision. 

7. Section 477(2) of the Act allows the Court to extend that 28‑day period by up to 56 days if an application for that order is made within 84 days of the actual, as opposed to the deemed, notification of the decision and the Court is satisfied that it is in the interests of the administration of justice to do so.

8. There is no evidence before this Court, and none has been foreshadowed by the applicant, to suggest that she received notification of the decision other than on 30 April 2002. In the circumstances, the applicant is deemed to have received notification of the Tribunal decision on 1 December 2005. The applicant did not make an application to this Court within 28 days of 1 December 2005, nor did she apply for an extension of time within which to make her application within 84 days of 1 December 2005. The applicant's application filed on 13 October 2006 is clearly outside the mandatory time frame. Section 477(3) of the Act provides that, except as provided by s.477(2) of the Act, to which I have referred above in these Reasons, this Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application outside the 28‑day period.

9. For those reasons, this Court has no jurisdiction to consider the applicant's application. 

10. Accordingly, the applicant's proceeding, commenced by way of application filed on 13 October 2006, is dismissed. 

    RECORDED  :  NOT TRANSCRIBED

11. The first respondent seeks costs fixed in an amount of $1,200. I note that such sum is less than the amount provided in Schedule 1 Part 2 paragraph 1(b) being the relevant paragraph in the Federal Magistrates Court Rules2001. 

    ORDERS DELIVERED

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

Deputy Associate:  S. Tsang

Date:  19 December 2006