SZJNX v Minister for Immigration
[2007] FMCA 136
•9 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJNX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 136 |
| MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – delay in filing application for judicial review – whether notification of Tribunal’s decision is more than 84 days from filing of application for judicial review. |
| Migration Act 1958 (Cth), ss.417; 477; 477(2); 477(3) Migration Litigation Reform Act 2005 (Cth), sch.1 pt.2 cl.42 |
| Applicant: | SZJNX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3040 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 9 February 2007 |
| Date of last submission: | 9 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 9 February 2007 |
REPRESENTATION
| Applicant appeared on her own behalf |
| Solicitor for the Respondent: | Ms Z. Bauer |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3040 of 2006
| SZJNX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By way of application filed on 19 October 2006 in this Court, the applicant seeks judicial review of a decision of the Refugee Review Tribunal in respect of which the applicant was notified on 22 March 2004.
The applicant filed an affidavit on 19 October 2006 in support of her application annexing the Tribunal's decision. The applicant also filed an affidavit on 2 February 2007 seeking to explain her delay in filing her proceeding in this Court. However, as the first respondent correctly submits, pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”); an application for judicial review must be made to this Court within 28 days of the actual as opposed to deemed notification of the decision.
Section 447(2) of the Act provides that this Court may extend the 28 day period by up to a further 56 days if an application for that order is made within 84 days of the actual as opposed to deemed notification for decision and the Court is satisfied that it is in the interests of the administration of justice to do so. Section 477(3) of the Act provides that, except as provided in s.477(2) of the Act, the 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.
As stated above, the applicant has stated in her application that she received notification of the Tribunal's decision on 22 March 2004.
By virtue of transitional provisions in cl.42 of sch.1 pt.2 of the Migration Litigation Reform Act 2005 (Cth), where a proceeding is commenced after 1 December 2005 in this Court in respect of a migration decision before 1 December 2005 and the applicant was actually notified of the decision prior to 1 December 2005, then actual notification for the purposes of s.477 is deemed to be 1 December 2005.
It is clear from the Court book which, for the purposes of this hearing, I mark exhibit 1R, that on 23 February 2006 the applicant wrote to the first respondent enclosing documents in support of an application for ministerial intervention pursuant to s.417 of the Act.
In the circumstances, at least by that date the applicant had actual notification of the Tribunal's decision. The applicant's application was filed on 19 October 2006. That date is more than 84 days from
23 February 2006. In the circumstances, s.477(3) of the Act provides that this Court does not have power to make an order extending the time for filing of an application in this Court.In the circumstances, this Court has no jurisdiction to consider the applicant's application filed on 19 October 2006 and the proceeding before this Court is dismissed.
RECORDED : NOT TRANSCRIBED
The amount sought by the first respondent is in fact less than provided for in this Court's costs schedule. The relevant costs schedule for this matter is an amount of $2,500; the first respondent is seeking $1,800.
RECORDED : NOT TRANSCRIBED
ORDERS DELIVERED
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 22 February 2007
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