SZJYV v Minister for Immigration

[2007] FMCA 437

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJYV V MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 437

MIGRATION – Notice of motion to dismiss application filed out of time – time limits in s.477 apply even if decision is infected with jurisdictional error.

Migration Act 1958 (Cth), ss.476, 477
Federal Magistrates Court Rules 2001 r.13(10)(a)

Applicant: SZJYV

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 14 of 2007

Judgment of: Turner FM

Hearing date: 1 March 2007

Date of last submission: 1 March 2007

Delivered at: Sydney

Delivered on: 1 March 2007

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Ms. K. Hooper of DLA Phillips Fox

ORDERS

1. The application is dismissed.

2. The name of the first respondent is amended to the Minister for Immigration and Citizenship.

3. The applicant is to pay the costs of the first respondent fixed in the amount of $2000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 14 of 2007

SZJYV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is a notice of motion to dismiss the above application under Rule 13(10)(a) of the Federal Magistrates Court 2001 on the basis that the applicant has no reasonable prospect of prosecuting the claim.

2. The applicant deposed in his affidavit of 2 January 2007 that he received notification of the Refugee Review Tribunal decision on 30 August 2006. The applicant filed his application with this Court on

   
   

   2 January 2007, which is over 4 months since notification of the decision to him.

3. Section 476 sets out the jurisdiction of the Federal Magistrates Court regarding migration decisions.

4. Section 5 defines “migration decision” as:

   a)privative clause decision; or

   b)a purported privative clause decision; or

   c)non-privative clause decision;

5. Section 5E defines a “purported privative clause decision” as follows:

   (1)  In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:

   (a)  a failure to exercise jurisdiction; or

   (b)  an excess of jurisdiction;

   in the making of the decision.

   (2)  In this section, decision includes anything listed in subsection 474(3).

6. Section 477 sets out the time limits on applications to the Federal Magistrates Court regarding migration decisions as follows:

   (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.

7. That time limits in s.477 apply even if the decision is infected with jurisdictional error (s.5E).

8. The Court finds that the application was filed out of time.

9. The Court orders that the application is dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate:  Sarah James

Date:  16 April 2007