SZKBP v Minister for Immigration

[2007] FMCA 97

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKBP v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 97

MIGRATION – Review of Refugee Review Tribunal decision – summary dismissal of show cause application as incompetent – application filed out of time.

Migration Act 1958 (Cth), s.477

SZICO v Minister for Immigration  [2006] FCA 1803

Applicant: SZKBP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG208 of 2007

Judgment of: Driver FM

Hearing date: 5 February 2007

Delivered at: Sydney

Delivered on: 5 February 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr B. Cramer
Blake Dawson Waldron

INTERLOCUTORY ORDERS

1. The Court directs that the name of the first respondent be amended to the Minister for Immigration and Citizenship.

2. The application is dismissed as incompetent.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG208 of 2007

SZKBP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application under the Migration Act 1958 (Cth) (“the Migration Act”) seeking a review of a decision of the Refugee Review Tribunal (“the Tribunal”). The application was filed on

   
   

   22 January 2007.  It is supported by an affidavit filed on the same day annexing the decision of the Tribunal.  The application asserts that the Tribunal decision was made on 19 September 2006 which I take to be the date the decision was handed down.  The application also asserts that the applicant was notified of the Tribunal decision on

   
   

   28 September 2006.

2. No doubt in light of those asserted facts, the Minister filed a notice of objection to the competency of the application on 25 January 2007. The objection to competency is repeated in the Minister’s response filed on the same day. The Minister asserts that the application was not filed within the time prescribed by s.477(1) of the Migration Act. Neither was the application filed within the further time within which an extension of time might be sought pursuant to s.477(2) of that Act.

3. The Minister asserts that the application was made 116 days after the date of actual notification of the Tribunal decision.  The response and objection to competency are supported by the affidavit of Ben Cramer filed in court by leave today.  That affidavit establishes that the applicant was put on notice of the likelihood of the jurisdictional issue being raised at the first court date today.  When I raised the issue of the competence of the application with the applicant, he did not wish to say anything. 

4. The competence of the application by reference to the time limitations imposed by s.477 is an issue going to the jurisdiction of the Court. This was confirmed recently by the Federal Court in SZICO v Minister for Immigration [2006] FCA 1803. That decision is binding on me. The effect of s.477 is that if an application is not filed within 84 days of the date of actual notification of the Tribunal decision this Court has no jurisdiction to hear and determine it. I am satisfied on the basis of the applicant’s own assertions in his application that he was actually notified of the Tribunal decision more than 84 days before his application was filed. The application is therefore incompetent and should be dismissed. I will so order. I will direct that the name of the first respondent be amended to the Minister for Immigration and Citizenship.

5. As to costs, the application having been dismissed, costs should follow the event.  The event-based scale of costs applicable in migration proceedings pursuant to the Federal Magistrates Court Rules 2001 (Cth) prescribes the sum of $1,000 payable at this stage of a proceeding. The Minister properly seeks a lesser sum of $700. The applicant did not wish to be heard on costs. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application which I fix in the sum of $700.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  13 February 2007