SZKDC v Minister for Immigration & Anor

[2007] FMCA 540

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKDC v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 540

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of Indonesia claming fear of persecution for reasons of his religion and ethnic background.

PRACTICE & PROCEDURE – Objection to competency – no jurisdiction – out of time.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.417, 477(1), 477(2)

Applicant: SZKDC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 338 of 2007

Judgment of: Scarlett FM

Hearing date: 26 March 2007

Date of Last Submission: 26 March 2007

Delivered at: Sydney

Delivered on: 26 March 2007

REPRESENTATION

The Applicant: Appeared in person

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is not competent.

2. The application is dismissed for want of jurisdiction.

3. The applicant is to pay the first respondent’s costs fixed in the sum of $2,000.00 and I will allow three (3) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 338 of 2007

SZKDC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal.  The decision was signed on 16^th March 2006 and handed down on 6^th April.  The applicant did not commence proceedings seeking judicial review until 5^th February 2007. In his application he applies for an order that the time for making the application be extended under s. 477 of the Migration Act. In his affidavit filed on

   
   

   5^th February 2007 the applicant says:

   I am so sorry being late to apply to RRT because I have been waiting for Ministerial decision intervention.

2. The lawyers for the Minister filed a response in which they contend that an extension of time cannot be granted as the application was filed outside the maximum extendable period of 84 days required by sub‑s. 477(2) of the Migration Act. They have also on 1^st March 2007, filed a notice of objection of competency.  That notice of objection to competency was accompanied by an affidavit of Zoe McDonald, solicitor, in which she sets out that the Tribunal decision was handed down on 6^th April 2006. From annexure A to that affidavit which is the Tribunal's check list for handing down a decision, it is noted that the applicant was present when the decision was handed down.

3. The applicant, again from Ms McDonald's affidavit, wrote to the Minister on 2^nd May 2006 seeking Ministerial intervention on humanitarian grounds under s. 417 of the Migration Act. The Minister made a decision on 20^th December 2006 not to consider exercising her power in this case.  The Ministerial Intervention Unit of The Department of Immigration & Multicultural Affairs wrote to the applicant on 22^nd January 2007 advising him of this fact, hence it would appear that the applicant commenced proceedings in this Court or, more correctly, sought to commence proceedings in this Court.

4. Unfortunately for the applicant he appears to have been badly advised, or not advised at all.  In effect he has taken proceedings the wrong way round.  I am satisfied that the applicant was actually notified of the decision on 6^th April 2006.  He attended the handing down on that date.  He did not file his application for judicial review until

   
   

   5^th February 2007. Under s.477(1) of the Migration Act an application for review must be filed at the registry of the Court within 28 days of the actual notification of the decision.

5. The application for judicial review, having been filed on

   
   

   5^th February 2007, was not filed within 28 days of the notification as required by s.477(1). In certain circumstances the Court has power to extend the time. That power is contained in s.477(2). That sub-section says:

   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.

6. In other words, both conditions in sub-s.2(a) and (b) must be met.

7. In this case the application was not made within 84 days of the actual as opposed to the deemed notification of the decision.  For that to have been done, the application would have had to have been filed by

   
   

   29^th June 2006.  The applicant chose not to apply to the Court when the decision was handed down on 6^th April; he chose to seek Ministerial intervention instead.  What then happened is that whilst he was waiting for the question of Ministerial intervention to be decided the time went by so that his application to apply for judicial review could not be made as the time had expired.

8. The Court has no power to extend the time after 84 days.  What this means is that the Court does not have the jurisdiction to hear the application.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  10 April