SZKDF v Minister for Immigration
[2007] FMCA 568
•26 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKDF & ORS v MINISTER FOR IMMIGRATION | [2007] FMCA 568 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Status – refugee status – refusal. Visa – protection visa. |
| Migration Act 1958, ss.5, 91X, 477 Migration Litigation Reform Act 2005, s.2, sch. 1 cl.42 |
| Applicants: | SZKDF, SZKDG, SZKDH & SZDKI |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File number: | SYG 342 of 2007 |
| Judgment of: | Cameron 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 by telephone |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Pursuant to r.44.12 of the Federal Magistrates Court Rules the application be dismissed.
The first and second applicants pay the first respondent's costs of the proceedings fixed in the amount of $1,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 342 of 2007
| SZKDF, SZKDG, SZKDH & SZKDI |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
In this matter by application dated 5 February 2007 the applicants seek review of the decision of the Refugee Review Tribunal dated 27 April 2004, which affirmed an earlier decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs of 3 December 2003 refusing the applicant's application for a protection visa.
The applicants say in their application that they received notification of the Tribunal's decision on 26 May 2004. In their application they seek an extension of time under s.477 of the Migration Act 1958. The first respondent says that the applicants have already sought review of the decision and have even sought special leave of the High Court.
Section 91X of the Migration Act provides that the Court must not publish the applicants' names.
The first respondent has submitted that the application has been brought out of time and that it is too late to seek an extension of time under s.477 of the Act. In my view, the first respondent's submission is correct. Section 477 of the Migration Act provides 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.
Section 5 of the Act provides that the Tribunal's decision is a "migration decision". Essentially, s.477(3) prevents the Court extending time for the commencement of the proceedings unless the application for extension of time is granted under sub-s.477(2). The Migration Litigation Reform Act 2005 makes provision for the application of s.477 in circumstances where the Tribunal's decision was notified to the applicant before s.477 commenced operation, as is the case here. Clause 42 of sch.1 to that Act provides:
Where proceedings are commenced on or after the commencement day –
which these were –
in relation to a migration decision made before the commencement day –
which this one is –
and actual notification of the decision is given before the commencement date –
as the applicants concede in their application –
(a) s.477 of the Migration Act 1958 applies as if the actual notification of the decision took place on the commencement date.
The commencement date is identified in the information found within s.2 of the Migration Litigation Reform Act which identifies it to be
1 December 2005. Therefore, for applications governed by the Migration Litigation Reform Act any application to this Court for review of the decision of the Tribunal had to be filed by 29 December 2005 unless an extension of time was sought by 23 February 2006, in which case time could have been extended up to 23 February 2006.
As I have already noted, the application in these proceedings discloses that the applicants were notified of the decision on 26 May 2004. However, the application was not filed until 5 February 2007, which is almost 12 months later than the date when the Court could last have extended leave for filing.
The consequence of all these facts is that the application has been filed out of time and the Court has no power to extend the time for the commencement of the proceedings. Consequently, the application must be dismissed.
In these proceedings the applicants have been unsuccessful and the Minister has sought an order for costs. In the usual course of events costs would follow the event and there seems to be no reason why that situation should not apply in the circumstances of these proceedings. The Minister has sought an order for costs in the amount of $1,000, which in the circumstances is reasonable.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 18 April 2007
0
0
2