SZKEI v Minister for Immigration

[2007] FMCA 1122

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKEI v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1122

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa.

PRACTICE & PROCEDURE – Show cause hearing – jurisdiction – whether application out of time – no jurisdiction – application dismissed as incompetent.

Migration Act 1958 (Cth), s.477

Applicant: SZKEI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 424 of 2007

Judgment of: Scarlett FM

Hearing date: 4 July 2007

Date of last submission: 4 July 2007

Delivered at: Sydney

Delivered on: 4 July 2007

REPRESENTATION

Applicant: In person

Solicitor for the Respondent: Ms Johnson

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Application is dismissed as incompetent.

2. The Applicant is to pay the First Respondent's costs fixed in the sum of $2,700.00.

3. I allow three (3) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 424 of 2007

SZKEI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal.  The decision was signed on 13^th April 2006 and handed down on 11^th May 2006.  The Applicant did not lodge her application for review and affidavit in support until 9^th February 2007.

2. In the application the Applicant applied for an order that the time for making the application be extended under s.477 of the Migration Act.  In the application she says:

   My English is not good, and I do not have enough money, so I could not lodge my review application within 28 days, I hope that you can accept my application now.  Thank you!

3. The unfortunate fact for the Applicant is that the Court cannot accept the application. In a Response filed on 20^th February 2007 the First Respondent says:

   The Court has no jurisdiction to review the Refugee Review Tribunal decision made on 13 April 2006 and handed down on 11 May 2006 (“the Tribunal decision”). Sub-section 477(1) of the Migration Act 1958 (Cth) applies and the application in this Court was not filed within 28 days of actual notification of the Tribunal decision.

4. That statement in the Response is a correct summary of the facts.  The Applicant confirms that she was notified of the decision on 18^th May 2006 and it is quite clear the application was not filed until 9^th February 2007. That is a delay of nearly 9 months and is clearly outside the 28 day period as provided by sub-s.477(1). Sub-section 477(2) says as follows:

   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.

   (b) The Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.

5. It is quite clear that although an application for an order extending the time was made in the application filed on 9^th February 2007 that application was not made within 84 days of the actual notification of the decision.  The difficulty for the Applicant is the restriction provided in sub-section (3) which says:

   Except as provided by sub-section (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 sub-section (1) outside that 28 day period.

6. It follows that the Court has no power to make an order extending the time for making the application.  

7. There is an application for costs and indeed the Federal Magistrates Court Rules provide that an order for cost may be made in circumstances where an application is dismissed as incompetent. The amount sought is $2,700.00. The Applicant is not employed and I will take that into account.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  13 July 2007