SZKET v Minister for Immigration & Anor
[2007] FMCA 1007
•18 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKET v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1007 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant the applicant a protection visa. PRACTICE & PROCEDURE – Application to show cause – jurisdiction – out of time – incompetent. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.417, 477, 477(1), 477(2) Migration Litigation Reform Act (2005) (Cth), cl.42 of pt.2 of sch.1 |
| Applicant: | SZKET |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 458 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 June 2007 |
| Date of Last Submission: | 18 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 18 June 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Ms Kantaria |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The application is dismissed as incompetent.
The applicant is to pay the first respondent’s costs fixed in the sum of $2,300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 458 of 2007
| SZKET |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The application before the Court today is an application to show cause. The first respondent Minister submits that the substantive application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) is incompetent in that the Court has no jurisdiction to hear it. The Minister submits that the application is out of time. It is clear that the substantive application is an application for judicial review of a very old decision of the Refugee Review Tribunal.
The applicant is a citizen of the People's Republic of China.
He applied for a protection (Class XA) visa on 26th February 1997. That application was refused by a delegate of the Minister and on
11th June 1997 the applicant sought a review of that decision from the Refugee Review Tribunal.
The Tribunal invited the applicant to attend a hearing on
10th September 1998. The applicant attended that hearing. He gave evidence with the assistance of an interpreter. The following day,
11th September 1998, the Tribunal made a decision affirming the decision of the delegate not to grant the applicant a protection visa.
The applicant has told the Court today that he never received a copy of that decision, although his application to the Court shows that he was notified on 11th September 1998. At page 59 of the Court book is a copy of a letter dated 11th September 1998 addressed to the applicant at the address that he gave on his application for review, and that he affirmed on his reply to hearing invitation form, which was received by the Tribunal on 14th August 1998.
However, the applicant told the Court that he had changed his address by then and that he signed the form and gave it to his migration agent. There is no record on the Court book of any notice of change of address for service. In any event, the applicant does not appear to have moved very far, as the address that he gives today is in the same suburb as his address in 1998.
The applicant told the Court that he did not become aware of the Tribunal's decision until he was located by officers of the Minister's Department on 8th February 2005 and placed in immigration detention. He sought the advice of a migration agent, who, on 12th September 2005 made an application to the Minister under the provisions of s.417 of the Migration Act 1958 (Cth) (“the Act”).
On 14th December 2006 the Minister decided not to consider exercising her power under s.417 of the Act. The applicant then filed an application for judicial review in this Court on 13th February 2007. Although he told the Court something different today, in his application he admitted having been notified on 11th September 1998.
The applicant, in effect, says that he did not know that he had been refused until he was taken into detention. When he consulted a migration agent, the migration agent did not tell him about applying to the Court but chose to make an application to the Minister to exercise the powers under the provisions of s.417 of the Act.
The fact is that there was really no other advice or assistance, in my view, that the migration agent could have given. The application to the Court today is clearly out of time; and even if the applicant had commenced proceedings in 2005, he would still have faced a great deal of difficulty because of the delay in bringing these proceedings.
I am satisfied that the Court has no jurisdiction to hear the applicant's application. Under s.477(1) of the Act, an application to the Court must be made within 28 days of the actual notification of a Tribunal decision. Whilst sub-s.2 permits the Court to extend the 28-day time period by up to 56 days, that would have been no assistance to the applicant in this case.
As the solicitor for the first respondent submits, by virtue of the transitional provisions in cl.42 of pt.2 of sch.1 of the Migration Litigation Reform Act (2005) (Cth), where proceedings are commenced on or after the commencement day in relation to a migration decision made before the commencement day and the applicant was actually notified prior to 1st December 2005, then s.477 deems that actual notification took place on that day. Thus, any application for judicial review must have been made within 84 days of 1st December 2005.
In my view, an application for judicial review, including an extension of time, should have been made within 28 days of 1st December 2005. Had that been done, the Court would have had the power to extend the time. In any event, unless the application was made prior to
23rd February 2006, the application is clearly out of time.
This application was filed on 13th February 2007, which is well outside the time, and the Court has no power to allow an applicant to make an application beyond the 28-day period.
There is evidence which goes to show that actual notification took place as a result of the Tribunal's letter of 11th September 1998. In any event, as the solicitor for the first respondent Minister submits, it can be inferred that the applicant was actually notified of the Tribunal's decision by 12th September 2005 when the s.417 application was made to the Minister. In my view it matters not because this application is so far out of time that this Court cannot possibly have any jurisdiction.
The other comment that I would make is that the first respondent Minister and the Minister's Department do not appear to have acted with any degree of speed whatsoever. If the applicant's application for review by the Refugee Tribunal was refused on 11th September 1998, it is surprising, to say the least, that he was able to remain in the community and not come to notice until 8th February 2005. At that stage he was placed in immigration detention.
It is also noteworthy that his application to the Minister to exercise the Minister's discretion was not made until 12th September 2005, but the Minister did not advise the applicant that this discretion would not be exercised until 14th December 2006. The delays in this matter on the part of the Minister's Department are nothing short of astonishing.
By comparison, the application to the Court is made on 13th February 2007. It has been before the Court on two previous occasions:
22nd March and 14th May 2007. On 14th May 2007 it was listed for a show cause application before me today. In fairness, I would point out that the first respondent's solicitors requested the Court to deal with this matter at an early date.
In any event, the Court has no jurisdiction to hear this matter. I am satisfied that the application is incompetent; it is clearly out of time.
There is an application for costs on behalf of the first respondent Minister in the sum of $2,300.00. The applicant has told the Court that he has no income because he has no work. That may well be the case, but that is not a reason not to make a costs order. I have, during this hearing, made some critical comments of the delay by the Minister's department in dealing with this applicant's case, and it is not necessary to repeat them.
In fairness, however, I am satisfied that that delay does not extend to the Minister's legal advisers, who appear to have dealt with this matter reasonably promptly, and indeed, requested an early date for a show cause hearing. In my view this is an appropriate matter for an order for costs, and the amount sought, being $2,300.00 is a reasonable figure in the circumstances.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 27 June 2007
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