SZKFC v Minister for Immigration

[2007] FMCA 315

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKFC v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 315

MIGRATION – Visa – protection visa – jurisdiction – where Court has no jurisdiction – application out of time.

Migration Act 1958 (Cth), s.477

Applicant: SZKFC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 489 of 2007

Judgment of: Scarlett FM

Hearing date: 5 March 2007

Date of last submission: 5 March 2007

Delivered at: Sydney

Delivered on: 5 March 2007

REPRESENTATION

Solicitor for the Applicant: Mr Prince

Solicitor for the Respondent: Ms Kantaria

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Application will be dismissed for want of jurisdiction.

2. The Applicant is to pay the First Respondent's costs fixed in the sum of $230.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 489 of 2007

SZKFC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There is an application before the Court for review of a decision of the Refugee Review Tribunal. The date of the decision is 3^rd May 2006, the application says that the date when notification of the decision is received was 23^rd May 2006, that is the date that has been accepted by the lawyers for the Minister. The application now before me is for a finding that the Court does not have jurisdiction to hear the Applicant’s application on the basis that it is out of time. The submission is that under s.477 of the Migration Act:

   An application to this Court must be made to the Court within 28 days of the actual as opposed to the deemed notification of the decision. 

2. Section 477 does allow the Court to make an order to extend the 28‑day period by up to 56 days. However, under s.477(2)(a) an application for an extension of time must be made to the Court within 84 days of the actual as opposed to the deemed notification of the decision.

3. In this case the application for an extension of time has been made more than 84 days after the notification. I take notice of the fact that the application was filed on 14^th February and that more than 84 days have elapsed between 23^rd May 2006 and 14 February 2007. Whilst Mr Prince for the Applicant has put to me that notification is a matter of fact, or a mixture of fact and law and that there should be evidence of it, in my view, the Applicant's own application in which he applies for an extension of time sets out the date of notification.  In my view, the Court is entitled to rely on that.

4. As the Applicant was notified of the decision on 23^rd May 2006 and an application was not filed until 14^th February 2007, it is out of time. It is so far out of time that the Court does not have power under s.477 of the Act to grant an extension of time. It follows therefore that the Court does not have jurisdiction and the application must be dismissed for want of jurisdiction.

5. This is a matter where a costs order is appropriate. The amount sought is $230.00, which is a commendably modest sum.  I have no hesitation in awarding that. 

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

Associate:  V. Lee

Date:  13 March 2007