SZKGG v Minister for Immigration
[2007] FMCA 831
•21 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKGG v MINISTER FOR IMMIGRATION& ANOR | [2007] FMCA 831 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. MIGRATION – Visa – protection visa – refusal. MIGRATION – Proceedings brought out of time – no power to extend time to bring proceedings. |
| Migration Act 1958, ss.5, 91X, 477 Federal Magistrate Court Rules 2001, r.44.12 Migration Litigation Reform Act 2005, sch.1 cl.42 |
| Applicant: | SZKGG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 626 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 21 May 2007 |
| Date of Last Submission: | 21 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 21 May 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Pursuant to Part 44.12 of the Rules of the Court, the application be dismissed.
The applicant pay the first respondent's costs fixed in the amount of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 626 of 2007
| SZKGG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By an application filed on 23 February 2007, the applicant seeks review of a decision of the Refugee Review Tribunal (“Tribunal”) signed on 7 October 2005 which affirmed an earlier decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“Minister”) dated 11 July 2005, refusing the applicant's application for a protection visa.
Section 91X of the Migration Act (“Act”) provides that the Court must not publish the applicant's name.
These proceedings were before the Court today on a show cause application, pursuant to r.44.12, and the Minister has submitted that the applicant's application was brought out of time.
Section 477 of the Act provides the time limits which apply to proceedings for judicial review of decisions of the Tribunal in respect of which this Court has jurisdiction. Sub-section 1 of s.477 provides that proceedings must be brought within 28 days of the applicant actually being notified of the decision of the Tribunal. Sub-section 2 provides that the Court may extend that period by 56 days, providing a total period of 84 days within which to bring proceedings if, at some time during the 56 days after the expiry of the 28 day period, an application for extension of time is made. Sub-section 3 provides that the Court may not permit proceedings to be brought outside the 28 day period unless leave is given in the 56 day period after that 28 day period.
Section 477 talks of judicial review of migration decisions, and
s.5 of the Act makes it clear that the decision of the Tribunal in this instance is such a migration decision. Therefore, the time limits under
s.477 of the Act apply in this case.
Because the Tribunal's decision was signed on 7 October 2005, and was received by the applicant either on 18 October 2005, as his application to this Court says, or on 10 October 2005, as his letter to the Minister, which is annexure A to the affidavit of Nicola Johnson, sworn 5 March 2007 indicates, the time limit in these proceedings is governed by the Migration Litigation Reform Act 2005, which inserted s.477 into the Act.
The relevant transitional provision is found in cl.42 of
sch.1 to the Migration Litigation Reform Act, and it says this:
Where proceedings are commenced on or after the commencement day
and these proceedings were commenced after the commencement day as will be discussed shortly
in relation to a migration decision made before the commencement day
as happened in this case
and actual notification of decision is given before the commencement day:
(a) section 477 of the Migration Act 1958 applies as if the actual notification of the decision took place on the commencement day …
The date which is the commencement day, as understood by
cl.42, was 1 December 2005. So here the proceedings were certainly commenced after the commencement day, because they were commenced on 23 February 2007.
The Tribunal’s decision was made before 1 December 2005, and the actual notification of the decision to the applicant was in October 2005. That means that s.477 of the Act operates as if the applicant had been notified of the Tribunal's decision on 1 December 2005. In those circumstances, any application to this Court for a review of the Tribunal's decision 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.
However, in this case, the application was not filed until 23 February 2007, almost one year after the expiry of the limitation period.
The applicant has told the Court today that following receipt of the Tribunal's decision, he made representations to the Minister, and that the correspondence he received from the Minister's department and from the Minister, and apparently the advice received from departmental officers when the applicant was on hunger strike, did not draw his attention to the need to bring proceedings within the time limit, or misled him as to the need to do so.
There is no need for the Court to consider whether or not this is the case because sub-s.3 of s.477 gives this Court no discretion to extend the time to bring proceedings beyond 23 February 2006. There is simply no power in the Court to make an order allowing - or which has the effect of allowing - the applicant to bring the application in the circumstances of this case.
The consequence of this is that the application has been brought out of time, and it must be dismissed.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 5 June 2007
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