SZKHU v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKHU v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 463

MIGRATION – Review of Refugee Review Tribunal decision – show cause application filed out of time – dismissal of application as incompetent.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.477
Migration Litigation Reform Act 2005 (Cth)

SZICV v Minister for Immigration [2007] FCAFC 39

Applicant:

SZKHU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG762 of 2007

Judgment of:

Driver FM

Hearing date:

2 April 2007

Delivered at:

Sydney

Delivered on:

2 April 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms A Nanson
Australian Government Solicitor

INTERLOCUTORY ORDERS

The application is dismissed as incompetent.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG762 of 2007

SZKHU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The application was filed on 6 March 2007. The Tribunal decision was handed down on 4 March 2003. The application asserts notification of the decision on that date. Pursuant to item 42 of Part 2 of schedule 1 to the Migration Litigation Reform Act 2005 (Cth), the applicant is taken to have been notified of the decision on 1 December 2005.
As is now well established, an application that is not filed within 84 days of the date of actual notification of a decision is out of time and no extension of time can be granted[1]. The Court is thus left in the position of being required to dismiss such applications. This was made clear both to the applicant and the Court in the Minister’s response filed on 21 March 2007. I incorporate the grounds set out in the response for the purposes of this judgment:
[1] See SZICV v Minister for Immigration [2007] FCAFC 39 at [28]-[33] per Buchanan J
That the Court lacks jurisdiction to hear the application [Rule 44.06(2)(a)]
Particulars
a) The application is out of time.
i) The decision of the Refugee Review Tribunal (RRT) was made on 11 February 2003 and was handed down on 4 March 2003.
ii) Whilst the applicant was actually notified of the decision on or around 4 March 2003 (as stated in the application), pursuant to Part 2, item 42 of Schedule 1 to the Migration Litigation Reform Act 2005 (Cth), for the purposes of s.477 of the Migration Act 1958 (Cth) (“the Act”), the applicant is taken to have been actually notified of the decision on 1 December 2005.
iii) Contrary to the requirements of s.477(1) of the Act, the application to this Court was not made within 28 days of 1 December 2005, nor was an application for an extension of time made within 84 days of that date as required under s.477(2) of the Act.
b) The Court has no power to extend time for the commencement of the proceedings beyond 23 February 2006 and until 6 March 2007 when the application was filed.
The applicant today acknowledged receipt of that response.
The application in this case was filed more than 12 months after the final date on which a competent application could be made to this Court. The application before the Court is clearly incompetent and must be dismissed. I will so order.
The Minister seeks costs fixed in the sum of $300. The applicant claims impecuniosity, but that is not a reason for the Court to refrain from making an order. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $300.

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

Associate:

Date: 4 April 2007

In the matter of SZKHU v Minister for Immigration & Anor, the Federal Magistrates Court was tasked with reviewing a decision of the Refugee Review Tribunal. The applicant, SZKHU, sought to challenge the Tribunal's decision, which was handed down on 4 March 2003. However, the application to review this decision was not filed until 6 March 2007, significantly beyond the permissible timeframe as stipulated by the Migration Act 1958 (Cth) and the Migration Litigation Reform Act 2005 (Cth). The key issue before the court was whether the application could be accepted despite being filed out of time, and if not, whether the application should be dismissed outright.

The court examined the legal framework governing the timeliness of such applications. Under the Migration Act 1958 and the Migration Litigation Reform Act 2005, an application for judicial review must be filed within 28 days of the applicant being notified of the decision. However, in this case, the applicant was considered to have been notified on 1 December 2005. Given that the application was filed on 6 March 2007, well beyond the 84-day extension permissible under the Act, the court found the application to be incompetent. The court referenced previous case law, notably SZICV v Minister for Immigration, which affirmed that no extension of time can be granted once the statutory period has lapsed.

The Federal Magistrates Court ruled that the application was indeed out of time and, as a result, incompetent. Consequently, the court dismissed the application. The applicant was also ordered to pay the first respondent's costs and disbursements, fixed at $300. This decision underscores the stringent requirements for timely filing of applications for judicial review under the Migration Act and highlights the court's adherence to statutory deadlines.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established