SZKKR v Minister for Immigration
[2007] FMCA 650
•2 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKKR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 650 |
| MIGRATION – Review of Refugee Review Tribunal decision – show cause application filed out of time by reference to s.477 of the Migration Act 1958 (Cth) – consideration of the implications of the High Court decision in Bodruddaza v Minister for Immigration [2007] HCA 14 – the jurisdiction of the Federal Magistrates Court in migration derives from the Migration Act rather than from the Constitution – show cause application dismissed as incompetent. |
| Australian Constitution, s.75 Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.477, 486A Migration Litigation Reform Act 2005 (Cth) |
| Bodruddaza v Minister for Immigration [2007] HCA 14 SZICV v Minister for Immigration [2007] FCAFC 39 WACB v Minister for Immigration [2004] HCA 50 |
| Applicant: | SZKKR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1046 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 2 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 2 May 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms S Kantaria Clayton Utz |
INTERLOCUTORY ORDERS
The Court directs that the name of the applicant not appear on the transcript of proceedings.
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 $1,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1046 of 2007
| SZKKR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was signed on 30 June 2004 and was handed down on 27 July 2004. The show cause application was filed in this Court on 29 March 2007. In that application the applicant correctly identified the date of the Tribunal decision as 27 July 2004. However, his assertion of the date when he was notified of that decision on the face of his application was confusing. A typewritten date of 14 March 2007 had been entered on the application. However, a handwritten date of 27 July 2007 had been placed over the typewritten date.
This matter came before me for the first time on 30 April 2007. On that day I queried with the applicant when he asserts he was actually notified of the Tribunal decision. He agreed that the date of 27 July 2007 could not be correct as that is a future date. He thought that it might have been 27 July 2004 which was the date the decision was handed down. However, he was uncertain and it appeared from what he told me from the bar table that he did not himself attend the handing down of the decision. He told me that he collected the decision later from a friend who was apparently his authorised recipient for the purposes of his review application to the Tribunal.
In the light of what occurred on 30 April 2007 I invited the Minister to consider amending the Minister’s response to the application. I adjourned the first court date until today. The Minister’s amended response was filed in court today by leave. In that response the Minister asserts that the Court does not have jurisdiction to hear the applicant’s application because it was filed outside the prescribed time period under s.477 of the Migration Act 1958 (Cth) (“the Migration Act”). The terms of the response are important and I incorporate them in full in this judgment:
1.The Court does not have jurisdiction to hear the Applicant’s application.
2.The Applicant was actually notified of the decision of the Second Respondent by August 2004.
Particulars
(a) Annexed to the Applicant’s Affidavit supporting his judicial review application, is a letter from the Second Respondent to the Applicant dated 27 July 2004 informing him that he is not entitled to a protection visa.
(b) On page 2 of his judicial review application, the Applicant states that he received notification of the Second Respondent’s decision on 27 July 2007. The Applicant admitted at the directions hearing before Driver FM on 30 April 2007 that the year he received notification of the Second Respondent’s decision as recorded on his judicial review application is incorrect and should read “2004” and not “2007”.
3.By operation of the transition provisions to the Migration Litigation Reform Act 2005 (Cth), the Applicant is taken to have been actually notified of the Second Respondent’s decision on 1 December 2005.
4.Section 477 of the Migration Act 1958 (Cth) (“Act”):
(a) requires an application to the Federal Magistrates Court to “be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision”; and
(b) provides that the “Federal Magistrates Court may, by order, extend that 28 days period by up to 56 days”.
5.Pursuant to section 477(2)(a) of the Act, applications for an extension of time must be made to the Court “within 84 days of the actual (as opposed to deemed) notification of the decision”.
6.More than 84 days have passed since 1 December 2005.
7.The Applicant did not make his application to the Court within 28 days of 1 December 2005, nor did he apply for an extension of time within which to make his application within 84 days of 1 December 2005.
8.Accordingly, the application has not been made in accordance with section 477(1) of the Act.
The Minister attempted service of the amended response by courier yesterday. Exhibit R1 is evidence of that attempted service. A copy of the amended response was left at the applicant’s residential premises notified by him to the Minister’s solicitor earlier this week and confirmed in a notice of change of address for service filed in court today. It appears that the applicant was not at home when the courier called and he denies finding the copy of the amended response that was left for him. However, he was given a copy of the amended response before court this morning and the interpreter read the contents to him in Mandarin. I am satisfied that the applicant has received sufficient notice of the issue to be resolved. That is especially so in this case as I explained the issue in simple terms to the applicant in court on 30 April 2007.
I invited the applicant to give evidence about the notification to him of the Tribunal decision. He accepted that invitation. The applicant’s evidence, which is undisputed, is that some time after the Tribunal decision, a friend, who was apparently attending to his review application, telephoned him to say that he had received a letter. It appears that the friend was the applicant’s authorised recipient for the purposes of the review and had received from the Tribunal its notification letter and copy of the Tribunal decision. The applicant said his friend did not explain what the letter was about but asked him to call to collect it. The applicant said that some time later he went to his friend’s place and collected from him the letter and copy of the decision. He said that he asked his friend to explain the decision to him at that time but his friend said that he was too busy. The applicant could not recall precisely when this occurred but said that it was some time in 2004.
The applicant said that he was not curious as to the contents of the Tribunal decision and because he could not read English he put it aside. He said that it was not until March this year that he developed a renewed interest in the Tribunal decision after a conversation with another friend. He came to understand that there was an issue concerning his failure to attend a hearing before the Tribunal and decided to seek judicial review in this Court related to that issue. The applicant’s current friend assisted him in the preparation of his show cause application.
Based upon that evidence, which I accept, it is tolerably clear that the applicant received actual notification of the Tribunal decision in 2004. He apparently did not understand the contents of the Tribunal decision but, as was found in the High Court decision in WACB v Minister for Immigration [2004] HCA 50 at [43], understanding of a tribunal’s decision and reasons is not the critical issue for the purposes of the effluxion of time under a time limitation provision. The critical issue is physical delivery of the Tribunal decision and the reasons for it. I find that that occurred in 2004.
It follows that pursuant to item 42 of Schedule 1 to the Migration Litigation Reform Act 2005 (Cth) the applicant is taken to have been actually notified of the Tribunal decision on 1 December 2005. He then had, pursuant to s.477 of the Migration Act, 28 days to file his show cause application. He had a further 56 days to seek an extension of time. The total period of 84 days within which the applicant could apply or seek and extension of time to apply expired on 24 February 2006. The application before the Court was not filed until 29 March 2007, more than a year later.
It follows, and I find that, pursuant to s.477 of the Migration Act the application before the Court is incompetent and must be dismissed.
In making that finding, I have taken into account the decision of the High Court in Bodruddaza v Minister for Immigration [2007] HCA 14. In that case the High Court found invalid s.486A(1) of the Migration Act which is essentially in the same terms as s.477(1) of the Migration Act. Section 486A applies to proceedings in the High Court, whereas s.477 applies to proceedings in this Court. No issue was raised in Bodruddaza about the validity of the statutory time limits applicable in this Court and the Federal Court[1]. As I understand the High Court decision. it was based upon a finding that s.486A in its application to proceedings in the High Court was an unreasonable interference with the High Court’s jurisdiction under s.75(v) of the Constitution. The position of this Court is quite different to that of the High Court. The High Court is created by the Constitution and derives its jurisdiction to deal with constitutional writs against officers of the Commonwealth from the Constitution. This Court, like the Federal Court, is a creature of statute. The jurisdiction of this Court is conferred by Parliament. What Parliament gives, Parliament may take away. What Parliament may take away, Parliament may also circumscribe. Parliament has circumscribed the jurisdiction of this Court in relation to migration proceedings by application of the time limit in s.477 of the Migration Act. The Federal Court has found on several occasions that the section imposes a jurisdictional limitation[2]. I am bound by those decisions of the Federal Court. I proceed on the basis that s.477 of the Migration Act in its application to proceedings in this Court is a valid enactment of the Commonwealth.
[1] See [24] and footnote 5 in that case
[2] See for example SZICV v Minister for Immigration [2007] FCAFC 39 at [43]-[67]
I will therefore order that the application before the Court be dismissed as incompetent.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $1,200 on a party and party basis. That is $200 more than scale costs pursuant to item 1(a) of Part 2 of Schedule 1 to the Federal Magistrates Court Rules 2001 (Cth). However, issues of fundamental importance were raised in this matter and although this is an adjourned first court date the hearing has gone substantially beyond what would ordinarily be a short directions hearing at a first court date. The Minister has also prepared a detailed amended response. The applicant indicated his understanding of the costs position but did not make any submissions.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $1,200.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 9 May 2007
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