SZKND v Minister for Immigration

[2007] FMCA 951

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKND v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 951

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal.

Migration Act 1958, s.477
Federal Magistrates Court Rules 2001, r.44.12

Applicant: SZKND

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1225 of 2007

Judgment of: Cameron FM

Hearing date: 19 June 2007

Date of Last Submission: 19 June 2007

Delivered at: Sydney

Delivered on: 19 June 2007

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Pursuant to r.44.12 of the Rules of Court the application be dismissed.

2. The applicant pay the first respondent's costs fixed in an amount of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1225 of 2007

SZKND

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed on 16 April 2007 and yet dated 15 August 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 10 February 2006 and which affirmed an earlier decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“Minister”) dated 27 October 2005 refusing the applicant’s application for a protection visa.

2. The application is listed today for a show cause hearing as the Minister has identified that the proceedings appear to have been filed out of time. Section 477 of the Migration Act1958 (Cth) (“Act”) provides that an application to this Court for judicial review of a decision of the Tribunal must be made within 28 days of the notification of that decision to the applicant unless within 84 days of that notification the applicant seeks an order for an extension of time by up to 56 days.

3. Section 477(3) prevents this Court from making an order allowing or which has the effect of allowing an applicant to make an application for an extension of time outside the 84 day period. In her application to this Court the applicant states that she was notified of the decision on 26 August 2006. In her evidence to the Court today the applicant says that she received the decision in July 2006, perhaps on 14 July 2006.

4. It appears that the delay in the applicant receiving the notification of the Tribunal's decision, which appears to have been handed down on 2 March 2006, is because she was not advised of the outcome of her application to the Tribunal by her migration agent.  In her submissions from the Bar table today the applicant stated that she had pressed her migration agent for the results of the Tribunal hearing and it took some time to obtain them.

5. Even though the applicant has explained why she was not aware of the decision until some months after it was signed and handed down, she has not sought to explain why it took many months from that notification for her to file her application in this Court. But in any event the Act gives the Court no discretion in these proceedings as no application to extend time was made to this Court until the applicant's affidavit of 16 April 2007 where such an application was made. I place no weight on the fact that in her application filed in this Court the applicant ticked the box "No" when asked whether she sought an extension of time to bring an application.

6. But an extension of time needed to have been sought long before it actually was. If the applicant received notification of the Tribunal decision on 14 July she ought to have sought an extension of time no later than 6 October 2006. If she was notified on 26 August 2006 the 84 day period expired on 18 November 2006 which, because it was a Saturday, would have meant that the applicant had until 20 November 2006 within which to seek an extension of time.

7. However, the application for an extension of time was not filed by either of those dates with the result that it has been filed out of time and the Court has no power to extend the time for the commencement of proceedings. 

Conclusion

1. As a result this Court has no jurisdiction to entertain the application and it must be dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Cameron FM.

Associate:

Date:  23 July 2007