SZKNX v Minister for Immigration & Anor
[2007] FMCA 878
•28 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKNX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 878 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister not to grant the applicant a protection visa. PRACTICE & PROCEDURE – Jurisdiction – no jurisdiction – out of time. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X,417,477 Migration Litigation Reform Act 2005 (Cth), item 42 of sch. 1 |
| Applicant: | SZKNX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1303 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 May 2007 |
| Date of Last Submission: | 28 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 28 May 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is incompetent.
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $2,200.00 and I will allow twelve (12) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1303 of 2007
| SZKNX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The application before the Court today is an application to dismiss the applicant's application for review of a decision of the Refugee Review Tribunal (“the Tribunal”). The applicant filed his substantive application on 23rd April 2007. At that stage he was an inmate of the Immigration Detention Centre at Villawood. He has since been released into the community.
He asks the Court to review a decision made by the Refugee Review Tribunal which was signed on 26th February 1999 and handed down shortly afterwards. The material before me shows that the Tribunal posted a copy of that decision by registered post to the applicant on
26th February 1999. The applicant says in his substantive application that the date when he was notified of the decision is unknown.
The application before me today is brought by the first respondent, the Minister for Immigration and Citizenship. The respondent submits that the applicant's application for review is out of time in that it was filed more than 28 days after the applicant was notified of the decision.
In fact the Minister submits that the application was filed more than a total of 84 days after 1st December 2005 which is the date when the applicant is deemed to have been notified.
Because of this under s.477 of the Migration Act 1958 (Cth) the Court has no jurisdiction to extend the time and has therefore no jurisdiction to hear the application for review. The Minister asks the Court to find that the application is incompetent and dismissed the application on that basis. As well as the application's original application the applicant relies on a written submission which he handed up in Court today. He also gave oral evidence on oath and was cross-examined.
For the Minister reliance is placed on two affidavits of Elizabeth Warner-Knight, solicitor, affirmed on 23rd and 24th May 2007 respectively. There is also a set of written submissions dated 24th May 2007. It is clear that the applicant who is a citizen of Indonesia arrived in Australia on 27th June 1996. He applied for a protection visa on
10th May 1997. A delegate of the Minister refused the application for a visa on 28th February 1998.
The applicant then lodged an application for review of that decision by the Refugee Review Tribunal on 26th March 1998. That Tribunal made its decision on 26th February 1999 and it affirmed the decision of the delegate not to grant the application a protection visa. The Tribunal sent a copy of its decision to the applicant on 26th February 1999.
That letter was sent by registered post to the applicant's then home address which was his address for service of documents. The letter containing the copy of the decision was not returned unclaimed to the Refugee Review Tribunal
It is common ground that the applicant instructed a firm of solicitors, Adrian Joel and Company to act for him. On 17th March 1999 the solicitors wrote to the Ministerial liaison unit of the office of the Minister for Immigration and Multicultural Affairs. That letter sought the exercise of discretion by the Minister under s.417 of the Migration Act 1958 (Cth) to substitute for the decision of the Refugee Review Tribunal a decision more favourable to the applicant.
The Ministerial intervention responded and on 2nd September 1999 wrote to the application advising that the Minister had decided not to consider exercising his jurisdiction under s.417 of the Migration Act 1958 (Cth). The applicant made a further application to the Minister on 25th January 2006. On 9th October 2006. The Ministerial Intervention Unit wrote to the applicant advising that the letter did not meet the guidelines for a repeated application and no further application would be taken upon it.
On 8th March this year the applicant was taken into Immigration Detention at Villawood where he remained until 21st May. During that time on 23rd April 2007 the applicant filed an application in this Court seeking review of the Tribunal's decision. The applicant in his written submission had this to say on page 1:
I also recall that I approach a firm called Adrian Joel some time between the two interviews but I do not have a copy of a letter of support or change of address made by Adrian Joel to the Tribunal.
When he refers to interviews he refers to hearings before the Tribunal on 24th November 1998 and 28th January 1999. The applicant in his submission then described how he consulted with solicitors and met first Mr Joel and then another solicitor, Mr Mark Cruice. He goes on to say in his submission:
I recall that a copy of the RRT decision dated 26th February 1999 was obtained by a Freedom of Information done by my solicitor or was sent to me and I gave it to my solicitor.
The applicant in the balance of his submission deals with matters relating to his substantive application. The applicant gave oral evidence and told the Court that he did not recall receiving a copy of the Tribunal decision in 1999. He did recall going to see Adrian Joel and Co in March 1999 and in answer to a question from the Bench said that he recalled taking some documents with him to the solicitors. When asked if he remembered what they were he said:
Yes, they were about rejection by the RRT. I gave them to the solicitor, I didn't keep them.
He went on to tell the Court that after he gave those things over to the solicitors he believed that the people whom he saw would do things to help him. In cross-examination he recalled the letter sent to the Minister on 17th March 1999 on his behalf but denied having received a copy of the acknowledgement from the Ministerial Interventions Unit dated 2nd September 1999. The crucial event at which the Court must look is the notification by the Refugee Review Tribunal to the applicant.
Under s.477 of the Migration Act 1958 (Cth) time starts to run from the date of notification. If an application for review is not filed within 28 days from the date of notification then the applicant must seek an extension of time. The Court only has the power under s.477(2)(a) of the Migration Act 1958 (Cth) to extend the time by a further 56 days so that the application must be made within 84 days of the date of notification.
Where an applicant was notified prior to 1st December 2005 the applicant is deemed by item 42 of Sch.1 of the Migration Litigation Reform Act 2005 (Cth) to have been actually notified of the decision on 1st December 2005. In such a situation the applicant must file an application within 28 days or else if the application is filed outside that time it must seek an extension of time, but if the application is filed more than 84 days from 1st December 2005 the Court has no jurisdiction.
In this case there is evidence that the Tribunal signed its decision on 26th February 1999 and posted a copy of that decision to the applicant at his home address at the time that same day be registered post. There is evidence that that document was not returned unclaimed. The letter written by Adrian Joel and Co to the Ministerial Liaison Unit on
17th March 1999 seeks the intervention by the Minister under the provisions of s.417 of the Migration Act 1958 (Cth).
As the letter itself points out s.417 of the Migration Act 1958(Cth) affords the Minister with discretion to substitute for a decision of the Refugee Review Tribunal a decision more favourable to the applicant if it is in the public interest to do so. The letter goes on to say:
The Tribunal conducted two hearings in this matter and on
26th February 1999 affirmed the primary decision to refuse the applicant -
Whose name I will not quote in order to comply with s.91X of the Migration Act 1958 (Cth):
a protection visa.
The applicant has given evidence today that he did indeed instruct those solicitors to act for him and he did take with him and hand over to the solicitor’s documents relating to his rejection by the Refugee Review Tribunal. I am satisfied that that evidence allows me to find that the applicant was actually notified of the decision of the Refugee Review Tribunal at some time after 26th February and prior to
17th March 1999. It therefore must follow that as the applicant was notified during that period of time he was notified prior to
1st December 2005. As such time for filing an application for review runs from 1st December 2005.
In order for the application to have been filed in time the applicant would have to have filed his application by, at the very latest,
23rd February 2006. He did not file his application until 23rd April 2007. That is well outside the time provided by s.477 of the Migration Act 1958 (Cth). It follows that the Court has no jurisdiction to hear the application for review of the Tribunal decision. I would comment in passing that the applicant has been physically present in Australia since 27th June 1996. He has therefore lived in this country for one month less than 11 years.
At the conclusion of any legal proceedings which the applicant might be advised to take he may well have a humanitarian claim for consideration by the Minister. That is not a matter for the Court to decide as the Minister's discretion is absolute and the Court has no power to affect the way in which the Minister decides to exercise or not exercise any discretion the Minister has. The situation as far as the Court is concerned is that the Court has no option but to find that the application is incompetent, as that it is an application without jurisdiction. It follows that the application must be dismissed and I make the following orders.
There is an application for costs on behalf of the first respondent, the Minister. The applicant has been unsuccessful in his claim and the Minister has been successful. That is the basis upon which an order for costs is sought. The amount sought, which is $2,200.00 I within the range envisaged by the Federal Magistrates Court Rules 2001.
The applicant says he has no money at all and is not currently in employment. He has a wife and a child to support and has had to raise a bond of $12,000.00 in order to obtain release from detention on a bridging visa. Fortunately for him he has that visa and has been able to return to live in the community since 21st May 2007.
Whilst those circumstances are not of themselves reasons why the Court should not make an order for costs in favour of a successful party they are, to my mind, strong reasons that the Court should take into account in allowing time to pay. The circumstances are slightly different from the average case and whilst I consider that I should make an order for the applicant to pay the first respondent's costs in the sum of $2,200.00 I propose to take the somewhat unusual step of allowing 12 months to pay.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 1 June 2007
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