SZKOY v Minister for Immigration
[2007] FMCA 1488
•22 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKOY v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1488 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of the People's Republic of China – show cause hearing – no jurisdiction – Migration Act 1958 (Cth) s.412 is mandatory in its time limit. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.411(1)(c), 412(1)(b), 412(1)(d), 477, 494B, 494B(4), 494C, 494C(4)(a) Federal Magistrate Court Rules 2001 r.44.12 Migration Regulations 1994 reg.4.312B |
| SZIUK v Minister for Immigration & Citizenship [2007] FCA 226 followed SZKKC v Minister for Immigration & Citizenship [2007] FCAFC 105 referred to. |
| Applicant: | SZKOY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1417 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 August 2007 |
| Date of Last Submission: | 22 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 August 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Nil |
| Solicitors for the Respondents: | Ms Rayment |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed under Rule 44.12(1).
The applicant is to pay the first respondent’s costs fixed in the sum of $2,500.00.
I allow three (3) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1417 of 2007
| SZKOY |
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 the subject of a show cause hearing. The substantive application is an application for review of a decision of the Refugee Review Tribunal made on
23rd January 2007. The Tribunal found that it did not have jurisdiction in this matter. The applicant filed his application on 4th May 2007 and seeks an order that the time for making the application be extended under s.477 of the Migration Act 1958 (Cth) (“the Act”).
The first respondent Minister does not press the ground in the response saying that the Court has no jurisdiction to review the Tribunal decision because the application was not filed within 28 days of actual notification. This has been done in the light of the decision of the Full Court of the Federal Court in SZKKC v Minister for Immigration & Citizenship [2007] FCAFC 105. However, by means of a response filed on 18th May 2007, the Minister claims that the application for review does not raise an arguable case for the relief claimed pursuant to what is described as part 44.12 of the Federal Magistrate Court Rules but is in fact r.44.12 and seeks that the application should be dismissed.
The Refugee Review Tribunal found that it did not have jurisdiction. The reasons for this can be found at page 83 of the Court Book in the Tribunal's findings and reasons. The Tribunal found that the delegate's letter to the applicant notifying the applicant of the decision of the applicant was dated 19th October 2006. It was sent by pre-paid post that same day. The Tribunal found that the decision notification letter was therefore dispatched within three working days of the date of the letter to the applicant's correct address which therefore complied with the provisions of s.494B(4) of the Act. Accordingly, the Tribunal found that the applicant was taken to have received the notice on
30th October 2006 which is seven working days after the date of the notice. That of course is provided for by s.494C(4)(a) of the Migration Act.
The application for review of the delegate's decision was received by the Tribunal on 28th November 2006. A copy of the front page of the application for review showing the Tribunal's stamp with the date of receipt on it can be found at page 49 of the Court Book. The Tribunal found that the applicant was seeking a review of the delegate's decision under s.411(1)(c) and that the prescribed period set out under s. 412(1)(d) in reg 4.312B which was 28 days, meant that the last day that the application for review could not be lodged was 27th November 2006.
However, the application for review was not received by the Tribunal until 28th November 2006 which was after the prescribed period had expired. The Tribunal wrote to the applicant seeking his comments in respect of that matter and the applicant replied on 19th December 2006 in a letter that seemed not to answer the matters raised. The Tribunal wrote again on 3rd January 2007 in a letter headed:
Invitation to Comment and Provide Further Information on Eligibility Issues.
The letter told the applicant that the application was received on
28th November 2006 which appeared to have reached the Tribunal too late and the Tribunal has no power to consider late applications.
The applicant wrote to the Tribunal on 5th January 2007 in a handwritten letter which can be found at pages 65 to 67 of the Court Book. In that letter he said amongst other things:
I offer apologies for my serious error of not lodging my application in time.[1]
[1] Court Book at 65
The applicant said that he had no money to engage a migration agent to prepare his documents and that a friend had helped him who was an old man and could not prepare his application within 28 calendar days. The Tribunal considered the applicant's submission but did not accept that it provided any basis for accepting the review application lodged on 28th November 2006. The Tribunal found that as the application for review was received outside the mandatory time limit it is not a valid application and the Tribunal had no jurisdiction to review the delegate's decision.
The applicant told the Court today that after he arrived in Australia he did not know about legal procedures in Australia. This time he told the Court his application was prepared by his migration agent. Every step of the preparation was made by the migration agent. I note that the migration agent's name and address did not appear on the application to the Tribunal. I have had referred to me, the decision of Tracey J in SZIUK v Minister for Immigration & Citizenship[2].
In that decision, which was a decision on an appeal from the Federal Magistrates Court, his Honour said:
Although the appellant claims that his late application occurred because of the negligent conduct of his migration agent, it is notable that he did not notify the Department that he had an agent acting for him. In any event, as the Tribunal and the learned magistrate have held, the application was lodged a week late. The Tribunal did not have power to enlarge time or jurisdiction to entertain the application. (See s.412(1)(b) of the Act and reg.4.312 of the Migration Regulations (1994) Commonwealth).[3]
[2] [2007] FCA 226
[3] [2007] FCA 226 at [12]
Section 412(1)(b) provides that an application for review of an RRT reviewable decision must be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision. It is well established that the 28 day period in s.412(1)(b) is mandatory and the Tribunal has no power to extend the time. I am satisfied that the Tribunal correctly applied the provisions of ss. 494B and 494C and no error appears. The Tribunal did not fall into jurisdictional error in deciding that it did not have jurisdiction to entertain the application.
As the time limit in s.412(1)(b) is mandatory, the Tribunal had no option but to make the finding that it did. Accordingly, I am not satisfied that the substantive application has raised an arguable case for the relief that is claimed. I propose to dismiss the application.
There is an application for costs on behalf of the first respondent Minister. This is an appropriate matter for a costs order. The applicant has been unsuccessful and the amount sought, $2,500.00, is the appropriate amount under the scale. The applicant told the Court that he is not in employment and has to rely on others for his support.
That may well be so but that is not a reason not to make an order for costs; it is a matter to be taken into account as far as time to pay is concerned and I propose to allow three months to pay.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 30 August 2007
2
4