SZKPD v Minister for Immigration
[2007] FMCA 1008
•24 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKPD v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1008 |
| MIGRATION – Extension of time for filing application denied – notification to agent is notification to the applicant – whether in the interests of the administration of justice. |
| Migration Act 1958 (Cth), ss.430(c)(2), 476, 477 |
| Applicant: | SZKPD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1439 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 24 May 2007 |
| Date of last submission: | 24 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 May 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms K. Hooper of DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1439 of 2007
| SZKPD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application for judicial review in this matter was filed on 4 May 2007. In his application, the applicant stated that he received notification of the decision (of the Refugee Review Tribunal) on
6 March 2007.
Section 477 of the Migration Act (“the Act”) provides:
Time limits on applications to the Federal Magistrates Court
(1)An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.
(2)The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
(a)an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
(b)the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3)Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.
(4)The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.
The application was made 60 days after notification of the decision was received by the applicant. It was therefore made outside the 28 day time limit required by s.477(1) of the Act.
The application includes an application for an extension of time to make the application. The application was therefore made within 84 days of actual notification of the decision to the applicant (s.477(2)(a)).
The Court may grant an application to extend time if (and only if – s.477(3)) an application for that order is made within 84 days of the actual notification of the decision (s.477(2)(a)), and the Court is satisfied that it is in the interests of the administration of justice to do so (s.477(2)(b)).
Section 477(2)(a) has been complied with; the question for the Court is whether it is satisfied that it is in the interests of the administration of justice to extend the time.
The Court asked the applicant why he said it is in the interests of the administration of justice to grant an extension. The applicant said that his migration agent was two months late in telling him of the decision.
The applicant said that a fellow detainee filled in the applicant’s application and the date of ‘6 March 2007’ (being the date when the applicant received notification of the decision), and that “he must have copied the date from the letter I received from the RRT” (Transcript 2, line 39). In those circumstances, the Court finds that the applicant was notified of the decision by document dated 6 March 2007.
The first respondent submitted that the delay had not been satisfactorily explained so as to satisfy the Court that it is in the interests of the administration of justice to grant an extension, but added that it was in the hands of the Court as to whether an extension would be granted.
The Court raised the possibility that the letter of notification went to the applicant’s migration agent, then that letter was handed to the friend of the applicant at Villawood, but found that those things had not been established to the satisfaction of the Court.
The Court accepts the evidence of the applicant that the friend “must have copied the date from the letter I received from the RRT”, and that the letter was sent to the migration agent “for a long time before he informed me of the decision” (Transcript 3, line 32): notification to the agent is to be considered as notification to the applicant (s.430C(2)).
The Court is therefore not satisfied that it is in the interests of the administration of justice to extend the time for making the application.
The application is dismissed
The applicant is to pay the first respondent the sum of $500 being its legal costs.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 26 June 2007
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