SZKRZ v Minister for Immigration

[2007] FMCA 961

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKRZ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 961

MIGRATION – Review of Refugee Review Tribunal decision – show cause application out of time and incompetent.

Migration Act 1958 (Cth), ss.417, 477
Migration Litigation Reform Act 2005 (Cth)

SZCIV v Minister for Immigration [2007] FCAFC 39

Applicant: SZKRZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1684 of 2007

Judgment of: Driver FM

Hearing date: 20 June 2007

Delivered at: Sydney

Delivered on: 20 June 2007

REPRESENTATION

Solicitors for the Applicant: Ms A Davidian
Refugee Advice and Casework Service

Solicitors for the Respondents: Ms A Nesbitt
Sparke Helmore

INTERLOCUTORY ORDERS

1. The application is dismissed as incompetent.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1684 of 2007

SZKRZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application under the Migration Act 1958 (Cth) (“the Migration Act”) seeking review of a decision of the Refugee Review Tribunal. The decision was signed on 16 August 2000 and was handed down on 6 September 2000. The application notes the date of the decision as 16 August 2000, whereas the date of the decision is more properly the date of handing down on 6 September 2000. The application asserts actual notification of the decision on 13 September 2000. I am told by Ms Davidian, who appeared this morning on behalf of the applicant, that the date of 13 September 2000 is an estimate rather than a precise date of notification, but that there is no real doubt that the applicant was notified of the Tribunal decision at some stage prior to 1 December 2005.

2. I have before me, in addition, an affidavit by the applicant made on 25 May 2007 in which he explains the delay in applying for review in this Court. I also have before me the affidavit of Nicola Johnson made on 19 June 2007 and filed in court by leave today in which Ms Johnson deposes as to the applicant’s involvement in the Muin and Lie class action and a request for Ministerial intervention pursuant to s.417 of the Migration Act, both steps occurring after the Tribunal decision.

3. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The matter came before me this morning on the first court date on the application. Ms Davidian I think assumed that there would have been an opportunity to engage counsel to argue preliminary issues. The Minister’s response filed on 8 June 2007 makes the point that the Court has no jurisdiction to review Tribunal decisions where the time limit for seeking review and/or seeking an extension of time under s.477 of the Migration Act has expired.

4. The issue in relation to s.477 has, in my view, now been authoritatively settled[1] and I saw no point in delaying my decision on that preliminary issue. It is clear that s.477 places a jurisdictional limitation on this Court. If an applicant does not seek review in this Court within 84 days of actual notification of that Tribunal decision, the Court has no jurisdiction to entertain the application.

   [1] SZCIV v Minister for Immigration [2007] FCAFC 39 in particular at [33], [46] and [67]

5. In the case of actual notification occurring before 1 December 2005, the date of commencement of the Migration Litigation Reform Act 2005 (Cth), item 42 of schedule 1 to that Act specifies that the applicant is taken to have been notified on 1 December 2005. That means that the time for applying for review and/or seeking an extension of time expired on 24 February 2006. The applicant has not applied by that date. The application was filed on 28 May 2007, well in excess of 12 months after the last date on which a competent application could have been filed.

6. The applicant’s affidavit might have had some bearing on the case if I had jurisdiction to consider an extension of time.  However, I do not.  Ms Johnson’s affidavit, in combination with the application and Ms Davidian’s comments from the bar table, leave no doubt that the applicant was, in fact, notified of the Tribunal decision before 1 December 2005. 

7. I find in the circumstances that the application before the Court is incompetent and accordingly must be dismissed.  I will so order. 

8. The application having been dismissed, costs should follow the event.  Scale costs in this instance would be $1,000.  The Minister seeks half that amount and I have no difficulty in accepting that costs of at least that amount have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis.  Ms Davidian did not wish to be heard on costs.  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 $500. 

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

Associate: 

Date:  22 June 2007