SZKTS v Minister for Immigration
[2007] FMCA 1308
•30 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKTS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1308 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of the Republic of Sri Lanka. PRACTICE & PROCEDURE – Jurisdiction – competency – application out of time. |
| Migration Act 1958 (Cth), s.477 Federal Magistrates Court Rules 2001, r. 44.12(1)(a) |
| Applicant: | SZKTS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1857 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 30 July 2007 |
| Date of last submission: | 30 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 30 July 2007 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondent: | Ms Blackman |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Citizenship
The Application is dismissed under the provision of Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001.
The Application is incompetent.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1857 of 2007
| SZKTS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The substantive application in this matter is an application for review of a decision of the Refugee Review Tribunal. The decision is dated 24th February 1997 and the Applicant says in his application that the date when notification of the decision was received by him was 5th March 1997. The decision of the Tribunal is as follows: “The Tribunal is not satisfied that the Applicant is a refugee and affirms the decision not to grant a protection visa”.
The Applicant in an application filed on 14th June 2007 seeks orders to the effect that the Tribunal decision is invalid and that the Tribunal should call him for a new hearing. The grounds of his application are:
a)The Tribunal exceeded its jurisdiction,
b)The Tribunal declined its jurisdiction and
c)The Applicant’s application to the Tribunal was not accorded with natural justice.
However, the difficulty that the Applicant faces is a difficulty concerning the jurisdiction of this Court. The First Respondent, the Minister for Immigration & Citizenship, as the Minister is now called, although I note that the First Respondent has been described as the Minister for Immigration & Multicultural & Indigenous Affairs, has filed a Response saying the application ought to be dismissed with costs because it is incompetent, not having been brought within the time allowed pursuant to s.477 of the Migration Act 1958.
The thrust of the submission is that the Applicant states that he was notified of the decision on 5th March 1997 and that sub-s.477(1) of the Migration Act provides that an application to the Federal Magistrates Court for a remedy to be granted in the exercise of the Court’s original jurisdiction under s.476 of the Act 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, and that cl.42 of the transitional provisions of the Migration Litigation Reform Act apply to this application, and that in effect the application was not made within 28 days of the notification, nor within the 84 day period within which the Court may extend that time by a further 56 days.
It is certainly a case where the Applicant has delayed for an extraordinary period of time in commencing these proceedings. In his application he says: “I have not been to Court before, and he told that same thing to the Court this morning. He told the Court he accepted that his application was brought out of time, and that this was his first time in a Court of law and he had no prior experience with Court. He asked the Court to grant him a lawyer who can argue his case for him. I pointed out to the Applicant that he has in fact had over ten years to obtain legal advice. He now wishes to have a chance to present his case.
The Applicant has not provided any reason as to why he has delayed for such an extraordinary period of time, although I did ask him on several occasions. His reply always was:
I do accept that my application is out of time.
The Applicant finds himself in the difficult position that s.477 of the Migration Act does not work in his favour. That is the section which was inserted by means of the Migration Litigation Reform Act 2005 and came into operation on 1st December 2005. The relevant parts of that section I will read on to the record:
(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.
The Migration Litigation Reform Act in clause 42, although it inserted a s.477 which relied on actual as opposed to deemed notification, provided for the purpose of transitional proceedings that there should be a deemed actual notification so that the Applicant is taken to have received actual notification of the decision on 1st December 2005.
In this case the application was filed on 14th June 2007. Clearly it was not made within 28 days of the deemed date of actual notification of the decision which was 1st December 2005, nor was it made within the 84 day period within which the Court may extend that time by a further 56 days pursuant to sub-s.477(2) of the Act. The effect of clause 42 of the transitional provisions of the Migration Litigation Reform Act 2005 insofar as s.477 is concerned is that all applications where the Applicant was notified of the Tribunal decision prior to 1st December 2005 are taken to be applications where the Applicant received actual notification on 1st December 2005 and those applications must have been made to the Court by 23rd February 2006.
This application was not made until 14th June 2007. It is clearly well and truly out of time. As it is out of time the application is what is known to the Courts as “incompetent”. That means that because it is out of time the Court has no jurisdiction to hear it. It follows then that the Court must dismiss the application under the provisions of Rule.44.12(1)(a) because the Court is not satisfied that the Applicant has raised an arguable case for the relief claimed, and the Court must dismiss the application because it is incompetent.
Clearly this is a matter for costs, and indeed the question of costs was foreshadowed by Ms Blackman who appeared for the First Respondent Minister. The amount sought is $2,500.00 and it has been brought to my attention that those costs are calculated on the basis that this application has had an unfortunate history. On the first occasion the matter came to Court, 2nd July 2007, it came about that the Applicant had been sent a copy of the wrong decision by the Refugee Review Tribunal. That decision was and is annexed to his affidavit in support. The solicitor for the First Respondent brought a copy of the correct decision, and this was given to the Applicant on 2nd July 2007. I was not prepared to deal with the matter on that day as the Applicant had not had the opportunity to read through the copy of the correct decision which was given to him, so I adjourned the matter until 5th July 2007 for a Show-Cause hearing.
Unfortunately the application was not reached on that day due to another matter taking considerably longer than the time allocated to it. I adjourned the application until 16th July. Regrettably, through no fault of either of the parties, the Court was not provided with the assistance of a Singhalese interpreter, even though I had specifically made such an order on 16th July 2007. As there was no Singhalese interpreter available, I then adjourned the proceedings until today for hearing.
Fortunately the Court has had the services of a very competent and experienced interpreter in the Singhalese language today. Thus the matter was able to proceed and I have been able to make a decision.
The amount sought by way of costs on behalf of the First Respondent Minister is $2,500.00. In the circumstances however, where some of the delays and adjournments have been brought about not through the doing of the Applicant but in fact through matters beyond the control of both the Applicant and the First Respondent, I am not prepared to fix costs in a sum quite as high as that. It is clearly a matter for costs, but in my view the Applicant should not have to wear the expense in the sum of $2,500.00 and I propose to fix costs in these rather unusual circumstances in the sum of $2,250.00.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V .Lee
Date: 7 August 2007
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