SZKTT v Minister for Immigration
[2007] FMCA 1187
•10 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKTT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1187 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Migration Act 1958 (Cth), ss.477; 477(2); 477(3) |
| Applicant: | SZKTT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1866 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 10 July 2007 |
| Date of last submission: | 10 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2007 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Solicitors for the Respondent: | Mr R. White, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1866 of 2007
| SZKTT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant filed an initiating application in this Court on 12 June 2007, in which he sought judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 10 January 2007. At the first return date on 5 July 2007, before me, the matter was set down for hearing today on the issue of whether or not this Court has jurisdiction to entertain the applicant's application for judicial review.
The applicant is unrepresented this afternoon before this Court, although has the assistance of an interpreter. The applicant has handed to the Court a document, that has been received by this Court as submissions and is in the following terms:
“Appeal reasons:
1. The RRT member didn’t consider the influences to me, because my parents joined in the underground Church and persecuted by government:
1. I was distinguished in school.
2. I couldn’t find any job in local.
2. Although my young brother could go to school, he was also distinguished by his teachers and classmates, so he could go to school doesn’t mean that my family doesn’t be persecuted.
3. In the RRT hearing I said that “I sometimes went to Church”, actually I means I went to Church regularly, but the RRT member misunderstood my meaning and judged that I am not a Christian. I think that is not reasonable.
4. I applied Refugee Protection very late, because I didn’t know the procedures of Refugee Protection Application; I didn’t know how to star to appeal and I was worried about that my family was entangled by my application.”
The first respondent reads the affidavit of Megan Louise Palmer, sworn 9 July 2007, which annexes a detainee document register, which she states, in her affidavit:
“…is a catalogue which records the date and time detainees at Villawood Immigration Detention Centre receive documents.”
That document, marked annexure A, to the affidavit of Ms Palmer, discloses that on 11 January 2007, at 2.32pm, the Tribunal faxed its refusal to grant the applicant a protection visa to the Villawood Detention Centre.
Annexure B to the affidavit of Ms Palmer is a letter dated 25 January 2007, from the applicant to the then Minister for Immigration and Multicultural and Indigenous Affairs, requesting that the Minister exercise her discretion to grant the applicant a protection visa. That letter is in the following terms:
“Dear Minister:
Re: [Applicant]
DIMA Ref: CLF2006/113035
RRT Ref: 060943800
I submit that there are string (sic) and compelling reasons why I cannot return to China. The RRT found that I was not a refugee on (date 10 January 2007 of tribunal’s decision. (emphasis added) Even though the Tribunal found that I did not meet the legal requirements for refugee status. I will face a threat to my personal security or human right abuses or abuse of my religious belief, if I return to my country. I ask that you take all of the above claims and submissions into account and exercise your Discretion compassionately.
I have further material I wish to submit to support my request which I will submit as soon as possible. I request that you not make a decision in my case until these documents are send you.
Your sincerely
[Applicant]”
Attached to that letter is a further letter from the applicant, addressed to “Dear Minister for Immigration” dated 25 January 2006.
Annexure B also attached a further letter, dated 20 January 2007, purportedly being a letter from the applicant's parents to the applicant.
Under s.477 of the Migration Act 1958 (Cth) (“the Act”), an application must be made to this Court for judicial review of a migration decision within 28 days of the actual notification of the decision. Pursuant to s.477(2) of the Act, this Court may extend that 28 day period up to 56 days, if an application for an extension of time is made within 84 days of the actual notification of the decision and this Court is satisfied that it is in the interests of the administration of justice to do so.
Section 477(3) of the Act provides that:
“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.”
In accordance with Ms Palmer’s evidence that Annexure A to her affidavit is a catalogue that records that the Tribunal’s decision was received by the applicant, I am satisfied that a copy of the Tribunal’s decision was received by the applicant at Villawood on 11 January 2007. The applicant has not asserted otherwise.
In those circumstances, the application made by the applicant for an extension of time pursuant to s.477 of the Act has not been made within 84 days of that date.
Otherwise, the applicant’s s.417 letter, dated 25 January 2007, sent to the Minister essentially stating that he was not a refugee despite the decision of the Tribunal, would be sufficient evidence to satisfy me that the applicant had actual notification of the decision by that date. However, the application for an extension of time was not made within 84 days from 25 January 2007. The applicant's application for extension of time was made at the same time his initiating application in this Court was filed; that being 12 June 2007.
In the circumstances, pursuant to s.477(3) of the Act, this Court cannot make an order extending the 28 day period, to allow the applicant to make an application for judicial review of the Tribunal decision dated 10 January 2007.
Accordingly, the proceeding before this Court, commenced by way of application filed on 12 June 2007, is dismissed.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 13 July 2007
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