SZLIL v Minister for Immigration
[2008] FMCA 803
•27 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLIL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 803 |
| MIGRATION – VISA – Protection (Class XA) visa – application for review of decision of the Refugee Review Tribunal affirming delegate’s decision to refuse protection visas to the applicants – jurisdiction – whether Court has jurisdiction – application out of time – extension of time – failure of applicants to apply for extension of time – notification – where applicant attended Tribunal personally to receive copy of the Tribunal decision – application dismissed as incompetent. |
| Migration Act 1958 (Cth), ss.474,476, 477 |
| Minister for Immigration & Citizenship v SZKKC (2007) 159 FCR 565; [2007] FCAFC 105 followed. SZICV v Minister for Immigration &Citizenship [2007] FCAFC 39 followed. SZICV v Ministerfor Immigration and Anor [2006] FMCA 1063; 202 FLR 200 followed. |
| First Applicant: | SZLIL |
| Second Applicant: | SZLIM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2876 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 27 May 2008 |
| Date of Last Submission: | 27 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 May 2008 |
REPRESENTATION
| Solicitors for the Applicant: | In Person |
| Counsel for the Respondents: | Ms Younan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application is dismissed as incompetent.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2876 of 2007
| SZLIL |
First Applicant
| SZLIM |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Application
The applicants are a husband and wife from Indonesia. They seek in their application an order for review of a decision of the Refugee Review Tribunal refusing to grant them protection visas. The Tribunal signed its decision on 25 July 2007 and handed that decision down on 16 August 2007.
The First Respondent, the Minister for Immigration & Citizenship, has filed an amended response arguing that the Court has no jurisdiction to hear the applicant's application because the application is out of time. The response also goes on to submit that the Minister does not admit that there is any jurisdictional error in the decision of the Refugee Review Tribunal.
The first thing that the Court must consider is whether or not the Court has jurisdiction to hear the application. The Minister submits that the Court does not have jurisdiction under s.476 of the Migration Act because the application is out of time. Further, the Minister submits that the applicants did not apply for an extension of time within the additional period of time allowed by s.477 of the Migration Act.
The facts for consideration are that the Tribunal handed down its decision on 16 August 2007. The first applicant, who is present today, attended at the office of the Refugee Review Tribunal when the decision was handed down. At page 92 of the Court book there can be found a copy of the Tribunal's handing down information form, which shows that the first applicant attended and signed the form as a personal attendance.
The applicants filed their application for review, along with an affidavit in support annexing a copy of the Tribunal decision, on 17 September 2007. The third page of the application contains a section headed: "Application for Extension of Time". It goes on to deal with an extension of time saying the following:
Does the applicant apply for an order that the time for making the application be extended under s.477 of the Migration Act 1958.
There has been typed on to the form, under that question, the word, "No". The form goes on to add this note:
An extension of time is required if the application is not made within 28 days of the actual (as opposed to deemed) notification of decision - see s.477 of the Migration Act 1958. If it is required, the applicant must file an affidavit explaining the delay and the reasons why an extension of time should be granted.
The applicants did file an affidavit sworn or affirmed by the first applicant on 12 September 2007. The applicants' affidavit says this:
1. I do not want to go back to Indonesia.
2. The decision from the Refugee Review Tribunal be attached.
The affidavit does not refer to an extension of time.
The first applicant has attended Court today and indicated she is attending and speaking on her own behalf and on behalf of her husband, the second applicant. He has not attended Court. She has identified her signature on the copy of the handing down information form and she has told the Court that she overlooked the part about an extension of time. She suggested that she had not read the document properly and told the Court that she only found out about the need for an extension of time today, on the date of the hearing. She expressed the opinion that that might be because of her lack of English. She went on to explain that she was not thinking about how late the application was but was more concerned about having the Tribunal decision reviewed.
The Minister relies not only on the Court book, in particular the handing down information form on page 92, but also on an affidavit sworn 21 May 2008 by Jonathan Christian Willoughby-Thomas who is the District Registrar of the Refugee Review Tribunal. In his affidavit Mr Willoughby-Thomas speaks of his familiarity with the practices and procedures adopted by the Refugee Review Tribunal, in particular the usual practice when overseeing the handing down of a decision where an applicant or the applicant's representative attends. He then sets out in paragraph four what happens:
(a) The handing down of Tribunal decisions occurs in closed room.
(b) The person attending the handing down is asked for some form of photo identification.
(c) A Tribunal officer records the persons who are present at the handing down by writing their names on the handing down information form in the section entitled, "Persons in Attendance."
(d) The Tribunal's decision (but not the reasons for the decision) is read aloud.
(e) The applicant or their representative is handed a statement of decision and the reasons for the decision (documents).
(f) The applicant or their representative is asked to sign a form entitled: "Handing Down Information Form" in section entitled, "Acknowledgement of Receipt of Documents."
(g) After the handing down our electronic computer system (CASEMATE) is updated to reflect the details in the handing down.
Annexed to the affidavit is a copy of the handing down information form and a copy at annexure B of what is called the "Screen-Dump" from CASEMATE relating to the handing down of the Tribunal decision. Mr Willoughby-Thomas deposes at paragraph seven that those documents record that the applicant or the first applicant attended the handing down and that the documents were not despatched by post. There is no challenge to that evidence.
The Minister also relies on the amended response filed on 18 October 2007 and the covering letter sent to the applicant's on 19 October 2007 enclosing, by way of service, the copy of the response.
The letter goes on to advise the applicants as follows:
(1) Your application for judicial review was filed more than 28 days after you were actually notified of the Tribunal decision and
(2) Pursuant to s.477(2) of the Migration Act (Act), you are entitled to make an application for extension of time to seek judicial review of the Tribunal decision by 8 November 2007. In the event that such an application is made by 8 November 2007 our client will consider its position at that time in relation to whether it will oppose or consent to your application.
(3) If you fail to make an application for extension of time to seek judicial review of the Tribunal decision by 8 November 2007 we are instructed to seek dismissal of your application with costs on the basis that the Court lacks jurisdiction to hear the application under s.476 of the Act.
There is no issue as to the fact that no application for extension of time has been filed at the Court at any time up to commencement of today's proceedings.
The question of a time limit is set out under sub-s.477(1) of the Migration Act. That time limit is set out as follows:
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 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.
The Court does however have a limited power to extend that 28 day period by up to 56 days. That power is contained in sub-s.477(2) of the Migration Act. That subsection says:
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) Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
That is the extent of the Court's power to extend the 28 day period. Subsection 477(3) makes it clear that except as provided by subsection(2) the Federal Magistrates Court must not make an order which allows or has the effect of allowing an application to be made outside the 28 day period. This is a situation where there was an actual notification as opposed to a deemed notification of the Tribunal decision on 16 August 2007. This is not a case where any difficulty arises as set out in Minister for Immigration & Citizenship v SZKKC[1]. It is clear that actual notification must be accomplished by physical delivery and I am satisfied on the evidence before me that that actual notification occurred.
[1] (2007) 159 FCR 565; [2007] FCAFC 105
It will be seen that the 28 day time limit under sub.s.477(1) gave the applicants until 13 September 2007 to file their application. However, the applicants did not file that application for review until 17 September 2007. As such, their application was four days outside the 28 day time limit. However, that situation was still subject to remedy if the application had contained an application for extension of time. The applicants needed to include on their application an indication that they were applying for an extension of time and they needed to provide evidence by way of affidavit to show the Court that it was in the interests of the administration of justice to extend that time.
Unfortunately, the application made it clear that the applicants were not applying for an extension of time and the affidavit in support made no reference to the fact.
The First Respondent, the Minister, filed an amended response on 18 October 2007. That amended response advised that the First Respondent opposed the application on the basis that the Federal Magistrates Court did not have jurisdiction. The response went on to set out the relevant times and referred to the provisions of sub.s.477(1) and 472 of the Migration Act and stated that the Court did not have jurisdiction under s.476 of the Act.
At that stage of course it was still open to the applicants to apply for an extension of time. Indeed, whilst the response did not necessarily make that clear, the covering letter from the minister's solicitors on 19 October, which I have already quoted, did make it clear that it was open to the applicants to make an application for extension of time up to 8 November 2007. Unfortunately, the applicants did not do so.
There is nothing to show that there was any implied application for an extension; quite the reverse in fact. The applicants indicated in their application they did not apply for an extension. It has been held that the Court has no power to back-date an application for an extension and no power to remedy a failure to apply for an extension and the requirement that an application for an extension of time must be made within a total of 84 days of notification as required by subsection 477(2) of the Migration Act is a mandatory provision (see SZICV v Ministerfor Immigration and Anor[2]). That decision, which was a decision in this Court of Smith FM, was upheld on appeal by the Full Court of the Federal Court in SZICV v Minister for Immigration &Citizenship[3] where Besanko J said at [71]:
Section 477 required in this case not only an order by time be further extended by "up to 56 days" but first "an application for that order" within 84 days of 1 December 2005, i.e. by 24 February 2006. No application or other request was made within that period. The use in sub-s.477(2) of the words, "if an application for that order is made" conveyed the idea that a positive step is required. The Minister was prepared to concede that no particular formality was required. However, in my view, some initiative from the appellant or having his authority was clearly necessary.
[2] [2006] FMCA 1063; 202 FLR 200
[3] [2007] FCAFC 39
In the case before me there was no application or request for an extension of time within the 84 day period provided under sub.s.477(2) of the Migration Act. That time limit is mandatory and regrettably for the applicants the time has expired. The Court has no power to extend the time or to provide for any backdating of the application.
Where an application is made out of time under the provisions of s.477 of the Migration Act where no extension of time has been granted or is possible to be granted, the Court has no jurisdiction. Where the Court does not have jurisdiction to entertain an application, the application is described as incompetent. It is regrettable that the applicants, who were not legally represented in these proceedings, have missed the opportunity to apply for an extension of time. They were referred to a lawyer on the Refugee Review Tribunal Legal Advice Panel. The Court made the referral on 18 October 2007, which was within the time. I note from the Court file that the advice came back from the lawyer concerned on 27 November 2007 advising that advice had been given.
There is no information before the Court as to when that advice was given other than the date of the solicitor's letter, which is outside the period of time required by the Act, and there is no indication of course as to the advice that was given.
Unfortunately for the applicants, their application is out of time and the Court has no jurisdiction to hear it. Accordingly, the application is dismissed as incompetent.
There are two matters I need to cover at this stage. First; counsel for the respondent has submitted that it would be appropriate to add the two children of the two applicants as applicants to these proceedings. They were applicants to the Refugee Review Tribunal. The first applicant, who was the principal applicant - and I note that the other applicants relied on her claim as part D applicants - did not at the time add the two children as two applicants when the proceedings were commenced.
The argument given to me by counsel for the first respondent is that it would be convenient to add the children as applicants in order to forestall any application that may be made in the future in respect of the tribunal decision no matter what the likelihood or otherwise of the success would be. I am not persuaded by that argument. In my view it is futile to add two children as applicants to an application, which the Court has found incompetent and an application where the Court has no jurisdiction. There is no benefit to be gained and indeed if the two children were to bring their own separate application the question of lack of jurisdiction would be immediately apparent. I propose not to add the two children as applicants.
The first and second applicants, however, face an application for costs on behalf of the First Respondent Minister in the sum of $5000. This is an appropriate matter for costs. I am aware that the application was listed for final hearing and indeed it is quite clear that the case was prepared on the basis that the substantive issues may well be argued before the Court. As it turns out; that was not necessary but quite clearly with an application listed for final hearing the case must be prepared in full.
I am satisfied that this is an appropriate matter for costs and the amount of $5000 is an appropriate figure under the Federal Magistrates Court Rules.
The applicants are to pay the First Respondent's costs in the sum of $5000.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 17 June 2008
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