SZMVG v Minister for Immigration
[2008] FMCA 1427
•24 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMVG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1427 |
| MIGRATION – Refugee Review Tribunal – practice and procedure – whether the Court had jurisdiction to consider the application for judicial review – whether the applicant met the requirements of s.477 of the Migration Act 1958 (Cth). |
| Migration Act 1958 (Cth), ss.198(6); 477; 477(2); 477(3) |
| SZKNX v Minister for Immigration & Citizenship [2008] FCAFC 176; Xie v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 543; Minister for Immigration and Citizenship v SZIQB [2008] FCAFC 20 |
| Applicant: | SZMVG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2598 of 2008 |
| Judgment of: | Emmett FM |
| Hearing dates: | 14, 15 & 24 October 2008 |
| Date of Last Submission: | 24 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Burwood |
| Counsel for the Respondents: | Mr J. Smith |
| Solicitors for the Respondents: | Mr B. May, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2598 of 2008
| SZMVG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
By amended application filed on 21 October 2008 the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 May 1999.
The first respondent contends that this Court has no jurisdiction to consider that application on the basis that the application filed by the applicant seeking judicial review was not filed in accordance with the statutory regime, in particular with s.477 of the Migration Act 1958 (Cth) (“the Act”). Section 477 is as follows:
“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 effect of s.477 is that an applicant has 28 days from actual notification of the decision of the Tribunal to him in which to file an application for judicial review. Pursuant to s.477(2) of the Act, this Court can extend that time limit of 28 days by a further period of
56 days up to a maximum of 84 days. Thereafter s.477(3) of the Act states that the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, the applicant to make an application outside that 28 day period.
Mr Smith, counsel for the first respondent, read two affidavits of Angela Nanson. The first affirmed 14 October 2008 and the second affirmed 22 October 2008. Mr Smith also read the affidavit of Benjamin James May, affirmed 24 October 2008. Mr Smith tendered an annexure to the affidavit of Ms Nanson, affirmed 14 October 2008, being a letter dated 14 May 1999 from the Tribunal to the applicant enclosing a copy of the Tribunal's decision made on that same date.
In her affidavit affirmed 22 October 2008, Ms Nanson annexes a copy of a request for access to documents made by the applicant under Freedom of Information Act, dated 26 September 2005.
In sworn evidence given to this Court this morning, the applicant confirmed that the signature on that document was his signature.
Also annexed to the affidavit of Ms Nanson is a letter from the Tribunal dated 5 October 2005 addressed to the applicant in response to his Freedom of Information request. This letter informed him of the relevant documents pursuant to his request and that the decision had been made to release the documents to him in full. In oral evidence this morning, the applicant confirmed that he received that letter and also received, some time in October 2005, the documents referred to, including a copy of the Tribunal’s decision, dated 14 May 1999.
In the decision of SZKNX v Minister for Immigration & Citizenship [2008] FCAFC 176 the Full Court of the Federal Court stated at [25] that:
If an applicant has physically received a copy of the Tribunal's decision and reasons there has been actual notification of the decision for the purposes of s.477 of the Act.
In the circumstances of this case, it is the uncontroverted evidence before this Court that the applicant received actual notification of the Tribunal's decision some time in October 2005. The time period, even if extended pursuant to s.477(2) of the Act, had well and truly run out prior to the applicant filing his application for judicial review of the Tribunal’s decision on 9 October 2008.
The applicant also gave evidence to this Court that this was the first application made by the applicant for judicial review of the Tribunal's decision. Quite plainly the filing of that application is well outside the time limits provided for in s.477 of the Act.
In the circumstances, and pursuant to s.477(3) of the Act, this Court cannot make an order to extend any longer the time period for the applicant to file his application seeking judicial review of the Tribunal's decision.
Accordingly, the proceeding commenced by the applicant by way of application filed 9 October 2008 and the further amended application of 21 October 2008 are dismissed.
RECORDED : NOT TRANSCRIBED
Procedural history
For the sake of completeness, the history of this matter before the Court commenced on 9 October 2008 when the applicant filed an application for judicial review of the Tribunal’s decision, dated 14 May 1999, and an interlocutory order to prevent his removal from Australia. The applicant had received a notice of removal from Australia pursuant to s.198(6) of the Act dated 7 October 2008. The notice provided for his removal on 9 October 2008, however that event did not come to pass.
The applicant filed two affidavits in support of his interlocutory application. The applicant appeared before this Court on 14 October 2008 and was unrepresented and did not require the assistance of an interpreter. Mr Markus appeared on that occasion for the first respondent.
Mr Markus conceded that the decision of the Tribunal, dated 14 May 1999, was affected by jurisdictional error on the basis that the Tribunal had failed to comply with a procedural requirement in inviting the applicant to come to a hearing based on a decision of Cooper J in Xie v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 543 (“Xie”). However, Mr Markus referred the Court to the decision of Minister for Immigration and Citizenship v SZIQB [2008] FCAFC 20 (“SZIQB”) where the Full Court of the Federal Court held that, even in the face of a failure to comply with a procedural requirement of the Act, an applicant is required to explain satisfactorily the delay of
7 years in seeking judicial review of the tribunal’s decision. SZIQB appears to be on all fours with the case before this Court. The error made by the Refugee Review Tribunal in Xie was exactly the same as that in the case presently before this Court and the Federal Court in SZIQB had regard to that fact.
The applicant gave evidence to this Court to explain this delay and the Court stood the matter over for judgment the following day. The following morning, being 15 October 2008, it became apparent to the Court that there was no current removal notice in respect of the applicant pursuant to s.198(6) of the Act. For that reason, the Court set down the applicant’s application for judicial review for final hearing today.
The Court referred the applicant to the RRT Legal Panel Advice Scheme and an adviser met with the applicant at Villawood Detention Centre on 16 October 2008. The Court also sent to the applicant and the first respondent’s solicitors on 15 October 2008 a copy of the transcript of the proceeding on 14 October 2008, including the applicant’s evidence about his delay and his cross-examination by Mr Markus.
Directions were also made by me on 15 October 2008 granting the applicant leave to file any amended application and further evidence. Pursuant to that leave, on 21 October 2008 the applicant filed an amended application and affidavit in support and submissions were filed by the panel advisor in support of the applicant’s application on 22 October 2008.
On 23 October 2008, the first respondent filed an outline of submissions raising for the first time the issue of the competence of the application filed for judicial review on the basis that it was filed outside the mandatory time limits provided for in s.477 of the Act and, accordingly, this Court had not jurisdiction to consider the matter further.
The matter of the Court’s jurisdiction was considered first by the Court today, following the further evidence given by the applicant referred to above in these Reasons. However, having determined that this Court had no jurisdiction to consider the applicant’s application for judicial review of the Tribunal’s decision, dated 14 May 1999, the question of the exercise of the Court’s discretion to grant relief did not arise.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 28 October 2008
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