SZMVZ v Minister for Immigration
[2008] FMCA 1534
•12 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMVZ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1534 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – show cause application filed out of time and incompetent. |
| Migration Act 1958 (Cth), s.417 |
| Applicant: | SZMVZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2697 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 12 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2008 |
REPRESENTATION
No appearance by or on behalf of the Applicant
| Solicitors for the Respondents: | Mr P Snell Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed as incompetent.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $500.
The Court directs that the Minister arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2697 of 2008
| SZMVZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed on 20 October 2008. The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) annexed to a supporting affidavit filed on the same day.
The applicant did not appear for today's first court date hearing on his application. The matter was called three times and on the third occasion the applicant was called by his real name. There is no explanation for the applicant's non attendance.
The applicant served his application and supporting affidavit on the Minister's Department prior to today's hearing and must have been aware of the court fixture which is clearly identified on the face of his affidavit and in the application form.
The application asserts that the decision of the Tribunal was made on 26 June 2000. That was the date the decision was signed. The decision was handed down on 12 July 2000. The application asserts that the applicant was notified of the Tribunal decision eight years after the decision was made, on 17 July 2008. The applicant's affidavit indicates that he had, through his advisor, received a copy of the Tribunal decision significantly earlier than the date of asserted notification, but that the applicant was not familiar with the contents of the Tribunal decision because it had not been read to him by his then migration agent. It also appears from the applicant's affidavit that after the Tribunal decision was made an approach was made to the then Minister to intervene pursuant to s.417 of the Migration Act 1958 (Cth) (“the Migration Act”). I assume from the fact this application has been made that the approach to the Minister was not successful.
The Minister filed a response to the application on 10 November 2008 seeking the dismissal of the application, among other reasons, because of unexplained and unwarrantable delay in bringing the application. The delay of eight years between the making of the decision and the application to the Court is a very significant delay and if the Court had jurisdiction in relation to the matter there would be a serious issue to consider as to the exercise of the Court's discretion. However, it does not appear to me that the Court has any discretion in this matter.
I infer from the applicant's application and affidavit that although he was aware of the Tribunal decision in or about 2000, because the decision was received by his migration agent, he followed the advice of his migration agent to seek Ministerial intervention rather than to seek judicial review of the decision. That approach having been unsuccessful, the applicant now seeks review before the Court.
The applicant asserts in his application that he was notified of the decision for the purposes of the Migration Act on 17 July 2008. I have no reason to disbelieve that assertion. I infer that the notification that the applicant asserts is actual physical notification.
Assuming the applicant's assertion as to notification of the Tribunal decision is accurate, then the application is incompetent. That is because 95 days passed between the date of notification and the filing of the application. After a period of 56 days has elapsed from the date of notification of a Tribunal decision the Court has no jurisdiction to entertain a request for an extension of time. The general limitation period is 28 days, but time may be extended up to a maximum of 56 days provided that that request is made within that period of 56 days. In his application the applicant seeks an extension of time, but given that the application was not filed until 20 October 2008, it is plain that the request was not made within the statutory prescribed period.
It follows in those circumstances that the application is incompetent and should be dismissed on that basis. I will so order.
Costs should follow the event. Scale costs in this instance would be $1,000, but the solicitor for the Minister conceded that the Minister's actual costs might well be less than that amount. I am satisfied that costs of not less than $500 have been properly and reasonably incurred to this point in this matter when considered on a party and party basis.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 14 November 2008
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