SZMYE v Minister for Immigration - [2008] FMCA 1621

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMYE v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1621

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – show cause application made late and incompetent.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.430, 430B, 477

SZKNX v Minister for Immigration [2008] FCAFC 176

Applicant:

SZMYE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3007 of 2008

Judgment of:

Driver FM

Hearing date:

3 December 2008

Delivered at:

Sydney

Delivered on:

3 December 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr R Baird
Clayton Utz

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 in the sum of $1,000 in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3007 of 2008

SZMYE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

(As corrected)

I have before me a show cause application filed on 19 November 2008. The applicant seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. According to the show cause application, the Tribunal decision was made on 24 April 2008 and the applicant was notified of it on the same day. Those assertions are not correct.
The applicant filed an affidavit with his show cause application which I received. Annexed to that affidavit is a copy of the Tribunal decision. The cover page of the decision shows that the decision was signed on 24 June 2008. At the relevant time, s.430B of the Migration Act 1958 (Cth) (“the Migration Act”) relevantly provided that a decision of the Tribunal was not required to be handed down where the decision was on the application of a person who was in immigration detention. The parties agree that the applicant was taken into immigration detention on 19 March 2008 and remains in detention. I find that the decision of the Tribunal was made on 24 June 2008, the date that the decision was signed. The final page of the decision contains a certification that the decision statement was sent to the applicant on 26 June 2008.
The Minister objects to the application and seeks summary dismissal of it on the basis that the application is incompetent. The Minister's objection is based upon s.477 of the Migration Act, the terms of which are:
(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 general effect of that section is that the Court has no jurisdiction to entertain an application filed more than 84 days after the notification of the Tribunal decision.
I received as evidence the affidavit of Diana Roberts, filed on 28 November 2008. Ms Roberts deposes that a copy of the Tribunal decision was faxed to the Villawood Detention Centre on 26 June 2008. She states that she personally delivered the facsimile copy of the decision at 4.15pm on that day to the applicant. I accept, on the basis of Ms Roberts' affidavit, that she took that action as part of her duties at the Villawood Detention Centre on behalf of the Tribunal and the Minister. The applicant stated from the bar table that although he could not remember precisely when he received the Tribunal decision,

Ms Roberts' assertion must be true and he did not dispute it.
I find that the applicant was actually physically notified of the Tribunal decision on 26 June 2008.
It follows that more than 84 days have passed since the applicant was notified of the Tribunal decision. That notification occurred in accordance with the Tribunal's obligation.
This case is relevantly indistinguishable from SZKNX v Minister for Immigration [2008] FCAFC 176 at [25]:
Irrespective of how the Tribunal has complied with its obligation under s 430(2), if an applicant has physically received a copy of the Tribunal’s decision and reasons, as has happened in the present case, there has been actual notification of the decision for the purposes of s 477. Accordingly, the appellant received actual notification of the Tribunal’s decision of 26 February 1999 prior to 17 March 1999. It follows that the Federal Magistrates Court did not err in concluding that it did not have jurisdiction to entertain the appellant’s application for Constitutional writ relief in relation to the Tribunal’s decision of 26 February 1999. The appeal should be dismissed with costs.
It follows that the application before the Court is incompetent and must be dismissed on that basis. I so order.
Costs should follow the event in this case. The Minister has incurred costs of approximately $4,000. The Minister seeks costs of 50 per cent of that amount or $2,000. Scale costs in this instance would be $1,000.
The applicant expressed a desire that the Court should entertain his application but had no submissions to make on costs. The applicant explained from the bar table during the course of submissions on the competence of his application that he had been assisted at the Villawood Detention Centre by another detainee from Malaysia. That detainee had explained to him that he had approximately three months to apply to the Court. Unfortunately, the applicant had given this detainee documents necessary for the making of his application to the Court. That detainee was removed from Australia and the applicant told me that he had to arrange for replacement copies of the documents. I have no reason disbelieve what the applicant told me.
I find that the application was made in good faith and the applicant intended to make his application within time.
The Minister has incurred significant costs in establishing that the application is incompetent. If the application had been made in circumstances where the applicant intentionally delayed or knew that the application was incompetent then a substantial award of costs might be called for. However, in the present case, I accept that the applicant has been prevented from making a competent application by circumstances beyond his control. The costs incurred by the Minister are a normal incident of establishing the incompetence of the application. The Minister has gained a significant advantage in having the application dismissed at the first court date. In all the circumstances, I am not persuaded that I should depart from the Court scale.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,000 in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 5 February 2009

CORRECTION

Paragraph 7 – delete “pursuant to s.430(2) of the Migration Act as it then stood.