SZNGA v Minister for Immigration & Anor - [2009] FMCA 246

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNGA v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 246

MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – application is out of time.

PRACTICE & PROCEDURE – Jurisdiction – where court has no jurisdiction as application is out of time.

Migration Act 1958 (Cth), s.477

Minister for Immigration & Citizenship v SZKKC (2007) 159 FCR 565
SZKNX v Minister for Immigration & Citizenship [2008] FCAFC 176

Applicant:

SZNGA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 330 of 2009

Judgment of:

Scarlett FM

Hearing date:

23 March 2009

Date of Last Submission:

23 March 2009

Delivered at:

Sydney

Delivered on:

23 March 2009

REPRESENTATION

The Applicant:

In Person

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The Application is dismissed as not competent as the Court has no jurisdiction.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $2500.00 and I allow 3 months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 330 of 2009

SZNGA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Application

The application before the Court is an application by the Minister for Immigration & Citizenship to dismiss the applicant's application for review of a decision of the Refugee Review Tribunal because it is out of time. The Minister claims that the application is so far out of time that the Court has no power to extend the time to file an application for review of the Tribunal decision and so the Court has no jurisdiction to hear the application. The time limits are set out in s.477 of the Migration Act. Subsection 477(1) says that:
An application to the Federal Magistrates Court for a remedy to be granted in 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.
Subsection(2) provides that:
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.
However, subsection (3) makes it clear that except as provided by sub-s.(2), the Court has no power to make an order allowing an applicant to make an application outside that 28‑day period.
The timing in this case is very important. The Refugee Review Tribunal signed its decision on 17 October 2008. It did not hand down its decision until 11 November 2008. On that day the applicant attended the office of the Tribunal when the decision was handed down. The applicant produced his passport by way of identification and signed the Tribunal's handing down information form acknowledging receipt of the decision record and notification letter. This means that the time for filing an application to this Court started to run on 11 November 2008. That meant that the 28-day period came to an end on 9 December 2008. The applicant did not file an application for review of the Tribunal decision before 9 December 2008. Indeed, his application and affidavit in support were not filed until 12 February 2009.
The applicant has told the Court that after he received the Tribunal decision record he consulted a solicitor. He has produced to the Court copies of the following documents:
a)A tax invoice on the letterhead of Woodson & Associates, solicitors, migration agents and notary public, of 303 Pitt Street, Sydney.
That tax invoice shows that the applicant was charged the sum of $500 for advice, consultation and perusal of documents. The applicant paid $500 on that date. The applicant produced a standard costs disclosure document and a standard costs agreement, both dated 4 December 2008. A perusal of the standard costs disclosure indicates that one of two solicitors of that firm would be responsible for the matter and quoted estimates of the costs that would be charged prior to the hearing and up to and including a single day's hearing. The solicitors of course did not prepare any documents that were filed in this Court. It appears that they provided advice on 4 December, charged the applicant a fee, which he paid. There is nothing to show that the applicant gave instructions for the preparation of an application to this Court for review of the Tribunal decision or any affidavit in support. The applicant has told the Court that he believed that the lawyer involved went back to his own country and claimed that that was the reason for the delay.
He claimed that he went to see another lawyer but because by that stage his application was out of time, at least out of time for the 28 days, that the lawyer would not take the case. The applicant then said that his application and affidavit in support were prepared for him by a friend. The friend certainly appears to be literate in English.
The application bears the written date 2 February 2009. The affidavit, curiously enough, bears two different dates. On the first page the date that it was sworn or affirmed is given as 7 February 2009, but on the second page in the attestation clause the date 2 February 2009 appears. The alternative jurat for a non-English-speaking affidavit was not completed so it would appear that the justice of the peace, one Jason Shiao, whose qualification is JP176750, appears to be of the belief that the applicant was able to speak or understand English. That does not appear to be the case today.
For some unexplained reason neither the application nor the affidavit were filed until 12 February 2009. In applying the provisions of s.477 of the Act, it is clear that an application should be filed within 28 days. In this case it should have been filed by 9 December 2008. If an applicant is not able to file an application at the Court by that time, subsection (2) of s.477 allows a further period of 56 days to file an application, which includes an application to extend the time of filing the application. That did not happen in the application before the Court.
On page 2 under the heading "Application for Extension of Time" there are two boxes underneath the words:
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 is a box for yes and a box for no. A tick was placed in the box for no. If the application had indeed been filed on 2 February 2009, the date when it appears to have been signed, there should have been an application for extension of time. The box for yes should have been ticked. However, there is no application for extension of time. To make matters worse, the application was not filed on 2 February 2009. It was not filed until 12 February 2009, which is outside the maximum 84‑day time limit because that time limit would have expired on 3 February 2009. Thus it would appear that the application is irretrievably out of time.
Mr O'Brien who appears for the Minister has referred the Court to the decisions of the Full Court of the Federal Court in Minister for Immigration & Citizenship v SZKKC[1] at [35]-[37] and also SZKNX v Minister for Immigration & Citizenship[2] at [25]. The submission is made, and correctly, that as the applicant was present at the handing down of the decision on 11 November 2008 he received actual notification of the Tribunal's decision on that day for the purposes of subsection 477(1) of the Act. The handing down information form, which appears to be signed by the applicant, is annexed to an affidavit of Brendan Robert O'Brien affirmed and filed 2 March 2009. It is dated 11/11/08 and there is a signature of acknowledgement of the decision record and notification letter. That signature is in Chinese script on the line marked "review applicant". Another copy of that document can be found in the Court Book at page 101.
[1] (2007) 159 FCR 565
[2] [2008] FCAFC 176
I have compared the signature on the handing down information form with the signature of the applicant on the application and with the signature of the applicant on the affidavit. The three signatures appear to me to be identical. I am satisfied that the applicant did receive notification of the Tribunal decision on 11 November 2008 and, in fairness to the applicant, he has not denied that he received a copy of the document on that day. It follows then, as I said, that time started to run on 11 November 2008 and that the application should have been filed by 9 December 2008. It was not. It was open to the applicant within a further period of 56 days, i.e., by 3 February 2009, to file an application which contained within it an application for extension of time. Regrettably, that did not happen either. The application and affidavit in support were not filed until 12 February 2009, which makes the application out of time and irretrievably out of time.
Under subsection 477(3) of the Act, the Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application outside the 28-day period except within the 56-day period in sub-s.477(2). Because that did not happen, the application is out of time. It is not competent in the sense that the Court does not have the jurisdiction to hear it. It follows that it must be dismissed.
There is an application for costs on behalf of the first respondent Minister. This is an appropriate matter to make a costs order and the amount sought, namely, $2500, is an appropriate figure. The applicant says that he has been supported by his sister and does not otherwise have the funds to meet the costs order. That may well be the case but it is not a reason not to make an order for costs. I will, however, take that factor into account in allowing time to pay.

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

Associate: A. Coutman

Date: 1 April 2009