SZODB v Minister for Immigration
[2010] FMCA 144
•3 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZODB v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 144 |
| MIGRATION – Review of Refugee Review Tribunal – application to the Court filed out of time – extension of time refused. |
| Migration Act 1958 (Cth), ss.412, 476, 477 Migration Regulations 1994 (Cth) |
| Applicant: | SZODB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 187 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 3 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2010 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms E Warner Knight Australian Government Solicitor |
INTERLOCUTORY ORDERS
The application for an extension of time is refused.
The application for review 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 $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 187 of 2010
| SZODB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 2 February 2010 seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 17 June 2008. The Tribunal found that it did not have jurisdiction in the matter because the application to the Tribunal was not made within the period prescribed for such applications, having regard to s.412(1)(b) of the Migration Act 1958 (Cth) (“the Migration Act”) and regulation 4.31(2)(b) of the Migration Regulations 1994 (Cth) (“the Migration Regulations”).
The application before the Court seeks an extension of time, pursuant to s.477 of the Migration Act. It is apparent that an extension of time is required if the Court is to deal with the application. Section 477 of the Migration Act relevantly provides that an application to the Court under the Court’s jurisdiction in s.476 of the Migration Act is to be made within 35 days of the date of the migration decision.
That provision in its present form commenced on 15 March 2009. Under transitional provisions, decisions of the Tribunal made before that date are taken to have been made on the commencing day of the amendments. The present application was filed approximately nine months after 15 March 2009. Section 477(2) relevantly provides that the Court may, by order, extend the 35-day limitation period if an application for an extension of time is made and the Court is satisfied that it is necessary, in the interests of the administration of justice, to make the order.
The applicant has made an extension of time application, but I am not satisfied that the interests of the administration of justice required the making of an order extending time.
The circumstances as explained by the applicant both orally and in writing are depressingly familiar. The applicant asserts that he was assisted by a “migration agent” who delayed making an application to the Tribunal. The applicant was initially unable to provide any name of the agent other than a first name, but I gave him the opportunity to telephone a friend who provided a full name and address. That name and address did not correspond with the name and address of any registered migration agent according to the Migration Agents Registration Authority database. The database did disclose an agent with a similar name and similar address. The applicant was not able to say with any certainty who the agent was.
The Minister tendered documents which establish that the involvement of a migration agent was not disclosed either to the Minister’s Department or to the Tribunal. This gives rise to the implication that if the applicant was assisted by anyone, either before the Minister or the Tribunal, then that person was not a registered migration agent. The applicant asserts that he is the victim of an unscrupulous person who took money for the provision of assistance which was not adequate or competent. However, the documents that he signed provided his own address for correspondence and the Minister’s Department wrote to that address to inform the applicant of the outcome of his protection visa application. That letter was despatched in accordance with the requirements of law. The letter was returned to sender, but I am satisfied that the applicant was lawfully notified in accordance with the Migration Act and Migration Regulations. It follows that the Tribunal was correct in finding that it did not have jurisdiction in the matter because the applicant did not apply to the Tribunal within the time prescribed following a valid notification of the delegate’s decision.
The applicant told the Tribunal by letter that he did not receive the delegate’s notification letter. That appears to be true. He told the Tribunal that he found out about the refusal of his protection visa when he rang the Minister’s Department. Significantly, he did not, in that letter, seek to blame anyone purporting to be a migration agent. The applicant told me from the bar table that he was aware of the Tribunal decision in 2008. He told me that he did not make any application to this Court at that time because the person purporting to be a migration agent who offered to assist him at that time required money that he did not have. He told me that he has since raised sufficient money to pay a migration agent who is different from the person who was formerly assisting him. That person’s involvement is not disclosed in the application to the Court, although I note that the supporting affidavit is witnessed by Ms Weiming Qian, who is a registered migration agent. The applicant confirmed that Ms Qian is assisting him with his present application.
The applicant has not presented any evidence of fraud on the Tribunal by the person who he says was formerly assisting him. Even if such evidence had been available, it is by no means certain that a fraud on the Tribunal is possible before the Tribunal’s jurisdiction is engaged. The Tribunal was correct in finding that it lacked jurisdiction. I see no possibility of that decision being disturbed on review in this Court. The applicant’s explanation for his delay in coming to court is simply one of a lack of money. That is not a satisfactory explanation for the significant lapse of time in this case. I refuse the application for an extension of time.
I will order that the application for review be dismissed as incompetent.
The application having been dismissed, costs should follow the event. The Minister seeks costs fixed in the sum of $2,000. The Minister’s solicitor and client costs are in the order of $2,700. Scale costs would be higher. The applicant asserts impecuniosity, but that is not a reason for the Court to refrain from making a costs order. I am satisfied that costs of not less than $2,000 have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 5 March 2010
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