SZIIX v Minister for Immigration and Citizenship

[2008] FMCA 893

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIIX v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 893

MIGRATION – PRACTICE & PROCEDURE – Notice of objection to competency – failure to comply with s.477 of the Act re time limits for filing of application – no extension of time permitted in this case under the Act – no jurisdiction.

Migration Act 1958 (Cth), s.477

Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105

Applicant: SZIIX

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR

File Number: SYG 1349 of 2008

Judgment of: Orchiston FM

Hearing date: 23 June 2008

Date of Last Submission: 23 June 2008

Delivered at: Sydney

Delivered on: 23 June 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application filed 27 May 2008 is dismissed for want of competency.

2. That the applicant pay the first respondent's costs, fixed in the sum of $900 within three months of the date of these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1349 of 2008

SZIIX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR

Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

Notice of objection to competency

1. The first respondent filed a Notice of objection to competency in this Court on the basis that the applicant filed his application for judicial review (the application) in this Court out of time.  In these circumstances, Ms Attard, for the first respondent, submits that the Court has no jurisdiction to entertain the application.

2. I accept the following chronology in this matter:

   ·the Tribunal handed down its decision on 12 February 2008;

   ·the applicant was notified that the Tribunal would be handing down its decision on that day;

   ·Annexure “A” to the affidavit of Ms Attard, dated 12 June 2008, exhibits the Handing Down Information Form of the Tribunal, (which bears the signature of the applicant, [and the applicant confirms today that it is his signature], under the "Acknowledgement of Receipt of Documents” heading), and the Notification letter which is dated 12 February 2008. 

3. In any event, the applicant concedes today before this Court, that he was present at the handing down of the Tribunal decision, and that he received its decision on that occasion.

4. In these circumstances, I accept that there has been actual notification on 12 February 2008 to the applicant of the Tribunal decision under s.477(1) of the Migration Act 1958 (Cth) (the Act). Therefore, the full Federal Court decision of Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105, (to which, I note, the High Court has granted special leave to appeal), does not apply in the present case, since this is a case where there has clearly been “actual”, as opposed to “deemed”, notification to the applicant.

5. Under s.477(1) of the Act, an applicant has 28 days from the date of actual notification of the Tribunal decision to the filing of an application for judicial review in this Court. The Court has a discretion to extend this 28 day period by a further 56 days, with a total period of 84 days for the granting of any such extension: s.477(2)(a).

6. In this case, the applicant filed his application in this Court on 27 May 2008.  The handwritten notation appearing on the application states: “payment made on 27 May 2008”.  The application also bears the Court stamp, on which it records both the date of filing as 27 May 2008 and the fee paid of $350. 

7. I understand that the applicant now seeks an extension of time in this matter. However, when one works out the timeframe in this case, it is evident that the period from the handing down of the Tribunal decision on 12 February 2008 through to the filing of the application in this Court on 27 May 2008, constitutes a total period of some 105 days. This period is clearly beyond the 84 day period contemplated by s.477(2)(a) in which the Court may exercise its discretion to extend the time for filing of an application for judicial review.

8. Section 477(3) makes it clear that the Court has no further jurisdiction once an application is filed, as here, outside of the extended period provided for in ss.(2).

9. I therefore accept the submission by Ms Attard that this Court no longer has power to extend the time for filing of the application.  I note that the applicant appears, from his submissions, to say firstly that he had filed an application “with the Tribunal” for review of its decision on the 12 February 2008, but then to say that he had paid the fee in this Court, and then to say that he had received a letter, that he had to pay the fee and that he came in as soon as he got the letter and paid the fee.  He also submits that his English is poor. 

10. I accept that there would appear to have been some confusion and unawareness on the applicant’s part as to the appropriate procedure for him to apply for judicial review.  However, it is for an applicant to comply with the relevant legislative provision, and once the Court no longer has any discretion, as here, it can no longer consider “the interests of the administration of justice” pursuant to s.477(2)(b) as to whether it should grant an extension of time. Once outside the 84 day period, the Court has no discretion in this regard, hence any arguments put forward by the applicant cannot persist. As Ms Attard submits, it was always open to the applicant to have applied for a fee waiver with the Registry when filing his application.

Conclusion

1. In these circumstances, I consider that the application is out of time and thus lacks competency.  This Court therefore has no jurisdiction to entertain the application.  The application is dismissed for want of competency.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Orchiston FM

Associate:  Duncan Maconachie

Date:  30 June 2008