SZISF v Minister for Immigration

[2006] FMCA 868

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZISF v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 868

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – notice of objection to competency filed by first respondent – applicant’s application to this Court filed more than 84 days after notification of the decision of the Refugee Review Tribunal.

Migration Act 1958 (Cth), ss.477(2)(a); 477(3)
Migration Litigation Reform Act 2005 (Cth), sch. 1 cl. 42

Applicant: SZISF

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG1122 of 2006

Judgment of: Emmett FM

Hearing date: 31 May 2006

Date of last submission: 31 May 2006

Delivered at: Sydney

Delivered on: 31 May 2006

REPRESENTATION

Applicant appearing in person

Solicitors for the Respondent: Mr A. J. Crockett, Australian Government Solicitor

ORDERS

1. The Applicant’s application is incompetent and is dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the amount of $1200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1122 of 2006

SZISF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 13 April 2006 the applicant filed an application in this Court seeking review of a decision of the Refugee Review Tribunal dated 4 May 2004 and handed down on 26 May  2005.

2. The application records that the applicant was notified of that decision on 26 May 2005. The applicant gave evidence this morning confirming that indeed that was the date upon which notification was received by her of the Tribunal’s decision.

3. The applicant submitted that when she sought information from the Tribunal in respect of her file that the Tribunal was unable to locate her file and which resulted in her delaying filing of her application for review of the Tribunal’s decision by 2 or 3 months.  She stated that she was originally given a new file number by the Tribunal and then they located the old file number.

4. That evidence is not relevant to the notice of objection to competency filed by the first respondent on 27 April 2006 in circumstances where the applicant has both written in her application and confirmed in evidence before this Court this morning that she was notified of the Tribunal ‘s decision on 26 May 2005.

   The applicant is deemed to have been notified of the Tribunal decision on 1 December 2005 (Migration Litigation Reform Act 2005 (Cth), Sch. 1 Part 2 Clause. 42).

5. Pursuant to s.477(2)(a) of the Migration Act 1958 (“the Act”) the Court has power to extend by up to 56 days an application that is made within 84 days of notification of the decision and the Court is satisfied that it is in the interests of the administration of justice to do so.

6. After a period of 84 days has expired from the date of notification, in this case deemed notification, this Court has no jurisdiction to entertain an application, or an application for an extension of time beyond the 28 day period provided for in 477(3) of the Act.

7. Section 477(3) of the Act says that:

   “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 the 28 day period.

8. In these circumstances the applicant’s application is incompetent and is dismissed.

9. The first respondent seeks costs fixed in the amount of $1200 in circumstances where the schedule of costs attached to the Federal Magistrates Court Rules2001 provides for a sum in excess of the amount sought.  Accordingly, I am satisfied that the amount sought is reasonable.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S.Kwong

Date:  16 June 2006