SZMCK v Minister for Immigration

[2008] FMCA 955

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMCK v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 955

MIGRATION – Review of Refugee Review Tribunal decision – application filed out of time – circumstances in which extension can be granted.

Migration Act 1958, ss.430, 430B, 441A, 476 & 477

Minister for Immigration and Citizenship v SZKKC & Ors (2007) FCAFC 105
Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651

MZXOT v Minister for Immigration and Citizenship [2008] HCA 28

Applicant: SZMCK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 751 of 2008

Judgment of: Lindsay FM

Hearing date: 2 July 2008

Date of last submission: 2 July 2008

Delivered at: Adelaide

Delivered on: 2 July 2008

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondent: Mr P. D’Assumpcao

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Application filed on 31 March 2008 do stand dismissed.

2. The applicant do pay the first respondent’s costs of, and incidental to, these proceedings fixed in the sum of TWO THOUSAND DOLLARS ($2,000.00).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

SYG 751 of 2008

SZMCK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application brought pursuant to s.476 of the Migration Act 1958 (the “Act”) to review a decision of the Refugee Review Tribunal, which affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa.

2. At the outset, the respondent takes the issue arising from s.477 of the Act. That section provides for a twenty-eight day period in which applications for review of migration decisions are to be made. It enables the applications to be extended by a period of up to fifty-six days, but only if the conditions described in sub-s.(2) are fulfilled; that is, that the application for that order is made within eighty-four days of the actual, as opposed to the deemed, notification of the decision. It is plain that this Application, filed as it was on 31 March 2008, is well outside the eighty-four day period.

3. As to when the decision was actually served, that is a matter that is to be determined by reference to ss.430 and 441A of the Act. Sub-s.(6) of 430B provides:

   If the applicant is not present at the handing down of the decision, the Tribunal must notify the applicant of the decision by giving the applicant a copy of the statement prepared under sub-s.430(1).  The copy must be given to the applicant:

   (a) within 14 days after the day on which the decision is handed down; and

   (b) by one of the methods specified in s.441A.

4. The reference to s.430 is simply a reference to the requirement for the tribunal to provide a written statement when it makes a decision on a review.

5. The decision of the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZKKC & Ors (2007) FCAFC 105 is authority for the proposition that the only satisfactory mode of service of the decisions to a person in detention, such as this applicant was at the relevant time, is that prescribed by s. 441A(2) of the Act, and that is by personal service.

6. The Minister contends that the decision was served upon the applicant in accordance with the requirements of that decision and has produced a copy of a document called a detainee document register of 25 September 2007 in which the applicant acknowledges with his signature his receipt of the decision from the Refugee Review Tribunal on that day, and the applicant candidly conceded before me today that he was served with that decision at that time.

7. In those circumstances, it is manifest that the applicant is not in a position to comply with the requirements of s.477(2)(a) and accordingly, in accordance with sub-s.(3) of s.477, the application cannot be “allowed”, to use the language of the section.

8. The High Court considered the question of time limits as it related to applications to the High Court in its original jurisdiction in the case of Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651. There was no challenge to the validity of the time limits operating in the Migration Act with respect to the Federal Magistrates Court or the Federal Court in that case.

9. More recently, in MZXOT v Minister for Immigration and Citizenship [2008] HCA 28, the High Court, in considering whether or not it had an inherent power of remitter, in the joint decision of the Chief Justice and Gummow and Hayne JJ observed the lack of challenge to the validity of the time limits in respect of this Court in Bodruddaza (supra) without further remark, at [3] and [53] of that judgment.

10. In all of the circumstances, I am obliged to proceed in accordance with s.477 sub-s.(3).

11. The Application is dismissed.

12. Consequently, there is an application for costs. It is appropriate there be an order for costs. The application was one made outside of the time limits prescribed by the Act. The Minister is seeking a relatively modest amount.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate:  Ms N. Julius

Date: 15 July 2008