SZJIA v Minister for Immigration and Citizenship

Federal Court of Australia|2008-04-10|Before: Cowdroy J

REASONS FOR JUDGMENT 1 By application for extension of time to file and serve a notice of appeal filed on 29 February 2008 the applicant seeks to appeal from the decision of Federal Magistrate Raphael delivered on 24 November 2006. The application is supported by an affidavit of the applicant sworn on 29 February 2008 and filed on the same day. The applicant is unrepresented and has been in detention since June 2008. 2 The applicant entered Australia from China on 10 February 2001. On 12 June 2001 he applied for a Protection (Class XA) visa. Such application was refused by a delegate of the Minister for Immigration and Citizenship ('the Minister') on 27 September 2001. 3 On 25 October 2001 the applicant applied to the Refugee Review Tribunal ('the Tribunal') for review of the delegate's decision. Although invited to attend a hearing before the Tribunal, the applicant indicated by his Response to Hearing Invitation dated 30 August 2002 that he did not wish to attend. The Tribunal delivered its decision on 15 October 2002 which affirmed the decision of the delegate. The Tribunal found that there was insufficient information before it to be satisfied that the applicant was a genuine Falun Gong practitioner. Accordingly, the Tribunal was not satisfied that the applicant had any basis for his assertion that he would be persecuted because of his practice of Falun Gong if he returned to the People's Republic of China. 4 An application was thereafter made on 8 November 2002 by a migration agent on behalf of the applicant to the Minister to intervene pursuant to s 417 of the Migration Act 1958 (Cth) ('the Act'). Such application was refused on 7 April 2003. 5 On 6 September 2006 the applicant filed in the Federal Magistrates Court of Australia an application for judicial review of the Tribunal's decision. Such application was heard in before Raphael FM on 24 November 2006. His Honour dismissed the application on the ground that the Court had no jurisdiction to entertain the application under s 477 of the Act. 6 Raphael FM recorded that the applicant had testified that he had been told by his migration agent that the decision of the Tribunal had been received and that he had been unsuccessful. His Honour thereafter noted that an application had been made to the Minister, signed by the applicant, seeking the Minister's intervention. He therefore concluded that the applicant had received notification of the Tribunal's decision. His Honour said: The notification given to the applicant of the decision of the Tribunal appears to me to have complied in all respects with the requirements of ss.430 to 430D Migration Act and the method by which it was communicated to have complied with s.441A.

In those circumstances the provisions of s.477 as amended now apply so that actual notification of that decision was deemed to have been given on 1 December 2005. If the applicant was to argue that some other date should be the date upon which actual notification took place, he would have to establish the same by evidence. He has not done so. He has in fact confirmed that he was aware of the decision. He may not have seen the decision but that is not the fault of or the concern of the Minister. What an applicant decides to do, having been notified of the existence of an unfavourable decision, is up to the applicant. The Department should not be held to ransom by an applicant who declines to look at a decision which he does not wish to see.

As notification of the decision was received by this applicant on 1 December 2005, he is subject to the time limits contained in s.477 and Clause 42, Schedule 1, Part 2 of the Migration Litigation Reform Act 2005. The applicant was allowed 28 days in which to make his application or, with the approval of the court, a further 56 days making a total of 84 days. The applicant did not apply for the approval of the court for an extension of time under s.477(2) and therefore this application which he made in September 2006 is substantially out of time. The provisions of s.477 are clear. This court has no jurisdiction to entertain the application.

7 In view of his Honour's findings, his Honour did not consider any of the merits of the applicant's grounds. 8 Raphael FM's decision was delivered on 24 November 2006. On 12 July 2007 the Full Court of this Court delivered its judgment in Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105. The Full Federal Court found that the Tribunal was required to give notice of its decision to an applicant by physical delivery. The Court said: It follows from the earlier analysis that I would reject the Minister's submissions and the construction urged by him in its various and alternative aspects. The result is that the substance of the requirements stated by the High Court in WACBremains in effect despite the commencement of Division 7A and the repeal of s 478 in its earlier form. For the purposes of s 477 actual notification to an applicant of a decision of the RRT must be accomplished by physical delivery of a written statement prepared by the RRT in accordance with s 430(1) to the applicant personally.

9 In the present proceedings there is no evidence that the Tribunal's reasons were ever physically provided to the applicant personally. As such, in accordance with the decision of the Full Court, the time limits provided by s 477 of the Act have not commenced to operate and his Honour's decision discloses a jurisdictional error in the finding that the application for judicial review was time barred. 10 The Full Court's decision in SZKKC is now the subject of an appeal before the High Court of Australia which the Court is informed is likely to be heard in May 2008. Since the High Court's determination is of direct relevance to the issues which are now raised in these proceedings, the Court considers that it should not hear the application at this stage. Instead it should stand adjourned pending delivery of the High Court's decision. Accordingly the Court will order that the proceedings be adjourned to a date to be fixed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Counsel for the Applicant: Applicant appeared in person

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