SZKOY v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from a judgment of the Federal Magistrates Court which dismissed an application for review of a decision of the Refugee Review Tribunal; SZKOY v Minister for Immigration & Anor [2007] FMCA 1488. The Tribunal found that it did not have jurisdiction to review the delegate's decision to refuse the application for a protection visa because the application for review of the delegate's decision had been received outside the mandatory time limit. 2 The applicant is a citizen of the People's Republic of China, who arrived in Australia on 25 June 2006. On 25 July 2006 the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship on the basis that he claimed to have a well-founded fear of persecution due to his practice of Falun Gong. 3 A delegate of the first respondent refused the application for a protection visa on 16 October 2006 and notified the applicant on 19 October 2006. On 28 November 2006 the applicant applied to the Tribunal for a review of that decision. On 2 December 2006, 11 December 2006, and 3 January 2007 the Tribunal sent letters to the applicant at his nominated address indicating that it received the application to the Tribunal one day after the 28 day time limit (including an allowance for receipt of the notification of the delegate's decision of seven working days from the date of the notification) and inviting any information in dispute of the finding. 4 On 5 January 2007 the Tribunal received a submission from the applicant explaining that he breached the time limit because he could not afford a migration agent and an old man from his village had to assist him and could not complete the application within the time limit. 5 The Tribunal found that the notification letter was properly sent under s 494B(4) of the Migration Act 1958 (Cth) but that it did not have jurisdiction to hear the matter because the applicant breached s 412(1)(b) of the Act by applying for a review of the delegate's decision more than 28 days after notification of the decision. The Tribunal did not accept that the submissions made by the applicant provided it with any basis for accepting the review application. The Tribunal held that the time limit was mandatory and therefore the application was not valid. It held that it had no jurisdiction to review the delegate's decision. 6 On the application for review to the Federal Magistrates Court, the applicant effectively claimed that the Tribunal erred in refusing his application for review. The applicant also applied for an extension of time to apply to the Federal Magistrates Court under s 477 of the Act. The Federal Magistrate noted that the Minister did not press the time limit to apply to the Federal Magistrates Court, pursuant to Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105. In considering the time limit to apply to the Tribunal, the Federal Magistrate found that:

"As the time limit in s.412(1)(b) is mandatory, the Tribunal had no option but to make the finding that it did. Accordingly, I am not satisfied that the substantive application has raised an arguable case for the relief that is claimed." 7 The matter was accordingly dismissed under r 44.12(1) of the Federal Magistrates Court Rules 2001 (Cth). 8 By application filed on 12 September 2007 the applicant seeks leave to appeal from the decision of the Federal Magistrate. The sole ground in the draft notice of appeal in this Court claims that: "The applicant had no money to employ an agent for his application to Immigration Department. His friend asked a friend's father who is a 73-yrs old man to help filling in his application forms. Both of us didn't know the limited 28 days of lodging application of review to the Refugee Review Tribunal. We lodged the application only for one day late. The Tribunal refused my application. I lost the chance to present my grounds and evidence. The Tribunal's decision is not justice. Unfortunately the Magistrate Scarlett affirmed the decision. I think the Magistrate Scarlett's decision is unfair." 9 The applicant also filed written submissions in this Court on 19 February 2008 entitled "My Case Report". In those submissions, the applicant does not refer to his friend's father's assistance in preparing his application. Rather the applicant submits that on arriving in Australia, he appointed a migration agent, whom he met through a person from his hometown, to assist him in filling out the application for refugee protection and other matters. The applicant submits that: "When DIAC refused my refugee application, I was unaware what to do instantly and how to do subsequently. All the documents were prepared and submitted by the migration agent on my behalf. My current hard situations were directly attributed to the personal mistakes of the migration agent, who had spoiled my application by lodging my personal appeals one day too late… I think the migration agent's mistakes should not be transferred to me. Due to his mistakes, I am deprived of the right of appeal to the Refugee Review Tribunal: it is unfair to me. " 10 At the hearing before me, the applicant submitted that it was unfair that he be deprived of the opportunity to have the delegate's decision reviewed when he was only one day late. I understand him feeling that the delay was trivial nevertheless, as I explained to the applicant, this Court has no power to extend a mandatory time limit and neither did the Federal Magistrate or the Tribunal. The only submission that the applicant could have made to the Tribunal would have been a submission that he was not outside the time limit and that there was some error in the facts. There has not, however, been any submission to this effect and, on my understanding of the facts, there is no error. 11 The 28-day time limit imposed by s 412(1)(b) and reg 4.31(2)(b) is mandatory. That is the basis on which the Tribunal found it had no jurisdiction to review the delegate's decision. The Federal Magistrate in my view correctly held that the Tribunal had no option but to make the finding that it did. It is irrelevant whether it was the applicant's friend's father or his migration agent who assisted him in his application. That the time limit is mandatory and that the Tribunal has no power to extend the time is now well-established by decisions of this Court; see, for example, Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407, and, more recently, SZIUK v Minister for Immigration and Citizenship [2007] FCA 226, in which his Honour found: "Although the appellant claims that his late application occurred because of the negligent conduct of his Migration Agent it is notable that he did not notify the Department that he had an agent acting for him. In any event, as the Tribunal and the learned Magistrate have held, the application was lodged a week late. The Tribunal did not have power to enlarge time or jurisdiction to entertain the application." 12 Accordingly, the application for leave to appeal must be dismissed with costs. The first respondent had applied for costs fixed in the amount of $1,500. The supporting affidavit by Mr Rohan White, solicitor for the first respondent, states that the actual costs incurred in the matter are in excess of $2,500. On that basis the claim for $1,500 appears supportable and I shall so order. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

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