Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
SZKOY v Minister for Immigration and Citizenship [2008] FCA 155
SZKOY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1853 OF 2007
STONE J
22 FEBRUARY 2008
SYDNEY IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 1853 OF 2007
BETWEEN: SZKOY
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE: STONE J
DATE OF ORDER: 22 FEBRUARY 2008
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. The application for leave to appeal be dismissed. 2. The applicant pay the first respondent's costs of this application fixed in the amount of $1,500.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 1853 OF 2007
BETWEEN: SZKOY
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE: STONE J
DATE: 22 FEBRUARY 2008
PLACE: SYDNEY
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:
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