Case: Minister for Immigration &amp; Citizenship v SZKKC [2007] FCAFC 105
Outcome: followed
Section 477(1) requires " actual (as opposed to deemed) notification of the decision " of the Tribunal. And " actual notification " requires delivery by hand: Minister for Immigration &amp; Citizenship v SZKKC [2007] FCAFC 105 at [37] , [2007] FCAFC 105 ; 159 FCR 565. See also SZKET v Minister for Immigration &amp; Citizenship [2007] FCA 1705. 5 The Applicant had been in attendance when the decision of the Refugee Review Tribunal was handed down and received such notification. A " Checklist " completed apparently by Tribunal staff records the following: At the Handing Down Did the applicant attend the handing down? No Has the decision, etc been given to the applicant? No The Application as filed in the Federal Magistrates Court on 13 September 2007 also contains an acknowledgment by the Applicant that " the decision was received " on 17 January 2007. There had thus been compliance with the requirement imposed by s 477(1): cf Minister for Immigration &amp; Citizenship v SZKKC [2007] FCAFC 105 at [1] . 6 The Federal Magistrates Court in its 5 November 2007 decision concluded that proceedings had not been commenced within the time prescribed from the date of actual notification. That Court's reasons were, using the language of that Court, as follows: [5] The solicitors for the respondent Minister submit that the Court has no jurisdiction to hear the application. [6] I am aware of the decision of the Full Court of the Federal Court in Minister for Immigration &amp; Citizenship v SZKKC [2002] FCAFC 105. In that decision Giles J agreeing with Buchanan J said: That an actual notification to an applicant of a decision requires physical delivery of a written statement of the decision prepared by the Refugee Review Tribunal to the applicant. His Honour went on to say: That notification must take place within 14 days of the decision being handed down and referred to subs 430B(6)(a) and s 430B. [7] In this case that is exactly what happened. I refer to an affidavit of Angela Margaret Nanson which was filed in Court on 8 th October 2007 to which is annexed a letter from the Tribunal to the applicant's then advisers advising that the decision would be handed down on 17 th January 2006. There is also annexed the Tribunal's check-list for handing down the decision on 17 th January 2006. [8] The document makes it clear that the applicant attended the handing down on that day and a copy of the decision was given to the applicant. In the circumstances there has been compliance in the requirement of the legislation for physical delivery to the applicant of the written statement of the decision prepared by the Tribunal within 14 days of it being handed down and indeed on the day it was handed down. And such the time limit in s 477 of Migration Act does apply. [9] The applicant did not commence proceedings until 13 th September 2007 which is well outside the time. Accordingly the Court has no jurisdiction to hear the application. The applicant told the Court that the reason for the delay was that he had made an application to the Minister, presumably under s 417 of the Migration Act . That may well be, but it does not affect the operation of s 477. Concurrence is expressed with these reasons as to the operation of s 477. 7 It was not until 3 December 2007 that the Applicant commenced proceedings in this Court seeking leave to appeal from the 5 November 2007 decision of the Federal Magistrates Court. That application also sought ( inter alia ) an order " that compliance with Order 52, subrule 5(2) be dispensed with ." Order 52, r 5 of the Federal Court Rules 1979 (Cth) applies where an appeal only lies to this Court with leave and prescribes a period of 21 days as the period within which such applications are to be made. Relevantly, leave is required from an interlocutory decision of the Federal Magistrates Court: Federal Court of Australia Act 1976 (Cth), s 24(1A). 8 Order 52 r 4(2), it should be noted, provides as follows: An application shall be accompanied by an affidavit showing: (a) the nature of the case; (b) the questions involved; and (c) the reasons why leave should be given. The Affidavit as filed in this Court on behalf of the Applicant annexes a statement addressing the grant of work visas -- but that is irrelevant to the Application now before this Court. The Affidavit further annexes a statement setting forth the orders sought. The Affidavit clearly does not satisfy the requirements of O 52 r (4)(2).