Do v Minister for Immigration and Multicultural Affairs

[2001] FCA 1393

FEDERAL COURT OF AUSTRALIA

Do v Minister for Immigration & Multicultural Affairs
[2001] FCA 1393

VIET VOC DO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1035 OF 2001

GYLES J
SYDNEY
4 SEPTEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1035 OF 2001

BETWEEN:	VIET VOC DO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	4 SEPTEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Notice of objection to competency be allowed.

2.The application be dismissed.

3.The applicant pay the respondent’s costs.

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	N 1035 OF 2001

BETWEEN:	VIET VOC DO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	4 SEPTEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT (EX TEMPORE)

1. In this matter the respondent Minister has filed a notice of objection to competency to the jurisdiction of this Court to try the amended application on the ground that the amended application seeks to challenge a decision relating to a visa and these proceedings were commenced more than twenty-eight days after the applicant had been notified of that decision, contrary to s 478(1) of the Migration Act 1958 (Cth).

2. In support of the objection the respondent has tendered an affidavit by Peter Gary Abel sworn 3 September 2001 as to a visit he made to Silverwater Gaol, the purpose of which was to see the applicant, Viet Voc Do, who was being held in custody at that gaol, to inform him that a decision had been made to cancel his visa and to serve him with a copy of the Notice of Cancellation and Decision Record. 

3. Mr Abel annexes to his affidavit a copy of a file note which he made on 13 June 2001 and placed on the Departmental file relating to that visit.  The memorandum is headed:  Re Viet Voc Do.   The word "Do" is emphasised.   The memorandum records what took place on that occasion.  Counsel for the present applicant submits that the memo is not self-explanatory and identifies the interviewee only by a description "A/N".

4. The solicitor for the respondent submits that this is unrealistic because of the heading of the document, which refers precisely to the present applicant.  She submits that the information concerning the applicant which is recorded matches the information which is part of the agreed bundle of relevant documents, which is exhibit A in the proceedings.  However, in order to make the position clear, she sought to lead oral evidence from Mr Abel.  Counsel for the applicant did not consent to that course and indeed opposed it, but he did not point to any prejudice which would be involved in what was proposed, bearing in mind that the leave was limited to elucidation of the abbreviation in the document.  Mr Abel gave evidence that the abbreviation was a reference to “applicant” and that it was a reference to Viet Voc Do. I must therefore read the memorandum as applicable to the applicant and this proves sufficiently that the applicant was notified of the decision in question in relation to his visa on 9 June 2000. 

5. The solicitor for the respondent, in her written submissions, has referred to a line of authority which makes it all too clear that in circumstances such as this the Court simply has no power to extend the time for filing an application, no matter how deserving the application may be.  Counsel for the applicant has been unable to suggest any basis upon which I can distinguish that line of authority.  Under all the circumstances I have no alternative but to uphold the notice of objection and accordingly dismiss the application.  The applicant is to pay the costs of the respondent.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:            2 October 2001

Counsel for the Applicant:	JA Loxton
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 September 2001
Date of Judgment:	4 September 2001