Hanif v Minister for Immigration
[2006] FMCA 1027
•11 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HANIF v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1027 |
| MIGRATION – Subclass 832 (Close Ties) visa – application filed out of time – no jurisdiction to hear the application – application dismissed. |
| Migration Act 1958, ss.417, 476, 477, 477(1) Migration Litigation Reform Act 2005, Sch.1 cl42(1) Federal Magistrate Court Rules 2001, rr.13.10(b), 13.10(c) |
| Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 |
| Applicant: | SHEIKH MOHAMMED HANIF |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1559 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 11 July 2006 |
| Date of Last Submission: | 11 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 11 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms. N. Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $1,750.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1559 of 2006
| SHEIKH MOHAMMED HANIF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
I have before me an application filed in this Court on 31 May 2006 seeking an order that the respondent show cause why the remedies sought by the applicant (which essentially are based on seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 24 August 2005 to affirm the decision of the delegate of the respondent Minister made on 9 February 2005 to refuse a Subclass 832 (Close Ties) visa to the applicant) should not be granted in the exercise of the Court’s jurisdiction pursuant to s.476 of the Migration Act 1958 (“the Act”).
The respondent Minister in these proceedings has filed the affidavit of Nicola Johnson, a solicitor in the employ of the respondent’s solicitors, sworn on 25 June 2006, in support of the response that the proceedings be dismissed given that this Court lacks jurisdiction to review the decision of the Tribunal as s.477(1) of the Act applies. This affidavit also annexes (marked as annexure “A”) a letter dated 23 September 2005, written by the applicant’s then solicitor, requesting the first respondent Minister intervene pursuant to s.417 of the Act to provide a more favourable outcome to the applicant.
Amendments to the Act made by the Migration Litigation Reform Act 2005 (Cth) (“the reform Act”), provide time limits to be applied to the filing of applications before this Court. Section s.477 of the Act provides:
“477 Time limits on applications to the Federal Magistrates Court
(1)An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.
(2)The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
(a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
(b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3)Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.
(4)The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.”
The applicant’s application, filed on 31 May 2006, states that the applicant received actual notification of the decision on 24 August 2005. The letter from the applicant’s then solicitor (dated 23 September 2005) at Annexure “A” to the affidavit of Nicola Johnson confirms that at least as at 23 September 2005 the applicant had notice of the Tribunal’s decision. The original application asserts four grounds of review. In an affidavit (and it is not apparent on its face whether it was sworn or affirmed) made on 31 May 2006 by the applicant and filed in this Court on 31 May 2006, the applicant states:
“I am making this that I do not agree with the decision of the MRT because
1. I believe that the MRT denied me substantial justice and failed to take into account all relevant information I provided. I also believe that the tribunal wrongly interpreted the law in question and thus applied it incorrectly.”
Before me today the applicant was unrepresented and appeared with the assistance of an interpreter in the Hindi language. Ms. Johnson appeared for the respondent. The applicant, in oral submissions to the Court, simply stated the reason for his application, that there is nothing to go back to if he returns to Fiji.
There is nothing before me to show that the applicant had any other decision from the Tribunal. The applicant’s originating application to this Court filed on 31 May 2006 clearly states that the applicant was notified of the Tribunal’s decision on 24 August 2005. The letter of 23 September 2005 confirms that notification had been received by the applicant at least as at that date.
I note here that, irrespective of that actual notice (in 2005), Sch.1 cl.42(a) of the reform Act provides transitional provisions for decisions made before the commencement day of the Act (1 December 2005) in the following terms:
“Where proceedings are commenced on or after the commencement day in relation to a migration decision made before the commencement day, and actual notification of the decision is given before the commencement day:
(a)section 477 of the Migration Act 1958 applies as if the actual notification of the decision took place on the commencement day; and
(b)section 477A of that Act applies as if the actual notification of the decision took place on the commencement day; and
(c)section 486A of that Act applies as if the actual notification of the decision took place on the commencement day.”
The reform Act commenced operation on 1 December 2005 and, as such, actual notification of the decision (as it was made prior to that day) is taken to have occurred on that day. In these circumstances, if an application is filed later than 28 days after 1 December 2005 and no extension of time is given extending that 28 day period by up to 56 days pursuant to s.477(2) (until up to 24 February 2006) then the application is incompetent before this Court. I note here that the application was filed on 31 May 2006, after the maximum grace period allowable under the transitional provisions.
In a document filed on 6 July 2006 the applicant asserts with reference to Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 that the Court does have jurisdiction to determine whether the Tribunal’s decision is a privative clause decision or not. The applicant seeks the opportunity to amend his application to allow this review to take place. The applicant was unable to show however how any such amended application could assist him in light of the recent amendments in the Act.
In these circumstances, I dismiss the application on the basis that the Court has no jurisdiction to proceed. Even if the applicant before me today argued for an extension of time within which to file his application, the Court’s discretion would extend only to provide an extension until 24 February 2006. The application was clearly filed after that date.
As I have indicated, for reasons of want of jurisdiction, the application is dismissed.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate:
Date: 11 July 2006
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