Haridas v Minister for Immigration and Multicultural Affairs

[1998] FCA 125

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1142  of  1997

BETWEEN:	RAMESHWARY HARIDAS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE(S):		O'CONNOR J
DATE OF ORDER:		16 FEBRUARY 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

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	NG 1142 of 1997

BETWEEN:	RAMESHWARY HARIDAS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE(S):	O'CONNOR J
DATE:	16 FEBRUARY 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

A Notice of Objection to Competency dated 5 February 1998 was filed in this matter, the matter of Rameshwary Haridas and the Minister for Immigration and Multicultural Affairs, by the Respondent who objects to the jurisdiction of this Court to try this application for an order for review under the Migration Act 1958 (Cth) (the “Migration Act”).  The grounds of the Notice is that the application has not been lodged with the Registry of the Federal Court within 28 days of the applicant being notified of the decision of the Tribunal.  That Tribunal is the Refugee Review Tribunal.

Section 478 of the Migration Act provides that:

“478.  (1)  An application under section 476 or 477 must:
           ...

(b)be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.”

The applicant today agreed that she had lodged the application later than 28 days from the date of notification.  That is clear from the document which was filed in this Court on 24 December 1997 because the document says that the applicant was notified of the decision on 12 June 1997.

The applicant has through her interpreter asked me to be sympathetic and to take into account the fear she has of being deported to her country of birth.

Section 478 (2) says that:

“(2)  The Federal Court must not make an order allowing, or which as the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b).”

The Court therefore has no power to make an order disregarding this section.  As there is no power to extend the time for filing an application in ths matter beyond the 28 days provided in subsection 478(1), the Court upholds the Respondent’s Objection to Competency and the application for an order of review in this matter is dismissed.

The application also seeks an order that the applicant pay the costs of this proceeding.  I do not propose in this matter to make that order.

I certify that this and the preceding one (1) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor

Associate:

Dated:             16 February 1998

Applicant (unrepresented)	R Haridas
Solicitor for the Respondent:	H Dejean
Date of Hearing:	16 February 1998
Date of Judgment:	16 February 1998