Huynh v Minister for Immigration

[2011] FMCA 404

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HUYNH v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 404

MIGRATION – Application for review of decision of Administrative Appeals Tribunal – summary dismissal – application for summary dismissal for want of jurisdiction – application not competent.

JURISDICTION – Where Federal Magistrates Court has no jurisdiction – where Federal Court has jurisdiction – where transfer to Federal Court futile – application out of time – adjournment refused.

Federal Magistrates Act 1999 (Cth), ss.17A, 39
Migration Act 1958 (Cth), ss.476, 476A, 477, 477A, 500, 501
Federal Magistrates Court Rules 2001, r.13.10

Applicant: HOAI HAN HUYNH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 843 of 2011

Judgment of: Scarlett FM

Hearing date: 30 May 2011

Date of Last Submission: 30 May 2011

Delivered at: Sydney

Delivered on: 30 May 2011

REPRESENTATION

Solicitors for the Applicant: No solicitor on the record

Solicitors for the first Respondent: DLA Piper

Solicitors for the second Respondent: DLA Piper

ORDERS

1. The Application for adjournment is refused.

2. The Application is dismissed.

3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $1,175.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 843 of 2011

HOAI HAN HUYNH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNALS

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Administrative Appeals Tribunal. The Tribunal made its decision on 25^th October 2010, affirming a decision by the Minister for Immigration and Citizenship on the ground that he did not pass the character test under s.501 of the Migration Act 1958.  

2. The Court has no jurisdiction to hear the application. For that reason, the Minister seeks an order for summary dismissal of the application under Rule 13.10 of the Federal Magistrates Court Rules 2001.

3. The Applicant has sought an adjournment today to allow for his appeal to the Legal Aid Review Committee to be determined. The adjournment is opposed by the Minister on the ground that it would be futile. This Court has no jurisdiction to hear the substantive application. If the applicant has a remedy in another Court, then he should pursue the remedy in that Court.  

4. The jurisdiction of this Court in migration matters can be found in section 476 of the Migration Act.  Subsection 476(2)(b)  specifically provides that:

   The Federal Magistrates Court has no jurisdiction in relation to the following decisions:

   (b)a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500.

5. The Federal Court has original jurisdiction to hear an application for review of a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal under section 500 of the Act (see s.476A(1)(b)).

6. Clearly, the Applicant has brought his application in the wrong court.

7. The Federal Magistrates Court has the power to transfer a proceeding to the Federal Court, under s.39 of the Federal Magistrates Act 1999.

8. In this case, however, transfer to the Federal Court would not assist the Applicant, as his application is out of time. The AAT decision is dated 25^th October 2010. A copy of that decision was forwarded to the Applicant under cover of a letter of that same date, advising him:

   If you think the decision is wrong, you have the right to apply to the Federal Court for review of the decision. Please note that the review is limited to certain legal errors, and does not apply to errors of fact. The Federal Court will decide if the Tribunal has made a relevant error in reaching its decision. If you are considering an appeal, you may wish to obtain legal advice.

   An application to the Federal Court must be lodged no later than 35 days after the date of the Tribunal’s decision. The court may be able to extend the time in limited circumstances.[1]

   [1] A copy of the AAT decision and a copy of the covering letter were attached to the applicant’s affidavit in support.

9. Section 477A prescribes a time limit of 35 days from the date of the decision for an application to the Federal Court for a remedy in the exercise of the Federal Court’s jurisdiction under s.476A of the Act. A similar time limit is provided by s.477 for applications to the Federal Magistrates Court.

10. The Applicant was required to file his application with the Federal Court by 29^th November 2010. He did not do so. His application was filed at this Court on 2^nd May 2011.

11. The Applicant has not made any application in writing specifying why it is necessary in the interests of the administration of justice to make an order extending the 35 day period.

12. The application is not competent, as it has been filed out of time in a Court that has no jurisdiction to hear it. Even if it were transferred to the Federal Court, it would still be out of time.

Summary Dismissal of an Application

1. Subsection 17A(2) of the Federal Magistrates Act provides that:

   (2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

   (a) the first party is defending the proceeding or that part of the proceeding; and

   (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

2. Rule 13.10 of the Federal Magistrates Court Rules 2001 provides in subrule 13.10(a) that:

   The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

   (a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim for relief; …  

3. The Applicant has no reasonable prospect, or indeed, any prospect at all, of successfully prosecuting his application in either this Court or in the Federal Court.

4. The application will be dismissed with costs.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date:  30 May 2011