Lee v Minister for Immigration
[2006] FMCA 1399
•13 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEE v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1399 |
| MIGRATION – Application for review of Migration Review Tribunal – refusal of an Educational (Temporary) (Class TH) visa – application for an extension of time – 18 month delay – new application dismissed as incompetent. |
| Federal Magistrates Court Rules 2001 (Cth), rr. 10.01, 13.10, 44.11, 44.12 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.476, 477 Migration Litigation Reform Act 2005 (Cth) |
| Applicant: | YUN HAK LEE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG1987 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 13 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 September 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the aid of a Korean interpreter |
| Advocate for the Respondents: | Ms A Alex |
| Solicitors for the Respondents: | Phillips Fox Solicitors |
ORDERS
The application filed on 18 July 2006 is incompetent and is dismissed.
The applicant is to pay the first respondent’s costs and disbursements, fixed in the sum of $1,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1987 of 2006
| YUN HAK LEE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an ex tempore judgment which has been edited and revised from the transcript. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Sydney Registry of the Federal Magistrates Court on 18 July 2006 for judicial review of the decision of the Migration Review Tribunal (“the Tribunal”). The Tribunal decision was made on 17 December 2004, affirming the decision of a delegate of the first respondent made on
22 April 2004 refusing to grant the applicant an Educational (Temporary) (Class TH) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal, file number N04/02933.The applicant filed an affidavit sworn on 17 July 2006 in support of his application.
The application seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”). The applicant sets out three grounds of review:
1.Migration Review Tribunal did not include Mr Sing Hak Lee as a secondary applicant in its processing of my application.
2.The Tribunal made its decision without the secondary applicant, therefore its decision is void and null.
3.MRT did not rectify their error even though DIMIA informed that MRT should include the secondary applicant into its record and decision.
The Tribunal decision was handed down on 17 December 2004. In the application to this Court under the heading “Date when notification of the decision was received by the applicant”, the applicant completed “27 December 2004”. That application is signed by the applicant and dated 18 July 2006.
Under r.10.01(2) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), the Court has the power to hear and determine all or part of the proceedings on a final basis at the first Court date. The applicant first appeared before this Court on 30 August 2006. On that date, the applicant was advised that the application was out of time and the Court did not have jurisdiction to hear the matter. However, the applicant was granted a two week adjournment in which to seek legal advice if he sought to make any submissions regarding the delay, or file any affidavit material explaining the delay. This application has been filed since the introduction of the Migration Litigation Reform Act 2005 (Cth), which repealed the Court’s previous broader jurisdiction under s.483A of the Act and introduced a new s.476. At the same time, the amendments introduced r.44.11(a) to the Rules, where the Court may dismiss an application at the first Court date on an interlocutory basis with specific reference to r.44.12, which states:
(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application; or
(b) …
(c) …
(2)To avoid doubt, a dismissal under paragraph 1(a) is interlocutory.
The significant problem facing the applicant is in relation to the time limit, as these proceedings were filed under the Act as altered by the Migration Litigation Reform Act and so places this application within the operations of the amended s.476. This means that the time limit under s.477(1) of the Act applies and an application “must be made to the Court within 28 days of the actual (as opposed to the deemed) notification of the decision”. The Court has power under s.477(2) “to extend that 28 day period up to 56 days” if an application for an extension of time is made within 84 days of the actual notification of the decision, and the Court is “is satisfied that it is in the interests of the administration of justice to do so.”
The application seeks an extension of time. I believe that even if the applicant had been properly informed in the preparation of his application, he would not benefit from an extension of the transitional time limit. The decision of the Tribunal was made prior to the introduction of the amendments to the Act conferred by the Migration Litigation Reform Act, which commenced on 1 December 2005. The transitional period with extension expired 84 days from the commencement date of the amended provisions, on Thursday
23 February 2006. This application was not filed until 18 July 2006, which is well outside the operation of the transitional provisions and is clearly incompetent.
I note that no affidavit explaining the delay has been filed.
Consequently, the application filed on 18 July 2006 must be dismissed on the ground that it out of time and is also incompetent.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 27 September 2006
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