M65 of 2004 v Minister for Immigration
[2005] FMCA 1061
•13 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M65 OF 2004 v MINISTER FOR IMMIGRATION | [2005] FMCA 1061 |
| MIGRATION – Review of Refugee Review Tribunal decision – application out of time. |
| Migration Act 1958 (Cth), ss.411, 412 |
| Re Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491 |
| Applicant: | APPLICANT M65 OF 2004 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 9 of 2005 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 13 July 2005 |
| Date of Last Submission: | N/A |
| Delivered at: | Melbourne |
| Delivered on: | 13 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant M65/2004 appeared on her own behalf |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms J.K. Macdonnell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application for an order nisi be dismissed.
That the applicant pay the respondent’s costs fixed in the sum of $4817.38.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 9 of 2005
| APPLICANT M65 OF 2004 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In the case of Applicant M65 of 2004 the applicant is the daughter of the applicants in the matter of Applicant M67 of 2004. The applicant M65 did not arrive in Australia until 6 January 1997. She arrived on a visitor visa on 6 May 1997. She sought a protection visa and included her parents as part of her family unit.
A delegate refused to grant the applicant a protection visa on 22 January 1998. On 2 March 1998 the Refugee Review Tribunal received an application for review of the delegate's decision. However, this was outside of the 28-day time limit provided for under the Act. The RRT nonetheless invited submissions on this issue on 17 September 1998 which were received on 30 September. The RRT decided that it did not have jurisdiction on 9 October and notified the applicant on 14 October 1998.
It was not until 2 April 2004 that the applicant commenced proceedings in the High Court seeking judicial review. Those proceedings were subsequently remitted to this court for hearing.
There is no question that the decision of the delegate was a decision reviewable by the RRT within the meaning of section 411 of the Act. The RRT concluded that it could only have jurisdiction to review a decision if an application was made within the 28-day time limit provided for in section 412(1)(b) of the Act as it is calculated in accordance with the Migration Regulations. The Act contains no provisions for an extension of time.
Pursuant to Regulation 4.31, an application sent to the RRT by post or electronic facsimile transmission is not taken to have been lodged until it is received at the RRT registry. The circumstances that must be considered in determining the commencement of the 28-day period are set out in section 53 and Regulation 5.03. In substance these provisions mean that the 28‑day period commences seven days after the date of sending the notification with respect to the delegate's decision.
The material shows that the department sent the notification by certified mail to the applicant's adviser on 22 January 1998 and therefore the applicant would be taken to have received the notification by 29 January. The 28-day period, therefore, ended on 26 February 1998. The applicant says that she completed her review application before 26 February and forwarded it to her legal adviser. It was not received by the RRT until 2 March 1998, many days after the time limit had expired. It also appears that the application was first received by the Banking Industry Ombudsman on 26 February and forwarded on to the RRT. However, Regulation 4.31 means that the application is not lodged until it is received at a registry of the RRT.
Whilst it does seem that there was some confusion between the time when the applicant forwarded her application back to her adviser and it being received at the RRT, the Act does not provide for any discretion in this matter. There simply was not a valid application as a result of section 412 of the Act. As a result, it cannot be questioned that the RRT's decision that they did not have jurisdiction in the matter was correct.
In these circumstances, it does not appear that the applicant has any prospects of success in her application.
Her application, like that of M67, is also out of time under the High Court rules, by a number of years. In the circumstances, I am not satisfied that such a lengthy delay should be the subject of an extension of time when it appears that on the substantive question the applicant cannot succeed in any event. The period of delay of itself, however, would be sufficient in a case such as this to mean that an extension ought not to be granted: see Re Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491.
In the circumstances I therefore refuse the application for an extension of time and dismiss the application for an order nisi.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate:
Date:
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