MA v Minister for Immigration

[2007] FMCA 142

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MA v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 142

MIGRATION – Migration Review Tribunal –student visa – time limit – whether Court has jurisdiction to hear application filed out of time – s.477 of the Migration Act – delay due to pending application to the Minister irrelevant.

Migration Act 1958, s.477(1)

Applicant: YI MA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 985 of 2006

Judgment of: McInnis FM

Hearing date: 9 February 2007

Delivered at: Melbourne

Delivered on: 9 February 2007

REPRESENTATION

Applicant: In person (assisted by an interpreter)

Solicitor for the First Respondent: Ms S. Koya

Solicitors for the First Respondent: DLA Phillips Fox

ORDERS

1. The Application filed 3 August 2006 be dismissed for want of jurisdiction.

2. The Applicant shall pay the First Respondent’s costs fixed in the sum of $2,500.00.

3. The Applicant be granted leave to amend the name of the First Respondent by deleting the words “Multicultural Affairs” and inserting in lieu thereof “Citizenship”.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 985 of 2006

YI MA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. In this application filed 3 August 2006, the Applicant had sought review of a decision of the Migration Review Tribunal (the Tribunal) dated 7 February 2006, which had affirmed a decision of a delegate of the First Respondent to cancel a student temporary class TU visa.  The First Respondent, by notice of objection to competency filed 30 August 2006, objects to the jurisdiction of this court and, as I understand it, seeks an order that the application be dismissed.

2. The basis upon which the objection to competency is made arises pursuant to s.477(1) of the Migration Act 1958 (the Act), which provides that an application for review must be lodged with the registry of the court within 28 days of the actual, as opposed to deemed, notification of the decision.  It is further claimed the Applicant was notified of the Tribunal decision by letter dated 7 February 2006.  That letter is an exhibit to the affidavit of Stella Koya sworn 29 August 2006.

3. It appears to be common ground that notification occurred on the date of the letter.  So much is evident from the Applicant's application where 7 February 2006 has been inserted as the date "when notification of the decision was received by the Applicant".  The First Respondent, in the notice of objection to competency, then accurately refers to the fact that the application here was filed on 3 August 2006, which is clearly not within the 28 days of notification as required by

   
   

   sub-s.477(1) of the Act.

4. Whilst it is noted this court has power in certain circumstances to extend the time period by a period of up to 56 days, thereby making a total period of 84 days from the date of notification, it is clear in this case, where the decision was notified on 7 February 2006 and the application filed on 3 August 2006, that the application has been filed well outside the period of 84 days.  Accordingly, I accept that this court, applying the relevant legislation, does not have jurisdiction to hear this application for judicial review.

5. During the course of submissions the Applicant, who is self-represented though appears with the assistance of a qualified interpreter, has brought to the court's attention a reason why he may have delayed in filing the application. Although I have not required the Applicant to provide evidence in relation to the issue he has raised, I am prepared for the present purposes to accept that the Applicant may well have made application to the First Respondent for the First Respondent to exercise a discretion in this matter pursuant to the relevant provisions of the Migration Act.

6. Ms Koya correctly submits, however, that even if an application of that kind was made, then the legislature does not make provision for time to be stayed or further extended pending the outcome of the exercise of the Ministerial discretion.  In my view that submission is correct.  The court does not have, in my view, having regard to the legislation, power to otherwise entertain the application even if I accept that the reason for the delay may be that the Applicant was awaiting the decision of the Minister.

7. In those circumstances, it follows for the reasons given that the application should be dismissed with costs.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date: 9 February 2007