NABO v Minister for Immigration and Multicultural and Indigenous Affairs

FEDERAL COURT OF AUSTRALIA
NABO v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 707
APPLICANT NABO of 2002 v MINISTER FOR IMMIGRATION
& MULTICULTURAL & INDIGENOUS AFFAIRS
N 62 of 2002
WHITLAM J
21 MAY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 62 of 2002

BETWEEN:

APPLICANT NABO OF 2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

WHITLAM J

DATE OF ORDER:

21 MAY 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The respondent’s objection to competency is upheld.

2.The application is dismissed.

3.The applicant is to pay the respondent’s costs.

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

N 62 of 2002

BETWEEN:

APPLICANT NABO OF 2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

WHITLAM J

DATE:

21 MAY 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT

On 29 January 2002 the applicant filed what purported to be an application for an order of review in respect of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister refusing to grant the applicant a protection visa. The Tribunal’s decision was handed down on 19 December 2001.
The Minister objected to the competency of the proceeding as the decision which the applicant sought to make the subject of the purported application was a privative clause decision under s 474 of the Migration Act 1958 (“the Act”). It was therefore not subject to judicial review in this Court.
Counsel for the Minister accepted that an application could be made to the Court under s 39B of the Judiciary Act 1903. However no such application was before the Court. Even had there been an application to amend the proceeding in order to bring an application under s 39B, an objection would have been pursued because such a proceeding would be out of time and contrary to the requirements of s 477 of the Act.
Although the applicant wished to communicate with the Court through a Georgian interpreter, it was not possible to get a Georgian interpreter for the hearing. However, I am satisfied that the applicant understood sufficiently the proceedings with the assistance of a Russian interpreter. It appears from an examination of the papers in the so-called "green book" that the application for a protection visa was prosecuted with the assistance of Russian interpreters, not Georgian interpreters. Furthermore, the fundamental point on which the application was dismissed was a simple one relating to its timing.
Accordingly the objection to competency is upheld and the application is dismissed with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:
Dated: 3 June 2002
The applicant appeared in person.

Counsel for the respondent:

S B Lloyd

Solicitors for the respondent:

Sparke Helmore

Date of hearing:

21 May 2002

Date of judgment:

21 May 2002

CaseChat Overview and Summary

The matter before the court involved an application for review of a decision made by the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, to refuse the applicant's application for a visa. The applicant, who was not a citizen of Australia, sought to challenge the decision on the basis of alleged errors in the decision-making process. The application was brought in the Federal Court of Australia.

The court was required to determine whether the application for judicial review was competent to be heard in the Federal Court. The respondent argued that the application was incompetent because it was not made within the requisite time period and because the applicant had not previously applied for internal review of the decision. The applicant, on the other hand, argued that the application was competent because the respondent had provided new information to the applicant after the time for internal review had expired, which should have triggered a new period for making an application for judicial review.

The court held that the application was indeed incompetent because it was not made within the requisite time period. The court found that the applicant had been aware of the decision and the reasons for it at the time that internal review was available, and that the new information provided by the respondent did not trigger a new period for making an application for judicial review. The court held that the application was therefore out of time, and that the application must be dismissed. The applicant was ordered to pay the respondent's costs.

Orders of the court

1. The respondent’s objection to competency is upheld.

2. The application is dismissed.

3. The applicant is to pay the respondent’s costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 62 of 2002

BETWEEN:	APPLICANT NABO OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	21 MAY 2002
WHERE MADE:	SYDNEY

JUDGE:	WHITLAM J
DATE:	21 MAY 2002
PLACE:	SYDNEY

Counsel for the respondent:	S B Lloyd
Solicitors for the respondent:	Sparke Helmore
Date of hearing:	21 May 2002
Date of judgment:	21 May 2002