NAJP of 2002 v Minister for Immigration
[2006] FMCA 1067
•24 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAJP OF 2002 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1067 |
| MIGRATION – Refugee – application filed out of time – no jurisdiction to hear the application – application dismissed. |
| Migration Act 1958, ss.476, 477, 477(2), 477(2)(a) Migration Litigation Reform Act 2005, Sch.1 cl42(a) |
| NAJP v Minister for Immigration [2002] FMCA 216 |
| Applicant: | APPLICANT NAJP OF 2002 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 741 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 24 July 2006 |
| Date of Last Submission: | 16 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms. S. Hanstein |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 13 March 2006 is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 741 of 2006
| APPLICANT NAJP OF 2002 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised)
I have before me an application filed in this Court on 13 March 2006 seeking an order that the respondent show cause why the remedies sought by the applicant (which essentially are based on seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 8 April 2002 to affirm the decision of the delegate of the respondent Minister made 16 November 1999 to refuse a protection visa to the applicant) should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (“the Act”).
The respondent Minister’s response is that the application be dismissed for want of jurisdiction, or in the alternative that the applicant has raised no arguable case, or that the proceedings are vexatious, or an abuse of the process of the Court.
At the hearing before me today the applicant, who was unrepresented, appeared with the assistance of an interpreter in the Bengali language. Ms. Hanstein appeared for the respondent Minister. The applicant commenced the proceedings today by requesting an adjournment and referred to his Notice of Motion filed on 7 July 2006 that indicated:
1)That he will engage a solicitor and that although he had not had the funds to do so in the past, an “Australian community group” has come forward to help raise funds during October to November 2006.
2)That his case is “arguable and winnable”.
3)That he will bring a witness and “documents that favour” his case.
4)That the application was made “within due time”.
For the reasons below, I refused the applicant’s request for an adjournment. In my view, the Court does not have jurisdiction to hear the matter, and as such to allow an adjournment now would be a futile exercise.
Before turning to the application for summary dismissal there is the question of the Court’s jurisdiction to hear the applicant’s application. Amendments to the Act, made by the Migration Litigation Reform Act 2005 (Cth) (“the reform Act”), provide time limits to be applied to the filing of applications before this Court. Section 477 of the Act provides:
“Time limits on applications to the Federal Magistrates Court
(1)An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.
(2)The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
(a)an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
(b)the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3)Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.
(4)The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.”
The applicant’s application, filed on 13 March 2006, states that the applicant received actual notification of the decision, which is said to be the subject of review now, on 20 April 2002. In an affidavit (and it is not apparent on its face whether it was sworn or affirmed) made on
9 March 2006 by the applicant, and filed in this Court with the application on 13 March 2006 (attaching a copy of the Tribunal’s decision) the applicant says:“1. A breach of the rules of natural justice occurred in connection with the making of the decision. The decision was not notified to the applicant and therefore, the procedures that were required by law to be observed in connection with the making of the decision were not observed.
2. I am not represent by any solicitor. I’ve arguable case. I’ve been living now long time with difficulties. I can’t go back to my country. I hope that this time I will get justice.”
I have before me the affidavit of Sharon Elisabeth Hanstein, a solicitor in the employ of the respondent’s solicitors, sworn on 4 May 2006, that was read into evidence before me today. Annexure “B” to that affidavit is a copy of an application, filed on 27 May 2002 in the Federal Court of Australia, for review of the Tribunal decision dated 8 April 2002 (the decision that is now again the subject of review). The matter was remitted by the Order of Stone J. to the Federal Magistrates Court (annexure “C”). Annexure “D” is a copy of the subsequent reasons and Judgment of Driver FM, dismissing the application on 19 September 2002 (NAJP v Minister for Immigration [2002] FMCA 216). Annexure “E” is a copy of the Judgment of Sackville J. who dismissed the applicant’s subsequent appeal on 25 November 2002. The applicant then sought special leave to appeal to the High Court of Australia. This was refused on 14 November 2003 (annexure “F”). The filing of the application in the Federal Court on 27 May 2002 is clearly confirmation that actual notification of the Tribunal’s decision of
8 April 2002 was effected at least at some time prior to 27 May 2002.I note that, irrespective of that actual notice in 2002, Sch.1 cl.42(a) to the reform Act, provides for transitional provisions to apply to decisions made before the commencement day of the reform Act (1 December 2005) in the following terms:
“Where proceedings are commenced on or after the commencement day in relation to a migration decision made before the commencement day, and actual notification of the decision is given before the commencement day:
(a)section 477 of the Migration Act 1958 applies as if the actual notification of the decision took place on the commencement day; and
(b)section 477A of that Act applies as if the actual notification of the decision took place on the commencement day; and
(c)section 486A of that Act applies as if the actual notification of the decision took place on the commencement day.”
The reform Act commenced operation on 1 December 2005 and, as such, actual notification of the decision (as it was made prior to that day) is taken to have occurred on that day. In these circumstances, if an application is filed later than 28 days after 1 December 2005 (28 December 2006), and no extension of time is given
extending that 28 day period by up to 56 days pursuant to s.477(2) (until up to
24 February 2006), the application is incompetent before this Court. I note here that the application was filed on 13 March 2006, after the maximum “grace” period allowable under the transitional provisions. In this regard, the applicant’s request in his application to the Court for a extension of time was not made within 84 days of the (deemed) actual notification of the Tribunal’s decision as required by s.477(2)(a) and is therefore refused.
Before me the applicant’s approach was to seek an adjournment to obtain the services of a solicitor and that “this time” with “documents that favour him” his chances of success would improve before the Court. The applicant was clearly aggrieved with the outcome of the earlier protracted litigation. But he was unable to put anything to the Court now to show that the Court had jurisdiction to proceed with his latest application.
In these circumstances, I dismiss the application on the basis that the Court has no jurisdiction to proceed. Even if the applicant had appeared today to argue for an extension of time within which to file his application, the Court’s discretion would extend only to provide an extension until 24 February 2006. The application was clearly filed after that date.
I also note for the applicant’s benefit that had there been no issue of jurisdiction I would have dismissed the application summarily, as sought by the respondent, as the proceedings are in my view an abuse of process and vexatious. The affidavit of Sharon Elizabeth Hanstein, sworn 4 May 2006, shows clearly the protracted and extensive litigation that has surrounded this same Tribunal decision. The affidavit reveals the applicant has previously pursued review of the Tribunal decision unsuccessfully before the Federal Magistrates Court (annexures “B” and “C” and “D”) the Federal Court of Australia (annexure “E”), the High Court of Australia (annexure “F”), before finally filing in this Court again, initiating ultimately the proceedings before the Court today. Further, that such action was taken with the knowledge of the time limit that now applies.
As I have indicated, for reason of want of jurisdiction, the application is dismissed. The respondent also pressed that an order be made preventing the applicant from filing a further application relating to his protection visa application, including, but not limited to, the decision of the delegate of the first respondent dated 16 November 1999, and the decision of the second respondent dated 8 April 2002. In all the circumstances, particularly given the extensive litigation history, this is appropriate, and accordingly I make the order as sought by the respondent.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 2 August 2006
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