Nam v Minister for Immigration

[2007] FMCA 1219

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAM v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1219

MIGRATION – Decision in Bodruddaza does not mean that s.477 of the Migration Act is invalid – the time limit imposed in s.477 is absolute.

Migration Act 1958 (Cth), ss.477, 486A

Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14
SZJYV v Minister for Immigration and Citizenship [2007] FCA 731
SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39
Fisher v Minister for Immigration and Citizenship [2007] FCA 591

Applicant: KWUN NAM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: SYG 1512 of 2007

Judgment of: Turner FM

Hearing date: 4 July 2007

Date of last submission: 4 July 2007

Delivered at: Sydney

Delivered on: 4 July 2007

REPRESENTATION

Counsel for the Applicant: Mr. Young

Solicitor for the Applicant: Mr S. Kim of Bilias & Associates

Counsel for the Respondents: Mr A. Markus of Australian Government Solicitor

ORDERS

1. The application and amended application are dismissed.

2. The applicant is to pay the costs of the first respondent fixed in the amount of $2000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1512 of 2007

KWUN NAM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The application in this matter was filed on 14 May 2007. The application states that notification of the decision was received on

   
   

   25 September 2006.

2. The applicant seeks a declaration that by reason of the decision of the High Court in Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14, s.477 of the Migration Act 1958 (Cth) (“the Act”) is invalid.

3. In Bodruddaza the High Court held that s.486A of the Migration Act is invalid. The decision in Bodruddaza was considered by Justice Downes on 16 May 2007 in SZJYV v Minister for Immigration and Citizenship [2007] FCA 731 at [5]:

   I note that in the recent decision of Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14, the High Court declared s.486A of the Migration Act invalid. Section 486A purports to impose time limits on the High Court’s jurisdiction to entertain applications for review in much the same way as s.477 applies to the Federal Magistrates Court. The High Court declared s.486A invalid on the basis that it impermissibly limits the right of applicants to seek relief, in the form of constitutional writs, under s.75(v) of the Constitution. In my opinion, this decision does not bring the validity of s.477 into doubt. The Federal Magistrates Court obtains its jurisdiction from statute rather than the Constitution. If the legislature wishes to confine that jurisdiction it is entitled to do so (see SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39 at [45]-[47] and Fisher v Minister for Immigration and Citizenship [2007] FCA 591 at [43]).

   The ratio of that case is that the time limit imposed in s.477 is absolute and the decision in Bodruddaza v The Minister for Immigration & Multicultural Affairs does not bring the validity of s.477 into doubt. The Court is bound to apply that ratio. Even if those statements are considered obiter dicta the Court finds the decision persuasive and applies it.

4. Section 477 of the Migration Act 1958 (Cth) is valid according to the law at present.

5. The application to this Court was not made within 28 days of

   
   

   25 September 2006. No notification or application for an extension of time has been made (it must be made within 84 days of actual notification: s.477(2)(a)).

6. In any event, the 28 day period can only be extended by up to 56 days (28 plus 56 = 84 days). Those 84 days passed well before the application was lodged.

7. By s.477(3), this Court must not make an order (except as provided in sub-s.2) allowing an applicant to make an application mentioned in sub-s.1 outside the 28 day period.

8. Section 477(2) provides for an extension of up to 56 days if:

   a)an application for that order is made within 84 days of the actual 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.

9. Here sub-s.(b) need not be considered as sub-s.(a) was not complied with. No valid application for an extension of time has been made.

10. No extension of time has been granted. The application was not filed in accordance with s.477. The application is invalid. It is dismissed.

11. An amended application was filed on 8 June 2007. It seeks to amend an invalid application. The amended application is invalid and is dismissed.

12. Accordingly, the application and amended application are dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Turner FM

Acting Associate: Mary Giang

Date: 26 July 2007