Namgung v Minister for Immigration

[2007] FMCA 821

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAMGUNG v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 821

MIGRATION – Application for judicial review out of time – application for extension out of time – Court prohibited from making an order for extension of time for making an application – no jurisdiction to hear the matter – application dismissed.

Migration Act 1958 (Cth), s.477
Migration Litigation Reform Act 2005, Schedule 1 (Pt 2 Item 42)
Federal Magistrates Rules 2001, r.44.06(2)(a)

Applicant: CHEON NAMGUNG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3594 of 2006

Judgment of: Turner FM

Hearing date: 8 May 2007

Date of Last Submission: 8 May 2007

Delivered at: Sydney

Delivered on: 8 May 2007

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondents: Ms Dale Watson of the Australian Government Solicitor’s office.

ORDERS

1. The application is dismissed pursuant to Rule 44.06(2)(a) of the Federal Magistrates Rules 2001.

2. The applicant is to pay the costs of the first respondent fixed at $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3594 of 2006

CHEON NAMGUNG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The decision of the Migration Review Tribunal (“the Tribunal”) sought to be reviewed in this matter is dated 25 November 2003.

2. The applicant filed his application for review by the Court on 4 December 2006. In his application, the applicant applied for an extension of time to make his application.

3. The proceeding before the Court was therefore commenced by application made after 1 December 2005, in relation to a decision of the Tribunal made before 1 December 2005. Therefore pursuant to Part 2 Item 42 of Schedule 1 to the Migration Litigation Reform Act 2005, the applicant is taken to have been “actually notified” of the decision for the purposes of s.477 of the Migration Act 1958 on 1 December 2005.

4. The applicant stated in his application that he received notification of the decision on 18 December 2003.

5. On 4 December 2006 the applicant sought an extension of time for filing his application to the Court. That application was not made within the 84 days from the date of the actual notification of the decision, being 1 December 2005. No extension of time can therefore be granted under s.477 of the Migration Act.

6. Section 477(1) of the Migration Act provides as follows:

   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.

   An application to this Court for a remedy to be granted in relation to a migration decision must be made within 28 days of the actual notification of the decision. That time can be extended by up to 56 days if application for an extension is made to the Court within 84 days of the actual notification. Otherwise the Court must not make an order allowing an applicant to make an application outside the 28 day period (s.477(3)).

7. Here the application for extension was made on 4 December 2006. That application for an extension of time was made outside the limitations imposed by s.477 of the Migration Act.

8. The first respondent seeks a decision pursuant to Rule 44.06(2)(a) that the Court lacks jurisdiction to hear the matter, and that the application be dismissed on that basis. The Court finds that it does not have jurisdiction to hear the matter and orders that the application is dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate:  Sarah James

Date:  30 May 2007