NAQU v Minister for Immigration

[2006] FMCA 515

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAQU v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 515

MIGRATION – RRT decision – application for judicial review filed out of time – date of actual notification not disputed – application dismissed at first court date.

Federal Magistrates Court Rules 2001, rr.10.01(2), 44.05, 44.11, 44.12
Migration Act 1958 (Cth), ss.476, 476(1), 477, 477(2), 477(3)
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.42(a)

NAQU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1419

Applicant: NAQU

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG693 of 2006

Judgment of: Smith FM

Hearing date: 4 April 2006

Delivered at: Sydney

Delivered on: 4 April 2006

REPRESENTATION

Counsel for the Applicant: The applicant in person

Counsel for the First Respondent: Ms Z Brauer

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed as incompetent. 

2. The applicant must pay the first respondent’s costs in the sum of $400. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG693 of 2006

NAQU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant in this matter has filed on 7 March 2006 an application under Rule 44.05 of the Federal Magistrates Court Rules 2001, seeking to invoke the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to a decision which the application identifies as a decision of the Refugee Review Tribunal (“the Tribunal”) dated 3 April 2003.  His affidavit attaches a copy of that decision, which shows the date of the decision as 11 March 2003 and the date of its handing down as 3 April 2003. 

2. The application states that the applicant received notification of the decision on 7 April 2003.  The applicant today agreed that he did receive actual notification of the decision in 2003, and there can be no doubt about this because, as he also reveals in his application, in the same year he brought proceedings for judicial review of the Tribunal’s decision in the Federal Court of Australia.  That application was dismissed by Moore J on 5 December 2003 (see NAQU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1419).

3. Under amendments to the Migration Act made by the Migration Litigation Reform Act 2005 (Cth) (“the amending Act”), the Court’s jurisdiction is now subject to a strict time limit under s.477. This provides that an application to the Court must be brought “within 28 days of the actual (as opposed to deemed) notification of the decision”. Under subsection (2) the Court may extend the 28 day period by up to 56 days, if an application for extension of time is made within 84 days of the actual notification of the decision. Section 477(3) provides:

   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. In relation to applications under s.476(1) concerning decisions made before its commencement on 1 December 2005, Sch.1 cl.42(a) of the amending Act provides that s.477 applies “as if the actual notification of the decision took place on the commencement day” if “actual notification of the decision is given before the commencement day”.  This means that applications in relation to decisions published before 1 December 2005 are incompetent if they are filed in the Court on and after Friday, 24 February 2006, if the Court can be satisfied that actual notification of the decision occurred prior to 1 December 2005. 

5. In my opinion it is clear from these provisions that the present application is incompetent on facts which are not disputed by the applicant and are incontrovertible.  The decision sought to be reviewed was actually received by the applicant prior to 1 December 2005, and he has filed his application to this Court after the expiry of the period of grace allowed under the transitional provision. 

6. Notwithstanding the absence of jurisdiction on the face of the application, it was received by the Registry and given a listing for a first court date today. Under Federal Magistrates Court Rule 10.01(2) the Court has power to hear or determine all or part of the proceeding on a final basis at the first court date. That power is available in relation to applications under s.476 (see the opening words of Rule 44.11).

7. I consider it is appropriate in the present case, given the plain absence of jurisdiction, that I should today dismiss the application as incompetent.  I can see no purpose in allowing further adjournments in the matter.  This would incur unnecessary additional costs to the applicant, Minister and to the Court, including the costs of arranging for the attendance of an interpreter.  The applicant’s only response to my pointing out the absence of jurisdiction was to complain that he would have brought his application earlier if he had known about the changes to law.  However, that argument does not allow me to assume jurisdiction in the matter. 

8. Moreover, I note that, had the matter proceeded, it is likely that I would have dismissed it under rule 44.12, on the basis that the application does not raise an arguable case for the relief claimed.  It is clear to me from Moore J’s judgment that his Honour addressed the question of whether the Tribunal decision was affected by jurisdictional error, and has made a determination which is final and binding on the applicant that it was not.  His application therefore appears doomed to failure on the basis of estoppel and abuse of process. 

9. For the above reasons, I dismiss the application. 

10. I think it is appropriate to order costs. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  18 April 2006