NAVH v Minister for Immigration
[2006] FMCA 1704
•31 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAVH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1704 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – adjournment application – objection to competency – application out of time. |
| Migration Act 1958, ss.477, 486D Migration Litigation Reform Act 2005 |
| NAVH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1558 Scott v Handley (1999) 58 ALD 373 Titan v Babic (1994) 49 FCR 546 |
| Applicant: | NAVH |
| First Respondent: | MINSTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2401 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 31 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2006 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application for an adjournment is refused.
The application filed on 29 August 2006 is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $1,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2401 of 2006
| NAVH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
By application filed in this Court on 29 August 2006 the applicant seeks review of a decision of the Refugee Review Tribunal of 30 June 2003 affirming a decision of a delegate of the first respondent not to grant him a protection visa.
At the start of the hearing the applicant handed up an unfiled copy of an application and affidavit seeking an adjournment of the hearing of the notice of objection to competency that had been listed for hearing today. The applicant sought more time, at least until January 2007, on the basis that he had been in the detention centre and was depressed and wanted more time to seek legal advice. No evidence was provided in support of these claims although the applicant told the Court that he had contacted a Legal Aid lawyer who said that he needed time to look at documents. I am also told from the bar table by the solicitor for the first respondent that the applicant had sought a later date at the directions hearing.
However, I am not persuaded that it is in the interests of justice between the parties and in all the circumstances that I grant the adjournment sought by the applicant. In relation to the suggestion that an adjournment is needed in order for the applicant to obtain legal advice, I note that the applicant is unrepresented (see Titan v Babic (1994) 49 FCR 546 at 554 – 555) but also that the Tribunal decision of which review is sought in these proceedings is a decision that was made on 30 June 2003. Had the applicant wished to obtain legal advice he has had ample opportunity to do so. (See Scott v Handley (1999) 58 ALD 373 at [29] – [35]). The applicant did not put any argument to me, nor is any argument apparent, that would suggest that an adjournment to enable him to obtain legal advice or assistance would be of any benefit to him in meeting the jurisdictional point that is being determined today. I note further that this matter was listed for hearing today on 28 September 2006. The applicant has had over a month in which to obtain advice in relation to the particular issue before the court today.
It is also relevant that, while this was not disclosed in the application for review, the applicant has in fact brought prior proceedings in 2003 seeking judicial review of the Tribunal decision. That application was dismissed by Lindgren J in NAVH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1558. While the applicant did raise an issue that would be relevant to the review of the Tribunal decision were this a final hearing, in relation to concerns expressed in a letter sent to the Tribunal after the Tribunal hearing and before the decision was handed down, Lindgren J dealt with the applicant’s claims about intimidation in the Tribunal hearing and the claim that he had been denied additional time to put material before the Tribunal.
In all the circumstances I am not persuaded that the interests of justice are served in this case by the adjournment sought by the applicant.
The application for an adjournment is refused. The oral application is dismissed.
RECORDED : NOT TRANSCRIBED
This matter comes before me by way of a notice of objection to competency filed by the first respondent on 6 September 2006 in relation to the application filed by the applicant on 29 August 2006 seeking review of the decision of the Refugee Review Tribunal made on 30 June 2003. In his application of 29 August 2006 in response to the question, “Date when notification of the decision was received by the applicant” the applicant stated 29 July 2003.
The notice of objection to competency objects to the jurisdiction of the Court on the basis that the application is out of time. It is submitted for the respondent that as the Tribunal decision was made on 30 June 2003 and notification received by the applicant on 29 July 2003, pursuant to the provisions of the Migration Litigation Reform Act 2005, for the purposes of s.477 of the Migration Act 1958 the applicant is taken to have been actually notified of the decision on 1 December 2005. It is said that contrary to the requirements of s.477 the application was not made within 28 days of 1 December 2005 and that the court has no power to extend time for commencement of the proceedings beyond 23 February 2006 until the date on which the application was filed (29 August 2006).
Section 477 of the Migration Act 1958 provides that an application to the Court for a remedy to be granted in exercise of the Court’s original jurisdiction under s.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. Under sub-s.(2) the Court may extend that 28-day period by up to 56 days if an application is made within 84 days of the actual notification of the decision and the Court is satisfied it is in the interest of the administration of justice to do so (see s.477(3)).
In this instance it is relevant to have regard to the transitional provisions in the Migration Litigation Reform Act 2005 in relation to decisions notified before the commencement of that legislation. Item 42 of Part 2 of Schedule 1 to the Migration Litigation Reform Act provides that where proceedings are commenced on or after the commencement date (which by virtue of item 40 and section 2 is, relevantly, 1 December 2005) in relation to a migration decision made before that commencement date and where there was actual notification of the decision before that commencement date, then s.477 applies as if the actual notification of the decision took place on the commencement day.
These proceedings were commenced on 29 August 2006. This was after the commencement date and was in relation to a migration decision which was made before the commencement date (the decision of the Tribunal in this case having been made on 30 June 2003). The application states and it is not disputed that the applicant was notified of the Tribunal decision on 29 July 2003. Hence s.477 applies as if the applicant was notified on 1 December 2005. However the difficulty for the applicant is that the application is outside the strict time limits that apply under s.477, even allowing for the period of time by which the Court may extend the 28-day period in the circumstances provided for in s.477(2).
I note for the sake of completeness that s.477 applies not only to privative clause decisions but also, by virtue of the definition of migration decision in section 5 of the Act, to a purported privative clause decision or a non-privative clause decision: see s.5(e) of the Migration Act. The effect of these time limits is that this application is incompetent as it was filed outside the time provided for in s.477.
Not only was it outside the 28-day period but as it was filed more than 84 days after 1 December 2005 the Court has no jurisdiction to extend time. The present application is incompetent and that is sufficient to dispose of this matter.
For the sake of completeness I mention two other issues that were raised by the solicitor for the first respondent. First, it was not disputed that the applicant was an applicant in prior proceedings for judicial review of the Tribunal decision in issue in this case. His application to the Federal Court of Australia filed on 20 August 2003 was dismissed in NAVH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1558 on 16 December 2003. It is not however necessary for me to consider the extent to which these matters would satisfy me that there had been actual notification, as the applicant acknowledged receiving notification of the Tribunal decision on
29 July 2003.
It was also brought to my attention by the solicitor for the first respondent that the applicant had not disclosed any prior judicial review proceedings in his application of 29 August 2006. The possible application of s.486D of the Migration Act was raised. It is not however necessary for me to consider the application of s.486D in these proceedings. The application is incompetent as outside the time limits in s.477 of the Act. Accordingly the application should be dismissed as incompetent. I will hear submissions in relation to costs.
RECORDED : NOT TRANSCRIBED
The application has been dismissed. The first respondent seeks that the applicant pay her costs in the sum of $1,250. The applicant told the Court that he was not working and had no money at the moment. However his lack of funds is not a reason for departing from the general principle that the unsuccessful applicant should meet the costs of the respondent. I consider that the amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 28 November 2006
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