NBHV v Minister for Immigration
[2007] FMCA 1081
•5 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBHV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1081 |
| MIGRATION – Refugee Review Tribunal – whether Court has jurisdiction to consider application – whether applicant filed application within 84 days of notification of decision of Refugee Review Tribunal. |
| Migration Act 1958 (Cth), ss.477; 477(2); 477(3) |
| Applicant: | NBHV |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1907 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 5 July 2007 |
| Date of Last Submission: | 5 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 July 2007 |
REPRESENTATION
| Applicant appeared on his own behalf |
| Solicitors for the Respondent: | Ms M. Mafessanti, Clayton Utz. |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1907 of 2007
| NBHV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By the response, filed on 28 June 2007, the first respondent seeks an order dismissing the proceeding before this Court commenced by way of application on 19 June 2007 on the basis that this Court has no jurisdiction to entertain the application for Judicial Review in circumstances where the applicant was notified of the decision of the Refugee Review Tribunal (“the Triubnal”) on 10 May 2004.
Pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”), an application to this Court for judicial review of a decision of the Tribunal must be made within 28 days of the actual as opposed to deemed notification of the decision. Pursuant to s.477(2) of the Act, this Court may extend that 28 day period by a further 56 days if an application for that day is made “within 84 days of the actual (as opposed to deemed) notification of the decision” and this Court is satisfied that it is “in the interests of the administration of justice to do so”.
Section 477(3) of the Act provides that except as provided by sub-s.(2) this Court must not make an order allowing or which has the affect allowing an applicant to make application outside that 28 day period.
The initiating application signed by the applicant and filed on this Court on 19 June 2007 states that the applicant was notified of the Tribunal's decision on 10 May 2004. There is no evidence before this Court to suggest that the applicant was not notified of the Tribunal’s decision on 10 May 2004.
The response filed by the first respondent states that on 27 January 2005 the applicant filed a Notice of Discontinuance in proceeding SYG2179/2004 in which the applicant sought judicial review of the same Tribunal decision. The first respondent's response discloses that on 18 February 2005, Driver FM ordered the applicant to pay the costs of the first respondent fixed in the sum of $2,000 following the filing by the applicant her Notice of Discontinuance.
In the circumstances, I am satisfied that more than 84 days have passed since the applicant was notified of the Tribunal's decision.
Accordingly, pursuant to s.477(3) of the Act, this Court has no jurisdiction to extend further time to the applicant for the filing of an application seeking judicial review of that Tribunal proceeding.
The proceeding before this Court commenced by way of application filed on 19 June 2007 is dismissed on the basis that this Court has no jurisdiction to consider the application.
Recorded not Transcribed
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 11 July 2007
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