Nguyen v Minister for Immigration & Anor
[2006] FMCA 1495
•19 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NGUYEN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1495 |
| MIGRATION – MRT decision – application for judicial review made outside the time limit – whether time limit applies to void decisions – whether inconsistency with required lawyer’s certificate – whether proper notification on solicitor – application dismissed as incompetent. |
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Federal Magistrates Court Rules 2001 (Cth), r.44.15(1), Sch.1 Pt 2 item 1(c)
Migration Act 1958 (Cth), ss.5, 5E, 351, 368(1), 368B, 368B(5), 368B(6), 379A(1), 379A(2), 379A(4), 379G(1), 379G(2), 474(1), 476, 476(1), 477, 477(1), 477(2), 483A, 486E, 486F, 486I
Migration Litigation Reform Act 2005 (Cth), Sch.1 cll.28, 41, 42(a)
Migration Litigation Reform Bill 2005
Migration Regulations 1994 (Cth), reg.1.15A
Doukmak v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 432
Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZBVC v Minister for Immigration [2006] FMCA 834
SZEKC v Minister for Immigration & Multicultural Affairs [2006] FCA 1065
SZICV v Minister for Immigration & Anor [2006] FMCA 1063
SZIVA v Minister for Immigration & Anor [2006] FMCA 1494
VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570
WACB v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 210 ALR 190, (2004) 79 ALJR 94
| Applicant: | THI PHUONG ANH NGUYEN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG1841 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 18 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 19 October 2006 |
REPRESENTATION
| Counsel for the Applicant: | Dr J A Scutt |
| Solicitors for the Applicant: | Scanlans Lawyers |
| Counsel for the First Respondent: | Ms L Gazi |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed as incompetent.
The applicant must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1841 of 2006
| THI PHUONG ANH NGUYEN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 30 June 2006 seeking to invoke the Court’s jurisdiction under s.476(1) of the Migration Act 1958 (Cth) (“the Migration Act”). It seeks orders by way of judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 15 April 2005. The Tribunal affirmed a decision of a delegate made on 6 March 2003, refusing to grant to the applicant temporary and permanent residence visas sought on spouse grounds.
The applicant entered Australia in 1999, and applied for the spouse visas on 14 May 2001. She relied upon her marriage on 4 February 2001 to an Australian citizen, and claimed that their relationship had begun in June 2000. She claimed that she had separated from her spouse in September 2002, and that a son had been born on 21 August 2002.
The Tribunal affirmed the decision, inter alia, because it was not satisfied that at the date of visa application the applicant and her nominating spouse “have a mutual commitment to a shared life as husband and wife to the exclusion of all others”, as was required by reg.1.15A of the Migration Regulations 1994 (Cth) (“the Regulations”). It relied upon evidence that the marriage had been bigamous on the part of the nominator, and that he had pleaded guilty to that offence. He also had made statements that the marriage was fake, that he had not lived with the applicant, and that he had been paid $10,000 by the applicant to sponsor her.
Since I have decided that the Court lacks jurisdiction to review the Tribunal’s decision, it is unnecessary for me to give more details of the Tribunal’s reasons. Nor is it necessary for me to examine the numerous grounds of jurisdictional error on the part of the Tribunal which are asserted in the application which was filed in the Court.
Under s.476(1) the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1) if the Tribunal’s decision is a “privative clause decision”. It is such a decision unless I am satisfied that it was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476).
The Court’s jurisdiction is also subject to a time limit under s.477(1), which provides that an application “must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision”. The Court has under s.477(2) the power to “extend that 28 day period by up to 56 days” if the application for an extension of time is made within 84 days of the actual notification of the decision, and the Court is “satisfied that it is in the interests of the administration of justice to do so”.
The Court has no other power to overlook or extend the time limit, and in my opinion all applications which come within s.477, and are brought outside the 84 day limit, are clearly incompetent. There are now numerous decisions in this Court which have so held, including my decisions in SZBVC v Minister for Immigration [2006] FMCA 834 and SZICV v Minister for Immigration & Anor [2006] FMCA 1063. In a reserved judgment which I am delivering at the same time as this judgment, I have further examined the effect of s.477 (see SZIVA v Minister for Immigration & Anor [2006] FMCA 1494 (“SZIVA”)). I propose to apply the opinions I explained in those cases, and shall not repeat my reasoning except where this is required to address specific contentions made by the applicant’s counsel.
The Migration Litigation Reform Act 2005 (Cth), which introduced the present provisions of ss.476 and 477, repealed the provisions of s.483A which previously gave jurisdiction to this Court over decisions such as the present (see Sch.1 cl.28). Sch.1 cl.41 provided that the new jurisdiction and time limitation provisions apply to all proceedings “in relation to a migration decision that are commenced on or after the commencement day”. It is therefore clear, that any application for judicial review, brought in this Court after 1 December 2005 in relation to a previously made migration decision, must satisfy the jurisdictional limitations provided in ss.476 and 477.
However, a special transitional period of grace was permitted in relation to applications challenging old decisions. As my judgments cited above explain, in relation to applications under s.476(1) concerning a decision made before its commencement on 1 December 2005, Sch.1 cl.42(a) of the amending Act provided 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”.
The combined effect of the transitional provisions is that an application in relation to a decision published before 1 December 2005 is irremediably incompetent if it is filed in the Court on and after Friday 24 February 2006, but only if the Court can be satisfied that “actual (as opposed to deemed) notification” of the decision occurred prior to 1 December 2005. If it is not so satisfied, time will have continued to run unless a bar arises directly by reason of s.477, that is, calculated from such date subsequent to 1 December 2005 at which the Court is satisfied that the applicant received actual notification. If the Court is left undecided whether the application was brought within time, with or without an extension under s.477(2), then the application cannot be dismissed as incompetent, since “the Minister [has] the burden of establishing lack of competency” (see WACB v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 210 ALR 190, (2004) 79 ALJR 94 at [9]).
I did not understand counsel for the applicant to argue with any of the above propositions. She also conceded, and led no evidence to challenge the implication of evidence led by the Minister, that the applicant personally attended a handing down ceremony at the Tribunal on 15 April 2005 where she physically received a copy of the Tribunal’s decision and statement of reasons. However, she argued that s.477 did not apply to render incompetent the present application, notwithstanding that it was not filed until six months after the expiry of the transitional 28 day period which commenced on 1 December 2005.
Counsel’s written submission identified “three bases” for establishing the competence of the application:
1.No actual decision: The purported decision of the Migration Review Tribunal is not a decision within the meaning of Part 5, Division 6 of the Act, so that the Applicant has not been notified of a decision to which the provisions apply. That is, there being no actual notification of a decision within the meaning of the Act, the provisions do not apply.
2.Need for consistency of provisions and presumption that consistent with International law principles: If, here, there is a decision to which the time limits apply (which is denied), the time limit provisions must be read so as to be consistent generally with the other provisions of the Act, and where they are or appear to be inconsistent, then the later inconsistent provision prevails. Further, the presumption that domestic laws are consistent with international law should be taken into account in determining the meaning and application of the time limits and any later inconsistent provision.
3.No actual notification: If there is a decision to which the time limits apply (which is denied), the Respondents failed to comply with the requirements of the Migration Act 1958 (Cth) (‘the Act’), namely sections 368B and 379, so that there was no ‘actual’ notification to the Applicant of the (purported) decision. Further, the letter purporting to inform the Applicant of the Tribunal’s decision did not meet the mandatory requirements of the Act. The Applicant has never lawfully been notified of the Tribunal’s decision. Therefore section 477 of the Act and item 42 of Part 2 of Schedule 1 to the Migration Litigation Reform Act 2005 (Cth) (‘the provisions’) do not apply.
I shall address these grounds under headings which encapsulate the arguments made by counsel for the applicant.
Section 477 does not apply to purported but void decisions.
Counsel argued that the decision of the Tribunal was affected by various jurisdictional errors, so that in law it was “no decision” or was a decision void of any legal effect, citing Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. She submitted that s.477 should be construed so as not to apply to such purported decisions. Although she did not invoke Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, implicitly her argument sought to give s.477 the same limited effect as resulted from the High Court’s interpretation of references to “a privative clause decision” when applied to the description: “an application … in respect of a privative clause decision …” in the now replaced time limits under former s.477.
When addressing this argument, I am able to assume that the decision was affected by jurisdictional error, so that it is unnecessary for me to decide whether in fact it was so affected on any of the grounds contended.
The difficulty with the argument is that the new s.477 applies to “an application … in relation to a migration decision …”. As a result of amendments made in the Migration Litigation Reform Act 2005 (Cth), the term “migration decision” is now defined in s.5 to include “a purported privative clause decision”, which is itself defined in s.5E:
5E Meaning of purported privative clause decision
(1)In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:
(a)a failure to exercise jurisdiction; or
(b)an excess of jurisdiction;
in the making of the decision.
(2)In this section, decision includes anything listed in subsection 474(3).
I have in previous cases, held that this definitional structure has the effect that a decision of the Tribunal which is affected by jurisdictional error is a “migration decision” for the purposes of s.477 (e.g. SZBVC v Minister for Immigration [2006] FMCA 834). The same interpretation has also been taken in the Federal Court, where Cowdroy J concluded: “under the Migration Act as amended, the time limits affect all migration decisions, whether or not affected by jurisdictional error” (see SZEKC v Minister for Immigration & Multicultural Affairs [2006] FCA 1065 at [6]). I shall follow my previous opinions.
Moreover, this argument cannot help the applicant. If the present decision is not a “migration decision”, then the Court would lack jurisdiction for the more direct reason that the decision would fall outside the statutory jurisdiction defined by s.476(1).
I therefore reject the argument that the present decision of the Tribunal was not a decision falling within s.477.
Section 477 should be construed to give way to section 486I.
As I understood counsel’s argument, it was that there was inconsistency between the time limit provided by s.477 and the provisions of s.486I, which were also introduced by the 2005 amendments. The latter section requires an initiating application for judicial review which is filed by a lawyer to be accompanied by a certificate that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success. She did not argue that s.477 was inconsistent with any provision of the Commonwealth Constitution.
Counsel argued that, as a result of this inconsistency, s.477 should be read down or given no effect. She did not formulate the extent of the reading down, or the circumstances in which the time limit was to be given no effect. At one point in her submissions, I understood her to argue that s.477 should be read with an implicit qualification that the time limit would not apply to any application which was filed with a lawyer’s certificate. At other times, her submissions suggested that the implication of s.486I was that the time limit in s.477(1), or the period for which an extension could be sought and allowed under s.477(2), should expand to permit an applicant’s lawyer such time as was needed to give the certificate as to prospects. Thus it should take into account a reasonable time required in the particular circumstances to obtain documents and transcripts, seek counsel’s opinion, employ interpreters, obtain instructions from non‑English speaking clients, and save funds for the litigation.
In her written submission, she argued:
5.11Section 486I provides:
Lawyer’s certification
(1)A lawyer must not file a document commencing migration litigation, un1ess the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success.
(2)A court must refuse to accept a document commencing migration litigation if it is a document that, under subsection (1), must be certified and it has not been.
5.12Where a lapse of time is caused by reason of a practitioner’s having to comply with this provision, then this must be able to be taken into account by the Court in determining whether or not timelines are complied with.
5.13That is, if a delay is caused because of a need to ensure that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success, then to ensure that this provision is not inconsistent with the right of a litigant to seek a review, the provisions must be read to enable the Court to retain a capacity to extend time.
5.14If such a capacity does not lie, then a litigant will be deprived of the right to review not because of any wilful or negligent delay, but because of a delay caused by seeking to comply with this important requirement of the Act, namely that a review of a Tribunal decision is not commenced in disregard of the need to ensure that there are reasonable grounds for believing that the litigation has a reasonable prospect of success.
5.15Section 486I is later in the Act than section 477 setting time limits. Hence, it takes precedence over section 477 to the extent of any inconsistency: Pearce and Geddes.
5.16Further, the Act is to be read consistent with the Commonwealth’s international obligations, both general international law and international treaties: Plaintiff S157/2002 v. Commonwealth of Australia [2003] HCA 2 (4 February 2003), at paras [27]‑[31] per Chief Justice Gleeson; Chu Kheng Lim v. Minister for Immigration (1992) 176 CLR 1, at 38 per Justices Brennan, Deane and Dawson.
As well as the above principles of interpretation, counsel invoked principles supporting interpretations which favour human rights, Australia’s international obligations, fundamental rights or freedoms, and the rule of law. Particular human rights and the sections of international instruments which were invoked to give s.477 the argued interpretation were not identified. Nor, in my opinion, was there any identification of any relevant ambiguity or obscurity in the language of s.477 which might allow reference to these sources.
I do not consider that there is any conflict between the language or concerns of the two sections. Each section addresses separate aspects of judicial review litigation, and reveals a policy to address different concerns. Section 477 plainly intended a mandatory and finite period within which this Court’s jurisdiction may be invoked. It contains no ambiguities in that respect, and I cannot understand how its language is open to any of the constructions suggested by counsel. The policy reflected in the language might appear harsh to some people, even inconsistent with human rights values and the other considerations to which counsel referred. However, in my opinion, the provision uses language which is relevantly unambiguous, and does not allow any of the implications suggested by counsel for the applicant.
The requirement of a lawyer’s certificate addressed a separate concern: that of unmeritorious litigation. It attracted criticism on various grounds when the Migration Litigation Reform Bill 2005 was under consideration in Parliament. Largely, these reflected a concern that, in combination to the possible exposure to personal costs orders under ss.486E and 486F, lawyers acting for migration litigants might be discouraged from providing their services. Whether this concern has substance might warrant further consideration by the legislature, but it does not provide any proper basis for giving s.477 an interpretation which is not available in its language.
I was not taken to any extrinsic material which could allow me to conclude that ss.477 and 486I are incapable in practical terms of operating together. If I were able to consult my own experience as an administrative lawyer and judge, I would be far from persuaded that a period of 28 days, with a possible extension for a further 56 days, would not usually provide a sufficient and reasonable period for a client affected by a migration decision to instruct a lawyer in time to allow the lawyer to commence proceedings carrying a certificate in terms of s.486I. Administrative law for many decades has been familiar with 28 day time limits, notably under the Administrative Decisions (Judicial Review) Act 1977 (Cth), and the Administrative Appeals Tribunal Act 1975 (Cth). I was not referred to any evidence suggesting that legal practitioners have found it impossible ethically to advise their clients on reasonable prospects of success in bringing applications within that period.
I therefore consider that counsel’s present argument is also premised upon factual assertions of inconsistency which are unsupported. I am unpersuaded that the two provisions of ss.477 and 486I cannot be given concurrent effect according to their respective language and their context in the Migration Act, without any linguistic or practical conflict. I can find no proper reason for giving s.477 an effect not available within its own terms.
Counsel for the applicant sought to use the facts of the present case to support her argument of inconsistency between ss.477 and 486I, submitting:
5.21In the present case, the Applicant required interpreter and translation services in order to instruct her solicitor. She required interpreter and translation services to obtain advice. She required the financial means to seek and obtain services and advice to enable her to determine whether she had a reasonable case to put to the Court for review of the Tribunal decision. As set out in her affidavit filed with the application for review of the Tribunal decision, her circumstances meant that there was inevitable delay which was not due to any fault but due to her situation of being an applicant under the Act and having obligations to her child.
In fact, no evidence was presented from the applicant herself to explain why she did not commence judicial review proceedings before 30 June 2006 in relation to a decision she personally received on 15 April 2005. However, evidence was led by affidavit and oral evidence from her current solicitor, whom even prior to the Tribunal’s decision she had employed to assist in her migration and other matters. It referred to difficulties of communication with the client, an attempt to obtain the Minister’s intervention under s.351, delays in obtaining a second counsel’s opinion which was acceptable to the solicitor, difficulties in raising money to fund a judicial review application, ill health by the client, and complexities arising from other legal concerns. The dimensions and chronology of relevant events remained obscure.
I was unpersuaded by this evidence that the long delay in commencing the present proceeding was reasonably explained, and, in particular, the delay after the introduction of the new time limit in December 2005. One fact did emerge clearly. The applicant’s solicitor admitted that she received in January 2006 positive opinions from her current counsel that there were grounds for commencing proceedings in this Court. At that time, a proceeding could have been brought within the time limit under s.477, although a short extension of time might have been required. The evidence of the applicant’s solicitor established that, in fact, she undoubtedly would have been able to give a certificate in terms of s.486I at that time. The evidence does not, therefore, establish that it was impossible to comply with both ss.477 and 486I in the present case.
No valid notification to an authorised recipient.
In the present case, there was no contention that the applicant did not receive “actual” notice of the Tribunal’s decision and statement of reasons, by being personally given a copy when she attended on the day of its handing down. The issues of construction raised by this word in the phrase “actual (as opposed to deemed) notification” in s.477 which I have addressed in SZIVA (supra) do not, therefore, arise in this case.
Counsel for the applicant argued that the reference to “notification” provided an additional requirement that the Court should be satisfied that the Tribunal also complied with its statutory “code of procedures” for the notification of its decision to the person who seeks relief from the Court. I have considered and accepted this point of construction in SZIVA, and it is unnecessary for me to repeat my reasoning.
The formalities for handing down and notifying the present decision were contained in s.368B:
368BTribunal decision to be handed down
(1)This section applies to any decision on a review by the Tribunal other than the following decisions:
(a)a decision that is given orally;
(b)a decision on the application of a person who is in immigration detention because of:
(i)a decision to refuse to grant him or her a bridging visa; or
(ii)a decision to cancel his or her bridging visa.
(2)On the day, and at the time and place, specified in the notice referred to in section 368A, the decision on the review is to be handed down (on behalf of the Tribunal) by:
(a)the Principal Member; or
(b)a person authorised in writing by the Principal Member to hand down decisions.
An authorisation may set out the circumstances in which a person is authorised to hand down decisions.
(3)The Tribunal’s decision may be handed down:
(a)by reading the outcome of the decision; and
(b)whether or not either or both the applicant and the Secretary are present.
(4)The date of the decision is the date on which the decision is handed down.
(5)If the applicant and the Secretary are present at the handing down of the decision, the Tribunal must give each of them a copy of the statement prepared under subsection 368(1).
(6)If the applicant is not present at the handing down of the decision, the Tribunal must notify the applicant of the decision by giving the applicant a copy of the statement prepared under subsection 368(1). The copy must be given to the applicant:
(a)within 14 days after the day on which the decision is handed down; and
(b)by one of the methods specified in section 379A.
(7)If the Secretary is not present at the handing down of the decision, the Tribunal must give to the Secretary a copy of the statement prepared under subsection 368(1). The copy must be given to the Secretary:
(a)within 14 days after the day on which the decision is handed down; and
(b)by one of the methods specified in section 379B.
(8)Without limiting the generality of subsections (6) and (7), an applicant or the Secretary is taken not to be present at the handing down of a decision if:
(a)he or she is not at the same location as that of the person who is handing down the decision when the decision is handed down; and
(b)the decision is being handed down by:
(i)telephone; or
(ii)closed‑circuit television; or
(iii)any other means of communication.
(9)A reference to the applicant or the Secretary being present at the handing down of the decision includes a reference to a representative of the applicant or Secretary being present.
(emphasis added)
The “statement prepared under subsection 368(1)” is a statement which “sets out the decision of the Tribunal on the review” and also contains the Tribunal’s reasoning according to its perception of the requirements of s.368(1)(b), (c) and (d) (c.f. Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323). It is unnecessary to consider these, since it is not disputed by the applicant that the Tribunal’s “statement of decision and reasons” was such a statement.
In relation to the obligation under s.368B(5) to “give” the statement to an applicant who is present at the handing down, s.379A(1) and (2) provided:
379AMethods by which Tribunal gives documents to a person other than the Secretary
Coverage of section
(1)For the purposes of provisions of this Part or the regulations that:
(a)require or permit the Tribunal to give a document to a person (the recipient); and
(b)state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
Giving by hand
(2)One method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the recipient.
…
As I have indicated above, the Minister presented evidence that the applicant personally attended a handing down ceremony in the present matter on 15 April 2005. The applicant did not put into contention that this was regularly appointed and conducted, and her counsel conceded that the applicant was physically given a copy of the statement of decision and reasons.
I therefore find that the Tribunal complied with notification requirements in relation to the giving of its decision in accordance with ss.368B(5) and 379A(2), so that there was formal as well as actual “notification” of the decision for the purposes of s.477.
The arguments of counsel for the applicant that there was no formal “notification” of the decision sought to find defects in a procedure which was also followed by the Tribunal when posting a copy of its decision statement to the applicant’s current solicitor by letter dated 15 April 2005. She argued that this procedure was deficient in three respects:
i)The Tribunal on 2 February 2005 had received an “authority” letter signed by the applicant which appointed her solicitor “to act on my behalf in relation to immigration matter”. It then received letters from the solicitor, showing the solicitor’s address, which made submissions on behalf of the applicant. However, it was argued that these documents did not amount to “written notice of the name and address of another person … authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review” within s.379G(1), so as to allow the communication to be characterised as a “notification” to the applicant according to the posting and agency procedures of ss.368B(6), 379A(4) and 379G(2). It was argued that such a notice appointing an authorised recipient was ineffective without a consent of that person communicated to the Tribunal, and evidence was led from the solicitor that she never gave consent to become an authorised recipient.
ii)Alternatively, it was pointed out that the Tribunal’s letter to the solicitor which enclosed the decision statement was addressed to the solicitor, but its body was addressed to the applicant herself. It was argued that this precluded the letter being characterised as a notification complying with the requirement that “the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant” within s.379G(1) (citing VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570).
iii)Alternatively, it was argued that the letter and its enclosed “Information About Tribunal Decisions”, was not a valid notification because it contained advice about review rights which, although no such advice was required by the legislation, was so misleading as to “frustrate or negate” the entitlement of the applicant to apply to the Court, within a principle discussed by Moore J in Doukmak v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 432 at [34]‑[39]. Counsel argued that there was misleading information given because, although the letter advised about (then) review rights by the Federal Court or this Court, no reference was made to the High Court’s Constitutional jurisdiction. She also argued that the information sheet was misleading because it did not inform the applicant that the 28 day time limit for review of “privative clause decisions” might expire if she first followed its alternative procedures of applying for administrative remedies from the Minister or Commonwealth Ombudsman.
In my opinion, it is unnecessary for me to examine any of these arguments. If they are correct, and there was never a formally correct “notification” of an authorised recipient, there was, as I have found above, a legally sufficient notification of the applicant herself at the handing down ceremony. It is therefore irrelevant that the letter received by the solicitor might not also have been a legally sufficient “notification” of the applicant. The provision allowing notification to an authorised recipient expressly states that it “does not prevent the Tribunal giving the applicant a copy of the document” (see s.379G(2) and Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221 at [17]‑[20]).
Conclusion
For the above reasons, I am satisfied that s.477 applies in relation to the present decision of the Tribunal, and that the applicant received actual notification within the meaning of that provision on 15 April 2005. Her application must, therefore, be dismissed as incompetent.
The Minister seeks costs fixed in the lump sum amount of $5,000 according to r.44.15(1) and Sch.1 Part 2 item 1(c) of the Federal Magistrates Court Rules 2001 (Cth). That amount applies where “the proceeding is concluded at a final hearing”. In the present case, the proceeding has passed through a first court date, and the parties have filed evidence and written elaborate submissions in relation to the issues of competency. The hearing extended into the afternoon. I consider that it is appropriate to award costs in that amount.
I certify that the preceding forty‑one (41) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 19 October 2006
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