Nirmalan v Minister for Immigration and Multicultural Affairs

[1998] FCA 672

FEDERAL COURT OF AUSTRALIA

Migration - appeal from decision dismissing an application for an order for review of a decision of the Refugee Review Tribunal - whether application out of time - whether Court has jurisdiction to consider grounds for failure to lodge application in time.

Migration Act 1958 - s 478

PATHMANATHAN NIRMALAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1143  OF   1997

JUDGES:      BEAUMONT, BRANSON AND EMMETT JJ.
PLACE:         SYDNEY
DATE:           14 MAY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1143  of   1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	PATHMANATHAN NIRMALAN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:		BEAUMONT, BRANSON AND EMMETT JJ.
DATE OF ORDER:		14 MAY 1998
WHERE MADE:		SYDNEY

ORDERS:

Appeal dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1143 of 1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	PATHMANATHAN NIRMALAN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	BEAUMONT, BRANSON AND EMMETT JJ.
DATE:	14 MAY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:
This is an appeal from a decision of Einfeld J dismissing an application for an order for review of a decision of the Refugee Review Tribunal (“the Tribunal”).  His Honour dismissed the application on the ground that, by virtue of the provisions of the Migration Act 1958 (“the Act”), the application was out of time and the Court had no jurisdiction to extend that time.

The decision of the Tribunal was made on 28 July 1997.  There was evidence before his Honour that the appellant was notified of that decision by facsimile dated 29 July 1997.  The application for review was filed in this Court on 3 December 1997.  It appears that after the Tribunal's decision, the appellant made representations to the Minister in the matter and it may be that for this reason, the appellant decided not to institute the application for judicial review.

The terms of s 478(1)(b) of the Act are specific. They provide that an application of the present kind must be lodged within 28 days of the applicant being notified of the decision. Moreover, s 478(2) of the Act provides in terms that the Court must not make an order extending time. There is now a considerable line of authority in this Court which establishes that the Court has no jurisdiction to extend time irrespective of the merits of an application for extension.

This, of course, is a matter for the Parliament to legislate about and it has done so in explicit terms.  In those circumstances, in my view, his Honour had no choice but to dismiss the present application.  It must follow that the appeal should be dismissed.

BRANSON J:
I agree.

EMMETT J:
I agree also.  I would add that the appellant, in his supplementary notice of appeal, gave an explanation as to why he did not lodge his application to the Federal Court in time.  It should be understood that we simply do not have jurisdiction to consider the adequacy of those reasons.  The statute binds the Court.  I agree therefore that the appeal should be dismissed.

ORDERS
The appeal is dismissed with costs.

I certify that this and the preceding one (1) pages are a true copy of the Reasons for Judgment herein of the Court

Associate:

Dated:             14 May 1998

Appellant:	The appellant appeared in person
Counsel for the Respondent:	Ms Rhonda Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 May 1998
Date of Judgment:	14 May 1998