S1459 of 2003 v Minister for Immigration

[2006] FMCA 1843

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1459 of 2003 v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1843

MIGRATION – Protection visa – application filed out of time – application dismissed.

Migration Act 1958 (Cth), s.477
Migration Litigation Reform Act 2005 (Cth)

Federal Magistrates Court Rules 2001

Applicant: APPLICANT S1459 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3269 of 2006

Judgment of: McInnis FM

Hearing date: 12 December 2006

Delivered at: Sydney

Delivered on: 12 December 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms D Watson
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application filed on 9 November 2006 be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant shall pay the first respondent’s costs and disbursements, fixed in the sum of $1,000.

3. The Court directs that the name of the applicant be amended by deleting the word “Applicants” and substituting the word “Applicant” in lieu thereof.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3269 of 2006

APPLICANT S1459 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. In this matter the applicant, by an application filed 9 November 2006, has sought judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 22 December 1999.  The applicant has made an application for a protection visa.  That application was the subject of a decision by a delegate of the first respondent who, on 3 February 1998, refused the protection visa application.  The applicant then sought review of that decision with the Tribunal and as indicated. The Tribunal affirmed the decision of the delegate not to grant a protection visa. 

2. For reasons which will become apparent, it is not necessary for the Court to recite in detail any further background concerning the application for a protection visa. The applicant, however, having received the decision dated 22 December 1999 has followed a somewhat chequered history in terms of proceedings. However, before this Court the first respondent has submitted that the application before the Court this day ought to be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) on the grounds that the Court should not be satisfied that there is an arguable case. The basis for the submission by the first respondent is found in the application of relevant legislation which now imposes strict time limits upon applicants within which applications of this kind should be filed with the Court.

3. The first respondent submits that the Court lacks jurisdiction to hear the application and that the application is out of time.  It is submitted, and I accept, the decision of the Tribunal as indicated was made on 22 December 1999.  It is noted that in the application the applicant himself indicates that he was notified of the decision “early January 2000.”  It is submitted by the first respondent that, whilst the applicant was actually notified of the decision at around that time and has sought judicial review of the decision in earlier proceedings pursuant to Part 2 item 42 of schedule 1 of the Migration Litigation Reform Act 2005 (Cth), for the purposes of s.477 of the Migration Act 1958 (Cth) (“the Migration Act”) the applicant is taken to have been actually notified of the decision on 1 December 2005.

4. It is clear from the brief history that I have referred to that the application before this Court having been filed on 9 November 2006 has not been filed within the 28-day period from 1 December 2005 and, accordingly, contravenes the requirements of s.477(1) of the Migration Act. It is submitted by the first respondent, and I accept, that this Court, as a consequence of the amending legislation, has no power to extend time at the commencement of the proceedings beyond 23 February 2006. In the circumstances, having regard to the fact that the Court has no power to extend the time for the commencement of these proceedings beyond that date and certainly not up to and including the date of actual filing, namely 9 November 2006, it is clear that the first respondent’s submissions are correct and that the appropriate order is to dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.

5. I note, however, that the applicant in the application and, indeed, in his supporting affidavit, recites the history of proceedings and includes a reference to Federal Court proceedings which he withdrew and also refers to the fact that he joined a class action which, although initially successful, was ultimately dismissed.  I note and accept that it is the desire of the applicant to seek an extension of time within which to bring this application.  However, for the reasons which I have given it is clear to me as a matter of law, as submitted by the first respondent, that the Court does not have power to grant an extension of time of a kind which would permit the application to proceed.  The application as a result of the recent amendments is clearly incompetent and it is appropriate to make the order sought by the first respondent. 

6. The orders of the Court are: 

   (1)The application filed 9 November 2006 be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.

   (2) The applicants shall pay the first respondent’s costs which I fix in the sum of $1,000. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  14 December 2006