S1548 of 2003 v Minister for Immigration
[2007] FMCA 114
•8 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1548 OF 2003 v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 114 |
| MIGRATION – Application for review of Refugee Review Tribunal decision. PRACTICE AND PROCEDURE – Application – summary dismissal of application as incompetent – application out of time. |
| Migration Act 1958, ss.5, 477 Migration Litigation Reform Act 2005, sch.1 Federal Court Rules, sch.1 |
| Applicant: | APPLICANT S1548 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3434 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 8 February 2007 |
| Date of last submission: | 8 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2007 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The name of the first respondent be substituted to read “Minister for Immigration & Citizenship”.
The application be dismissed as incompetent.
The applicant pay the first respondent’s costs fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3434 of 2006
| APPLICANT S1548 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By application filed on 22 November 2006 the applicant seeks review of the decision of the Refugee Review Tribunal dated 5 January 1998 which affirmed an earlier decision of the delegate of the Minister for Immigration & Multicultural Affairs dated 15 April 1997 refusing the applicant’s application for a protection visa.
In the application filed in these proceedings the applicant says that the date of the Tribunal’s decision was 5 January 1998 and the date when she received notification of the decision was 10 January 1998. In her application the applicant indicates that she seeks an extension of time under s.477 of the Migration Act 1958 (Cth) (“Act”).
At this point it is worth noting that on the next page of the application a history of prior proceedings is set out. Mr Marcus on behalf of the Minister has taken me to a decision of Nicholls FM where the hearing occurred on 5 September 2005 and which involved the same applicant as the applicant in these proceedings and were proceedings relating to the decision of the Refugee Review Tribunal made on 5 January 1998. Mr Marcus pointed out that it was not insignificant that the applicant’s pseudonym in these proceedings is S1548 of 2003, which is the same pseudonym as in the proceedings before Nicholls FM. Mr Marcus pointed out that that pseudonym indicated prior proceedings, but in any event, the reasons for judgment of Nicholls FM and the date of those proceedings tends to confirm what appears in the applicant’s application concerning the date of the Tribunal’s decision and when she was notified of it.
Significantly also, the applicant’s affidavit sworn 22 November 2006 and filed that day deposes in para.1 to her need for an extension of time to lodge the application.
The Minister filed a response alleging that the application was out of time, and relying on the same particulars appearing in the response, filed a notice of objection to competency. The objection to competency has been pressed before me this morning.
Section 477 of the Act is the provision relevant to the application this morning and it provides that the applicant must commence proceedings within 28 days of notification of the decision referred to in that provision as a migration decision. I am satisfied by reason of the definition of “migration decision” in s.5 of the Act that the Tribunal’s decision was a migration decision.
Subsection (3) of s.477 provides that unless time is extended under sub-s.(2) of s.477 the Federal Magistrates Court may not make an order allowing or which has the effect of allowing an applicant to make an application under sub-s.(1) outside the 28-day period provided by that section.
The extension of time provision permits an extension of time of
56 days in addition to the 28 days allowed under sub-s.(1) if an application for such an extension is made within 84 days of the actual, as opposed to deemed, notification of the decision. The question therefore is, when was the decision notified to the applicant.
The Migration Litigation Reform Act 2005 provides transitional provisions dealing with situations such as this and item 42 of sch.1 to that Act provides that:
Where proceedings are commenced on or after the commencement day –
as these are -
in relation to a migration decision made before the commencement day –
which this one was -
and actual notification of the decision is given before the commencement day –
as occurred in this case –
s.477 of the Migration Act applies as if the actual notification of the decision took place on the commencement day.
The commencement day was 1 December 2005. Therefore, the decision is taken to have been notified to the applicant on 1 December 2005 and she had 84 days from that date within which to seek an extension of time.
Her application was filed on 22 November 2006, which is, as Mr Marcus says, approximately 11 months after the commencement date and certainly many months after the 84-day period within which an extension of time might have been granted. Therefore, it is apparent that the proceedings have been commenced out of time and that the Court has no power to extend time for the bringing of the proceedings. The result is that the Court does not have jurisdiction and that this application is not competent. Therefore it will be dismissed.
As the proceedings will be dismissed and in the ordinary course of events costs would follow the event, I have heard argument about whether the Minister should be awarded his costs of these proceedings. I am satisfied that there is no reason why the ordinary course should not be followed and that costs follow the event. Mr Marcus has sought a sum of $2,500 which is the sum set out in item 1(b) of pt.1 of sch.1 to the Rules of this Court and I will make an order for costs in that amount.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate: Angela Chong
Date: 8 February 2007
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