S1711 of 2003 v Minister for Immigration
[2007] FMCA 1044
•4 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1711 OF 2003 v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1044 |
| MIGRATION – Refugee – out of time – application dismissed. |
| Migration Act 1958 (Cth), ss.476, 477(1), 477, 417, 477A, 486A, 477(2), 477(2)(a) |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | APPLICANT S1711 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 21 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 4 May 2007 |
| Date of Last Submission: | 14 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms. M. Palmer |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed as incompetent.
The applicant pay the first respondent’s costs set in the amount of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 21 of 2007
| APPLICANT S1711 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore: Revised)
I have before me an application filed in this Court on 3 January 2007, seeking the exercise of the Court’s jurisdiction pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”). The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 December 1999 to affirm a decision of a delegate of the respondent Minister made on 26 June 1998 to refuse the grant of a protection visa to the applicant.
The applicant is a citizen of Indonesia who arrived in Australia on
23 April 1998. Ultimately, she and her son were applicants before the Tribunal in 1998. While her son is named in the application, only the applicant appeared before me today to press the application.The Minister’s Response, filed on 31 January 2007, asserts that the Court has no jurisdiction to review the Tribunal decision. The Minister presses, also by way of written submissions filed on 14 February 2007, that the application be dismissed as incompetent, as it has been filed outside the time limits prescribed in s.477(1) of the Act.
At the hearing before me today, the applicant, who was unrepresented, appeared with the assistance of an interpreter in the Indonesian language. Mr. T. Reilly of Counsel appeared for the Minister.
It is clear that the Court’s jurisdiction is the threshold issue before the Court today. This is with particular reference to the relevant time limits for the making of applications complaining about a Tribunal decision set out in s.477 of the Act.
Relevantly, the material before the Court is:
(1)An application filed on 3 January 2007.
(2)The applicant’s affidavit of 3 January 2007 annexing the Tribunal decision.
(3)The Minister’s response filed 31 January 2007.
(4)An affidavit of Megan Louise Palmer (a solicitor in the employ of the Minister’s solicitors) made on 21 January 2007 with annexures (see in particular Annexure “A” – Chronology of relevant background):
“Background
25 July 1956 Primary applicant was born in Indonesia
23 April 1998 Applicants arrived in Australia
DIMIA
1 June 1998Applicant lodged application for a protection visa
26 June 1998 Delegate of respondent refused application for a protection visa
RRT
27 July 1998 Applicant applied to RRT for review of delegate’s decision
25 November 1999 RRT Hearing
21 December 1999 Delegate’s decision affirmed by RRT
FOI Request
8 February 2000 Applicant lodged FOI request with Department of Immigration and Multicultural Affairs (DIMA)
29 February 2000 DIMA sent a letter acknowledging FOI request to applicant
2 March 2000 DIMA forwarded released documents to applicant
DIMA
15 March 2000 Letter from applicant’s solicitor to Minister pursuant to s.417 of the Migration Act 1958
6 June 2000 Minister refused to exercise power under s.417 of the Migration Act 1958
High Court S89 of 1999
3 May 2000 Applicant joined Lie class action
25 November 2002 Gaudron J ordered that the matter be remitted instanter to the FC
High Court S1711 of 2003
29 May 2003 Affidavit of Adrian Joel lodged in the HC annexing copies of the delegate’s decision, RRT decision and a draft order nisi.
Federal Court N2020 of 2003
9 February 2004 Directions hearing
20 February 2004 Order of Emmett J refusing application for order nisi
Federal Magistrates SYG 21 of 2007
Court
3 January 2007 Application for judicial review lodged”
(5)The Minister’s written submissions filed on 14 February 2007 (Mr. Reilly sought not to press the last two sentences of paragraph 8).
(6)An affidavit of Megan Louise Palmer made on 31 May 2007, with annexures.
The respondent submits that the Court, simply, does not have jurisdiction to hear the application. This is with reference to the amendments to the Act, made by the Migration Litigation Reform Act 2005 (Cth) (“the reform Act”), which provide for time limits to be applied to the making of applications before this Court. Section 477 of the Act provides:
“Time limits on applications to the Federal Magistrates Court
(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.
(2) The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
(a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
(b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3) Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.
(4) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.”
Further, irrespective of exactly when actual notification occurred, Schedule 1, Clause 42(a) to the reform Act provides for transitional provisions to apply to decisions made before the commencement day of the reform Act (1 December 2005) in the following terms:
“Where proceedings are commenced on or after the commencement day in relation to a migration decision made before the commencement day, and actual notification of the decision is given before the commencement day:
(a) section 477 of the Migration Act 1958 applies as if the actual notification of the decision took place on the commencement day; and
(b) section 477A of that Act applies as if the actual notification of the decision took place on the commencement day; and
(c) section 486A of that Act applies as if the actual notification of the decision took place on the commencement day.”
The reform Act commenced operation on 1 December 2005 and, as such, actual notification of the decision (if it was made prior to that day) is taken to have occurred on that day. In these circumstances, if an application is filed later than 28 days after 1 December 2005
(29 December 2006), and no extension of time is granted extending that 28 day period by up to 56 days pursuant to s.477(2) of the Act (until up to 23 February 2006), the application is incompetent before this Court.The application to the Court is silent to when the applicant received notification of the Tribunal’s decision. However, the Court has before it the applicant’s affidavit made on 3 January 2007 and the applicant was cross-examined by Mr. Reilly. She gave evidence that the relevant Tribunal decision was the decision made on 21 December 1999 which is annexed to her affidavit, and that she received a copy of the Tribunal’s decision soon after the making of the Tribunal’s decision in 1999.
Further, with reference to the material before the Court by way of annexures to the affidavit of Ms. Palmer, there is no doubt that the applicant had actual notice of the Tribunal decision at least at the time of joining proceedings in the High Court. In all, therefore, the applicant had actual notice of the Tribunal’s decision before the date now deemed by the relevant legislation as the date of actual notice. The application to the Court now was filed well after the period set out in s.477(1) of the Act.
The applicant has made a request for an order that the time for making the application be extended. However,
the application was filed on
3 January 2007, after the maximum “grace” period allowable under the transitional provisions. In this regard, the applicant’s request in her application, that the Court grant an extension of time for the filing of the application, was not made within 84 days of the (deemed) actual notification of the Tribunal’s decision as required by s.477(2)(a) of the Act, that is, by 84 days after 1 December 2005.
In all, this Court has no jurisdiction to hear this application.
Although not of assistance to the applicant, I note that the complaints in the application can be said, at most, to seek impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
The applicant plainly had actual notice of the decision prior to
1 December 2005. The application now filed on 3 January 2007 in relation to the Tribunal’s decision was made outside of the time limits set out in s.477(1) of the Act for the making of such applications, and outside the time limit set out in s.477(2) of the Act, in respect of which the Court could consider exercising discretion to extend the relevant time. I agree with the Minister’s submission that the application should be dismissed as incompetent. I dismiss the application on that basis.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Dawnie Lam
Date: 4 July 2007
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