S227 of 2003 v Minister for Immigration

[2007] FMCA 109

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S227 of 2003 v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 109

MIGRATION – Objection to competency – application out of time.

Migration Act 1958, s.477
Migration Litigation Reform Act 2005

SZBVC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 834

Applicant: S227 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2279 of 2006

Judgment of: Barnes FM

Hearing date: 2 February 2007

Delivered at: Sydney

Delivered on: 2 February 2007

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed as incompetent.

2. The applicant pay the costs of the first respondent fixed in the sum of $1,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2279 of 2006

APPLICANT S227 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This matter comes before the Court by way of a notice of objection to competency filed by the first respondent on 29 August 2006 objecting to the jurisdiction of the Court to deal with an application filed by the applicant on 27 August 2006 seeking review of a decision of the Refugee Review Tribunal (the Tribunal) affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.

2. It is contended for the first respondent that the application is out of time and that the Court has no power to extend the time for commencement of the proceedings as is sought by the applicant in his application of 17 August 2006.

3. The decision of the Refugee Review Tribunal was handed down on 12 July 2000 and it is contended that in light of the provisions of s.477 of the Migration Act 1958 and the Migration Litigation Reform Act 2005 transitional provisions this is a case in which the applicant is taken to have been actually notified of the decision on 1 December 2005 for the purposes of s.477 of the Migration Act. Section 477(1) is as follows:

   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 might be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.

4. Relevantly, the Migration Litigation Reform Act contains transitional provisions which apply where Tribunal decisions were made prior to the commencement of s.477 in its present form. By virtue of the transitional provisions, in particular item 42 of Part 2 of Schedule 1 to the Migration Litigation Reform Act, where, as in this case, proceedings are commenced on or after the commencement day (which by virtue of that Act is 1 December 2005) in relation to a migration decision made before the commencement day s.477 of the Migration Act applies as if the actual notification of the decision took place on the commencement day. Hence it is necessary initially to determine whether I am satisfied that actual notification of the Tribunal decision was given to the applicant before 1 December 2005.

5. In this case the application for review filed by the applicant states that the date of the notification of the decision was 12 July 2000.  In addition the application refers to prior applications by the applicant for judicial review in relation to the same Tribunal decision in the High Court of Australia and Federal Court of Australia.  In particular the applicant was a party to the Muin and Lie class action and that the proceeding was remitted to the Federal for further consideration.  The application states that proceedings commenced in the High Court on

   
   

   27 May 2003 pursuant to orders made by Gaudron J on 25 November 2002.  What is clear from this, without going into precisely how that came to be, is that certainly by no later than 2003 proceedings had commenced in relation to review of the same Tribunal decision in issue in these proceedings.  The applicant does not dispute that he has received actual notification of the Tribunal decision.  In oral submissions he merely stated that he had nothing to say about the law as he could not address that, but that he wanted the Court to find a way to remit the matter to the Tribunal for reconsideration.

6. In these circumstances it is reasonable to infer that the applicant had actual notice of the Tribunal decision, certainly no later than the commencement of the proceedings in the High Court which he stated in his application on 27 May 2003. Hence this is a case where actual notification of the decision was given before 1 December 2005. On that basis the applicant is taken to have been actually notified of the decision on 1 December 2005 for the purposes of s.477.

7. No issue was otherwise taken in these proceedings with the operation of s.477(1). The applicant sought an extension of time within which to commence these proceedings. However s.477(2) provides that:

   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 it is in the interests of the administration of justice to do so.

8. Subsection (3) provides that:

   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.

9. In this case the proceedings were commenced by the applicant on 17 August 2006.  In these circumstances the application for the extension of time was made outside the 84 day period from the actual notification which is taken to be 1 December 2005.  In these circumstances the period of time within which an application for an extension of time is not satisfied and indeed the extension of time permitted under s.472(2) from 1 December 2005 would not assist the applicant as his application was lodged outside that time.  (See SZBVC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 834). It has not been established that the Court can grant the extension of time sought by the applicant.

10. Accordingly the application of the applicant is out of time.  The Court has no jurisdiction.  The objection to competency must be upheld.

11. The applicant has been unsuccessful.  The respondent seeks costs in the sum of $1,000.  The applicant indicated that he has no funds and no work permit.  However his impecuniosity is not a reason for not awarding costs although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  9 February 2007