S240 of 2003 v Minister for Immigration

[2006] FMCA 1705

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S240 OF 2003 v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1705

MIGRATION – Application to review decision of Refugee Review Tribunal – objection to competency – application out of time.

Migration Act 1958, s.477
Judiciary Act 1903, s.39B
Federal Court of Australia Act 1976, s.23
Migration Litigation Reform Act 2005

Applicant S240 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 982
SZBJP v Minister for Immigration & Multicultural Affairs [2006] FCA 1579

Applicant: APPLICANT S240 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2327 of 2006

Judgment of: Barnes FM

Hearing date: 31 October 2006

Delivered at: Sydney

Delivered on: 31 October 2006

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed on 22 August 2006 is dismissed as incompetent.

2. The applicant pay the costs of the first respondent fixed in the sum of $1,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2327 of 2006

APPLICANT S240 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 6 September 2006 in connection with proceedings commenced by the applicant in this Court on 22 August 2006 seeking review of a decision of the Refugee Review Tribunal (the Tribunal) made on 27 October 1995 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.  The first respondent objects to the jurisdiction of the Court on the basis that the application of 22 August 2006 is out of time, the decision of the Tribunal having been made on 27 October 1995. 

2. It was submitted that the applicant was actually notified of the decision prior to 1 December 2005, that he had sought judicial review of the decision in earlier proceedings and that pursuant to Part 2 of Item 42 of Schedule 41 to the Migration Litigation Reform Act 2005, he was taken (for the purposes of s.477 of the Migration Act 1958) to have been actually notified of the Tribunal decision on 1 December 2005. On this basis, it is said that contrary to the requirements of s.477(1) of the Migration Act, the application to this Court was not made within 28 days of 1 December 2005. It was contended that the Court has no power to extend the time for commencement of proceedings beyond what would have been 23 February 2006 until 22 August 2006 when the application in this Court was filed.

3. It is relevant to note that in the application filed by the applicant on

   
   

   22 August 2006 he provided the date of the Tribunal decision but left blank the answer to the question as to the date when notification of the decision was received by him. He indicated in his application that he sought an extension of time for making the application under s.477 of the Migration Act 1958 (Cth). Under the heading “Other Court Proceedings” the applicant stated that he had made previous applications to review the Tribunal decision in the High Court of Australia and the Federal Court of Australia. The applicant was a party to the Muin and Lie class action in the High Court.  According to the application and an affidavit affirmed by the applicant on 9 October 2006, the proceedings commenced on 29 May 2003 pursuant to orders made by Gaudron J on 25 November 2002.   The matter was remitted to the Federal Court and was dismissed in the Federal Court. 

4. In an affidavit of 9 October 2006 the applicant referred to the objection to the competency of the application and gave what he stated he believed were “adequate reasons” for the application to be competent.  It is convenient to refer to that material before considering the first respondent’s submissions. 

5. In paragraph 10 of his affidavit the applicant stated that he had always applied for judicial review of the Tribunal’s decision within the statutory time frame.  He continued that he had never missed any of his applications for review, reiterated that he was involved in the Lie class action of 1999.  He described the “current proceedings” as those that he commenced on 29 May 2003 in the High Court pursuant to the orders of Gaudron J in the Lie class action.  The High Court remitted that matter to the Federal Court.  He contended that after the dismissal of his appeal in the Federal Court he had appealed the RRT decision in this Court and within the set time frame.  The applicant suggested that the current application was a “continuation” of the prior application for judicial review of the Tribunal decision.  He addressed the orders sought and his concerns with the Tribunal reasons for decision. 

6. Section 477(1) of the Migration Act 1958 (Cth) provides that an application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under s.476 in relation to a migration decision must be made to the court within 28 days of the actual, as opposed to the deemed, notification of the decision. In other words, under the Migration Act as it has stood since 1 December 2005 by virtue of the amendments made by the Migration Legislation Reform Act 2005, the court’s jurisdiction is now subject to a strict time limit. Under sub-s.(2) of s.477, the court may extend the 28-day period by up to 56 days if the application for such extension is made within 84 days of the actual as opposed to deemed notification of the decision and the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so. Section 477(3) provides that apart from this limited extension, the court must not make an order allowing, or which has the effect of allowing, an applicant to make an application outside of the time limit.

7. Section 477 applies not only to privative clause decisions but also, by virtue of the definition of migration decision in s.5 of the Migration Act, to a purported privative clause decision or a non-privative clause decision.

8. The transitional provisions in the Migration Legislation Reform Act apply where proceedings, as in this case, relate to a Tribunal decision made prior to 1 December 2005 and the proceedings in this Court are commenced after 1 December 2005. Item 42 of Schedule 1 to the amending Act provides that s.477 applies as if the actual notification of the decision took place on the commencement day, (that is, by section 2 of the Migration Litigation Reform Act, 1 December 2005).

9. In light of these provisions, the factual issue for the Court to determine is whether or not the applicant received actual notice of the Tribunal decision prior to 1 December 2005.  I am satisfied on the material before the Court that the applicant received actual notification of the Tribunal decision before 1 December 2005.  On the basis of the affidavit evidence from the applicant before the Court it is clear that he was a party to prior proceedings seeking judicial review of the Tribunal decision in issue in this case, not only as a member of the Lie class action commenced some years after the Tribunal decision but also thereafter in the individual action commenced in the High Court on

   
   

   29 May 2003 which, pursuant to the earlier orders made by Gaudron J, was remitted to the Federal Court and which, on the applicant’s own evidence, was dismissed by the Federal Court.  (See Applicant S240/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 982 and SZBJP v Minister for Immigration & Multicultural Affairs [2006] FCA 1579 at [3] per Black CJ).

10. It is clear that where an applicant has brought prior judicial review proceedings in relation to the particular Tribunal decision in issue that there can be no doubt that he received actual notification of the Tribunal decision prior to commencing those earlier proceedings. Hence the transitional provisions in the Migration Litigation Reform Act are applicable and the time limits in s.477 of the Migration Act apply as if the actual notification of the Tribunal decision took place on 1 December 2005. I note that there is no contention by the applicant that he was not, in fact, actually notified of the Tribunal decision. Indeed, in his affidavit he claimed that he was always “on time” in relation to judicial review of that decision. While the applicant suggested in his affidavit that the present proceedings were a “continuation” of the earlier proceedings, the earlier proceedings were disposed of by the Federal Court of Australia. These proceedings are separate proceedings. The only relationship to the prior proceedings is that the subject matter of the proceedings is the same.

11. I also note that in his application and affidavit the applicant sought an extension of time.  However the applicant is taken to have received actual notification of the Tribunal decision on 1 December 2005.  These proceedings were not commenced within 28 days of that date.  Further as the present application for judicial review was filed over 84 days after 1 December 2005 the Court has no discretion to extend the time in the manner sought by the applicant.

12. It is not necessary in these circumstances to consider whether it would be in the interests of the administration of justice to extend the time but I note that in this case there is no suggestion that this is a matter in which the strict time limits have in any way contributed to a denial of natural justice, given that the applicant has had a prior opportunity and has in fact sought prior judicial review in relation to the Tribunal decision in issue. 

13. The present application is clearly incompetent.  That is sufficient to dispose of these proceedings.  As the Court has no jurisdiction the objection to competency should be upheld and the application should be dismissed.

14. Moreover, as the Court has no jurisdiction it is not necessary to consider whether the present proceedings should be regarded as an abuse of process because of the prior proceedings. 

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  The notice of objection to competency has been upheld and the application has been dismissed.  The first respondent seeks costs in the sum of $1,250.  I consider that the applicant should pay costs and that this amount is appropriate in light of the nature of this and other similar matters.  

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  28 November 2006