S285 of 2003 v Minister for Immigration
[2006] FMCA 1145
•4 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S285 OF 2003 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1145 |
| MIGRATION – Application for summary dismissal of application − where application for review of RRT decision made out of time − whether court has jurisdiction to hear substantive application − whether constitutional issue to be decided relevant to the application. |
| Constitution of Australia, s.75(v) Federal Magistrates Court Rules 2001 Part 44, Rule 44.06(2)(a) Judiciary Act 1908, s.78B Migration Act 1958, s.477 Migration Litigation Reform Act 2005 ss.42, 40, Schedule 1 |
| STDB and Others v Minister for Immigration [2006] FMCA 561 |
| Applicant: | APPLICANT S285 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1628 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 4 August 2006 |
| Date of Last Submission: | 4 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2006 |
REPRESENTATION
| Applicant In Person |
| Solicitors for the Respondents: | Mr A. Markus Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $1,750.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1628 of 2006
| APPLICANT S285 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
There comes before me today an application by the Minister for me to dismiss these proceedings on the grounds that the court lacks jurisdiction to hear the application. Such an application can be brought pursuant to the provisions of Part 44, Rule 44.06(2)(a) of the Federal Magistrates Court Rules 2001.
The decision which the applicant seeks to have reviewed was a decision of the Refugee Review Tribunal made on 15 March 2000. In his application to this court filed on 7 June 2006 the applicant indicates that he received notification of the decision on 20 March 2000. The provisions of s.477 of the Migration Act 1958 (“the Act”) have the effect of excluding the jurisdiction of this court to hear applications for judicial review of migration decisions unless the application has been made to the court within 28 days of the actual (as opposed to deemed) notification of the decision or, where the court considers it is in the interests of the administration of justice so to do, an extended further period of 56 days. By virtue of the provisions of ss.42 and 40 of Part 2 of Schedule 1 of the Migration Litigation Reform Act 2005 (“Reform Act”) where a decision of the Refugee Review Tribunal is handed down before the commencement of the Act the date of notification is deemed to be the commencement date of the Act. The commencement date of the Reform Act was 1 December 2005.
The effect of these provisions is that the maximum extension of time that can be granted by the court is 28 days from 1 December 2005 plus a further 56 days. This takes the extension available into February 2006. This application was made in June 2006 well out of that period and therefore, as this court has held on numerous occasions, it is without jurisdiction to hear the application.
The applicant had nothing to say when faced with the submissions of Mr Markus for the Minister to the effect of the interpretation of the law that I have adumbrated. But he had on 2 August 2006 filed a notice of a constitutional matter under s.78B of the Judiciary Act 1903. He has not served that notice upon the relevant Attorneys General and so if I was satisfied that there appeared to be a constitutional matter to be argued I would be obliged to adjourn these proceedings. The matters that the applicant raises are as follows:
“Whether item 42 of schedule 1 part 2 of the Migration Litigation Reform Act 2005 is invalid if on its proper construction it attempted to oust the jurisdiction conferred on the High Court by s.75(5) of the Constitution.”
I cannot see how an Act of the Parliament which does nothing more than to deem a notification date can possibly attempt to oust the jurisdiction conferred upon the High Court by s.75(v) of the Constitution. The section in question has no relevant effect in relation to the jurisdiction of the court.
The second matter is:
“Whether s.477 of the Migration Act is invalid if on its proper construction it attempted to oust the jurisdiction conferred on the High Court by s.75(5) of the Constitution.”
Section 477 of the Act applies to an application to this court for a remedy in the exercise of the court’s original jurisdiction under s.476 of the Act. It does not in any way relate to the High Court. This court is a statutory court and as I said in STDB and Others v Minister for Immigration [2006] FMCA 561:
“As it is clear that the Parliament can give the Chapter III courts other than the High Court such jurisdiction as it wishes and limit that jurisdiction in any way it pleases it does not seem to me that there is any invalidity in the limitation imposed by section 476(2)(b).”
Although my decision related to a different section of the Act the views expressed apply equally to s.477.
The third matter raised by the application is:
“Whether s.477A of the Migration Act 1958 is invalid if on its proper construction it attempted to oust the jurisdiction conferred on the High Court by section 75(5) of the Constitution.”
Section 477A relates to the jurisdiction of the Federal Court of Australia and does not relate to the jurisdiction of this court. It is irrelevant for the purposes of this application, but in any event the views which I have expressed as to the ability of the Parliament to limit the jurisdiction of the Federal Magistrates Court apply equally to the Federal Court.
Finally, the applicant poses the question:
“Whether s.486A of the Migration Act is invalid if on its proper construction it attempted to oust the jurisdiction conferred on the High Court by s.75(5) of the Constitution”.
Section 486A of the Act does attempt to control the ability of the High Court to receive applications for review of decisions of the Refugee Review Tribunal by limiting the time in which those applications should be made in the same manner as the Act limits the time for applications in this court. That subsection may well be an attempt to oust the jurisdiction of the High Court but the applicant has not made an application to that court. He has made it to this court and therefore the constitutional matter proposed does not have any relevance.
In these circumstances I am not prepared to grant the applicant an adjournment whilst he serves the Attorneys-General of the States and Territories. I do not believe that a constitutional issue is raised that is in any way relevant to the functioning of this court or to the decision that this court has to make. I am satisfied that this court has no jurisdiction to hear the substantive application made in these proceedings and I therefore dismiss it. I order that the applicant pay the respondent’s costs which I assess in the sum of $1,750.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM.
Associate:
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