S354 of 2003 v Minister for Immigration and Anor (No.2) - [2006] FMCA 1929

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S354 of 2003 v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2006] FMCA 1929

MIGRATION – Refugee – application made out of time – no jurisdiction – application dismissed.

Migration Act 1958, ss.417, 476, 477, 477(1), 477(2), 477(3), 478, 486D.
Migration Litigation Reform Act 2005, Schedule 1 Clause 42(a)
Migration Reform Act1992, s.166E
Federal Magistrates Court Rules 2001, Rules 4.01
Federal Magistrates Regulations 2000, Regulations 5, 11
Corporations Act 2001, s.588FF(3)
Judiciary Act 1903, s.79.

Applicant S354 of 2003 v Minister for Immigration & Anor [2006] FMCA 1579
Applicant S354 of 2003 v Refugee Review Tribunal [2005] FCA 1758
SZIVA v Minister for Immigration & Anor [2006] FMCA 1494
WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190
SZICV v Minister for Immigration & Anor [2006] FMCA 1063
Abidin v Minster for Immigration & Multicultural Affairs [2002] FCA 236
Hong Ye v Minister for Immigration & Multicultural Affairs (1998) 153 ALR 327
Tolcher v Gordon [2005] NSWCA 135

Applicant:

APPLICANT S354 OF 2003

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 598 of 2006

Judgment of:

Nicholls FM

Hearing date:

11 December 2006

Date of Last Submission:

11 December 2006

Delivered at:

Sydney

Delivered on:

22 December 2006

REPRESENTATION

Counsel for the Applicant:

Mr. King (Direct Access)

Counsel for the Respondents:

Mr. Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed in upholding the respondent’s Notice of Objection to Competency.
The applicant to pay the first respondent’s costs set in the amount of $6,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 598 of 2006

APPLICANT S354 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

I have before me an application filed on 24 February 2006 which seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 October 2003 to affirm the decision of the delegate of the respondent Minister to refuse an application for refugee status in Australia.
Background
I also have before me the Minister's Notice of Objection to Competency filed on 10 March 2006 and the Minister's Response of the same date. The Minister applies for the application to be dismissed on the basis that the Court lacks jurisdiction to try this matter because of s.477 of the Migration Act 1958 (“the Act”). This is the matter before the Court now.
Following a hearing on 31 August 2005, I dealt with the issue of a Notice to Produce documents served on the Minister in this matter, see Applicant S354 of 2003 v Minister for Immigration & Anor [2006] FMCA 1579 (“the earlier Judgement”). I adopt what I said there for the purposes of this Judgement to the extent that what I set out there is relevant to the issue before the Court now, and in particular as it relates to what also subsequently unfolded at the hearing before me on

11 December 2006, on the issue of the Minister’s objection to competency.
At the hearing of 11 December 2006 Mr. Reilly again appeared for the Minister, and Mr. King, again, appeared for the applicant.
Issues
At the conclusion of this hearing there were two issues for the Court’s consideration:
a)Whether the applicant had actual notice (see the earlier Judgement at [22] to [25] in particular) of the Tribunal's decision prior to 1 December 2005, such that in circumstances where an application made after the expiry of the period of 84 days referred to in the provisions of s.477(2) of the Act (see in particular [18] to [21] of the earlier Judgement) would mean the Court has no jurisdiction to try the application.
b)As it arose during the hearing on 11 December 2006, whether the applicant “made” his application to the Court on 23 February 2006, such that it would come within the time limit set out in s.477(2) of the Act
Minister’s Evidence
Mr. Reilly read into evidence:
a)The affidavit of 29 August 2006 Ms. Hervee Dupont Dejean, a solicitor employed by the Minister's solicitors, with annexures:
i)“HD1” being a copy of an affidavit filed by the applicant on 20 June 2003 in the High Court of Australia, annexing a draft order nisi referring to the Tribunal's decision of 26 October 1993, also annexed.
ii)
“HD2” being a copy of orders of Moore J, made on

29 November 2005 in relation to Applicant S354 of 2003 v Refugee Review Tribunal [2005] FCA 1758, and His Honour's reasons for Judgement in that matter.
b)The affidavit of Ms. Hervee Dupont Dejean of 10 November 2006 annexing relevant documents obtained from the Tribunal's file in relation to the applicant, and the file of the Minister's Department in relation to the applicant:
“Annexure A: application for review received by RRT 18 July 1993.
Annexure B: letter from the RRT to the applicant solicitor dated 29 October 1993 enclosing the decision of the RRT.
Annexure C: change of address details dated 8 May 2003
Annexure D: release of documents form signed by the application on 8 May 2003.
Annexure E: letter from Chris Muthu and associates dated 7 May 1998 to the department with enclosures.
Annexure F: letter from the then Minister for Immigration and Multicultural affairs dated 3 July 1998 to Chris Muthu and associates.
Annexure G: application for bridging visa dated 11 May 1999 signed by the applicant.
Annexure H: document headed “your detention" signed by the applicant on 11 July 2003.
Annexure I: application for bridging visa dated 12 July 2003 signed by the applicant.
Annexure J: facsimile to IDC Villawood from the department dated 18 July 2003 enclosing the decision record of bridging visa refusal.
Annexure K: letter to the applicant enclosing decision of Migration Review Tribunal in relation to the applicant’s bridging visa dated 30 July 2003.”
The affidavit of 10 November 2006 was read without objection from Mr. King. Mr. King however objected to paragraphs two and three of the affidavit of 29 August 2006 on the basis that it did not appear that the witness was familiar with the subject matter, or was able to give evidence of the relevant matter of her own knowledge. I admitted paragraphs two and three on the basis that this was ultimately a matter for Mr. King to explore in any cross-examination. During cross-examination Ms. Dejean gave evidence that although she had been a solicitor with the respondent’s solicitors for 13 years, she only became the solicitor responsible for this particular case in February 2006, and had no involvement in this matter prior to that time. Mr. King renewed his objections to paragraphs two and three of the affidavit of 29 August 2006 on the basis that she had no actual knowledge of the events relevant to this case prior to February 2006. However, I understood Ms. Dejean’s evidence to be that she had examined the relevant file and that paragraphs two and three of the affidavit of 29 August 2006 were based on the examination of the file, the extraction of documents that she saw relevant to the issue (as it was understood as at 29 August 2006) and the presentation of those documents to the Court and the applicant, rather than any attempt at asserting she had further knowledge. I allowed paragraphs 2 and 3 of the affidavit (and the annexures) into evidence on the basis that what was asserted at paragraphs 2 and 3 was derived from Ms. Dejean’s examination of the relevant file, and did not purport to be otherwise.
Applicant's evidence
The applicant gave evidence that he had sworn an affidavit in these proceedings dated 1 December 2006. This was filed in Court at the hearing on 11 December 2006. It had two annexures being:
a)Annexure “A”: A copy of the application form “stamped” by the Court Registry on 24 February 2006.
b)Annexure “B”: being an affidavit affirmed by the applicant on 23 February 2006. I should just note to avoid any confusion, that Annexure “B” to the affidavit of 1 December 2006 is a copy of the affidavit filed and stamped in the Court’s Registry on 24 February 2005, and had attached to it a copy of the Tribunal’s decision.
Mr. King also sought that yet another affidavit affirmed by the applicant on 23 February 2006 be marked for identification. While there was some dispute from Mr. King as to whether this “second” affidavit of 23 February 2006 had been filed in Court, I could find no record of it on the Court's file. Nonetheless the document was marked for identification (“MFI No.1”). As Mr. King submitted it was not intended that it be adduced into evidence for any purpose other than the fact that the applicant had made this affidavit on that date. There was no objection by Mr. Reilly on this basis and it was so marked.
The applicant was cross-examined by Mr. Reilly on his evidence. In essence, and relevantly this was that on the afternoon of 23 February 2006 that he attended at the Court’s Registry and sought to “lodge” his application. However, he did not have with him the required fee to be paid upon the “filing” of the application. The applicant's evidence was that he did not have the requisite funds and was unable to obtain the funds immediately, or on that day, because he did not have “any money at all”, and would have had to have borrowed from friends. The applicant's evidence was that the “clerk” to whom he spoke at the Court’s Registry made inquiries by way of a telephone call in the applicant’s presence and that following advice that he received, the applicant was told “you will have to go away and fill out this form which I will give you and bring it back tomorrow”. I understand that applicant’s evidence to be that these events accured at the counter of the Court’s Registry (at Queen’s Square, Sydney). The form which he was given appears to have been an application for a waiver of the fee. The applicant’s evidence was that he was also given back his documents (which were of course the application form and the first affidavit of 23 February 2006). The applicant stated that he was directed that he would have to go away, fill out the fee waiver application form and to “bring it back tomorrow”. The applicant left the Court’s Registry, was able to borrow money from a friend, and returned the next day (24 February 2006). He stated that he “re-lodged the documents” with “cash for a filing fee”. The documents were then “stamped”, and subsequently served on the respondent.
Actual Notice - Submissions
Mr. Reilly's submission was that the documents attached to the affidavits of Ms. Dejean allow the Court to draw the clear inference, on the balance of probabilities, that prior actual notification of the Tribunal's decision occurred before 1 December 2005 (being the relevant date for the purposes of s.477 and taking into account Schedule 1 Clause 42(a) to the Migration Litigation Reform Act2005 (“the Reform Act”) (see [18] to [21] of my earlier Judgement).
Mr. King's submission was that actual notification has not been “proven” by the respondent Minister, particularly as there was nothing in the documents attached to the affidavit of Ms. Dejean of 10 November 2006 (and Mr. King emphasised to the Court that Ms. Dejean would have “diligently gone through” the relevant file and produced “everything which might possibly be relevant”). He sought to distinguish the documents attached to the affidavit of 10 November 2006 from the documents attached to her affidavit of 29 August 2006 because the later affidavit was provided in response to those parts of the Notice to Produce which the Court upheld (see my earlier Judgement at [26]).
He referred to FM Smith in SZIVA v Minister for Immigration & Anor [2006] FMCA 1494 (“SZIVA”) at [24]:
“There is no doubt that the Migration Act encompasses a technical concept of "notification", and that the use of that word in s.477 is capable of requiring conformity with the various substantive and procedural requirements of the Migration Act for notification of the "migration decisions" which might become the subject of a judicial review application to this Court. If the word conveys this technical meaning, then it may not be enough for an applicant only to have received actual communication of the "decision" which he seeks to challenge. Time would not commence to run unless or until the decision-maker had also complied with all legal requirements, if any, as to notification on the person making the judicial review application, including as to accompanying reasons, advice on appeal rights, and manner and time of service, etc.”
Mr. King’s submission was that it was not clear, and it had not been proven to the extent “required” by the observations made by FM Smith, as to whether or not there had been actual notice to the applicant of the 1993 decision itself. Mr. King emphasised that drawing on what was said in SZIVA that it is not sufficient, for the purposes of showing the giving of actual notification, that merely showing that the applicant had possession of a copy of the decision, or referred to a copy of the decision, is such as to make it relevant notification in the sense of complying with all the relevant legal requirements.
Actual notification of the Tribunal's decision
The parties differ on the meaning, and in particular the application, of “the actual (as opposed to deemed) notification of the decision” contained in s.477(1) and s.477(2). Mr. Reilly's position is that actual notice would have been received by the applicant given the documents before the Court now as annexed to the affidavits of Ms. Dejean. Mr. King's position, as clarified with him at the second hearing before the Court now, was that he relied on what Smith FM. said in the SZIVA at [24] under the heading of “notification”, and as quoted above. As I understood Mr. King's submission was that it has “not been proven to the extent required” as to whether or not there was actual notification of the Tribunal's 1993 decision “itself”.
Actual Notification
In my view, and with respect, paragraph [24] in SZIVA needs to be understood in the whole of the context of FM Smith’s analysis of the issue of “actual (as opposed to deemed) notification of the decision”. While His Honour was faced with a factual situation where the Tribunal decision was handed down prior to the amendments which were made to the Act with effect from August 2001, nonetheless as His Honour said at [15]:
“However, it is useful when interpreting the 2005 amendments to consider the effect of the 2001 amendments. This is because the 2001, and still current, provisions which were introduced by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth) assist to explain the concept of "actual notification" introduced by the 2005 amendments.”
Relevantly, from the Court’s analysis in SZIVA, two paragraphs in particular represent His Honour’s opinion as to this explanation:
“[19] In my opinion, it is clear that these deeming provisions in relation to the effecting of service significantly explain the reference to "actual (as opposed to deemed) notification" in s.477. These words have the effect that reference may not be made to the Migration Act provisions which artificially deem the receiving of notice of decisions, when considering the competence of applications invoking the Court’s jurisdiction defined by ss.476 and 477.”
“[23] From this background, I turn to consider the interpretation of "actual (as opposed to deemed) notification of the decision" in s.477. A tension immediately becomes apparent, when considering the effect of the words "actual (as opposed to deemed)" and "notification of the decision". This is that "notification" might appear to invoke, and require observance of, the Migration Act’s many technical and artificial procedures in relation to service of a decision. Yet "actual" might appear to suggest a disregard of those requirements, and to require consideration only of whether, in fact, the decision has been communicated to the applicant. As I shall explain, in my opinion, the tension should be resolved by interpreting s.477 to require both of these things before the time limit takes effect.”
I also note what was said in SZIVA (with reference also to SZICV v Minister for Immigration & Anor [2006] FMCA 1063 (“SZICV”)) in relation to “notification” at [26] and [28]:
“[26] In WACB (supra) [WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50] the High Court construed the meaning of the phrase "within 28 days of the applicant being notified of the decision", appearing in an earlier time limit on the migration review jurisdiction of the Federal Court (see SZICV at [13]). The majority judgment traced the history of this provision, and accepted that notification could not occur unless there was compliance with a requirement of the Migration Act that a statement of reasons should accompany the giving of reasons. The majority judgment also construed the concept of "being notified" as requiring physical delivery to the appellant, while noting that the 2001 deeming provisions were inapplicable to the matter before them (see [40] of their judgment).”
“[28] The approach taken in WACB therefore requires an interpretation of the reference in s.477 to "notification" as encompassing only a notification which has complied with all essential requirements attaching under the scheme of the Migration Act and Regulations, if any, to a notification of the type of decision sought to be reviewed on the person applying for judicial review. This still leaves the added requirement of whether formally correct notification has also resulted in "actual" notice.”
The task for the Court therefore was identified as:
“[30] I must now consider the content of the added requirement that a date must be identified when a technically sufficient notification has also achieved ‘actual notification’.”
With respect, I am persuaded by His Honour's “opinion” and adopt the approach set out in SZIVA from paragraphs [16] to [30] of that Judgment.
Actual Notification – technically sufficient
On this basis therefore the first question for the Court now is whether a technically sufficient notification that is, a formally correct notification, was achieved in this case, as actual notification.
Very little by way of submission was made by either party on this question. Mr. King made reference that it had not been “proven” as to whether or not there was actual notice of the 1993 decision, and any relevant accompanying documents. Mr. Reilly relied on the inference of actual notice to the applicant deriving from documents that the applicant had filed in the High Court and other documents in the annexures to the affidavits of Ms. Dejean.
From what is before the Court:
a)The application to the Tribunal was received by it on 18 July 1993 (see the affidavit of Ms. Dejean of 10 November 2006 at annexure “A”).
b)The Tribunal's decision was dated 26 October 1993 (see page 20, and page 29, of the annexure to the affidavit of 10 November 2006 of Ms. Dejean, which shows the decision dated 26 October 2005 and was subsequently certified on 28 October 1993, see also the applicant's affidavit affirmed on 23 February 2006, attaching a copy of the Tribunal's decision record dated 26 October 1993).
The current provisions of the Migration Act relating to the giving and receiving of review documents (Division 7A of the Act) did not become operational until 10 August 2001. At the relevant time in 1993 the notification of the Tribunal decision was governed by s.166E of the Act which for the relevant time of the application for review before the Tribunal, was inserted by the Migration Reform Act1992 (Number 184 of 1992), and was relevantly in the following terms:
“Refugee Review Tribunal to record its decisions etc. and to notify parties
SECT 166E
(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
(2) The Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection (1) within 14 days after the decision concerned is made…”
[Secretary meant the Secretary to the first respondent’s Department]

The evidence before the Court now in relation to this issue is that set out at annexure “A” and annexure “B” of the affidavit of Ms. Dejean of 10 November 2006. Relevantly:
a)The applicant advised the Tribunal in his application for review that he was being assisted by a solicitor and that he wanted copies of the correspondence from the Tribunal to go to his solicitor (see pages three and four to the annexures to the affidavit).
b)The Tribunal wrote to the applicant, care of his then solicitor, by letter dated 29 October 1993 (see page 13 of the annexure, and page 19, attaching the Tribunal's decision and reasons for decision, pages 20 to 29).
In my view these documents show that the Tribunal did comply with the relevant statutory requirements in force at the relevant time. With the requirement of s.166E in mind the Tribunal made its decision, set out the decision on review, set out its reasons for the decision, and set out its findings in relation to material questions of fact, and referred to evidence, and other material, being claims in particular, on which the findings were based. The Tribunal gave the “Secretary” a copy of this statement. The letter of 29 October 1993 makes specific reference to a copy having been provided to the Department of Immigration and Ethnic Affairs. In my view the giving of the decision record to the Department, is giving the copy to the Secretary of the Department for the purposes of s.166E(2).
The Tribunal sent the letter to the applicant care of his solicitor. The solicitors in question had both a street address and a post office box address (see page 12 to the annexures to Ms. Dejean’s affidavit of

10 November 2006). This document was obtained by Ms. Dejean from the Tribunal's file (see paragraph 2 of her affidavit of 10 November 2006). This document was, in context of what is reproduced at pages 3 to 15 of the annexure to the affidavit, part of the documentation provided to the Tribunal with the application for review. As was the letter of the Minister’s delegate of 30 June 1993 (also sent to the applicant’s solicitors, see pages 7 and 11 of the annexure).
The provenance and veracity of this material before the Court now was not challenged with any evidence to the contrary, nor indeed any assertions to the contrary by the applicant, other than the submissions as to the insufficiency of this documentation to show actual notice. In my view there is sufficient documentation to show that the Tribunal at the relevant time complied with the relevant statutory requirements (as bare as those requirements appear in comparison to subsequent, and the current requirements of the Act in this regard), in that relevantly its decision record was given to the applicant by sending it to him, well within the 14 days required by the legislation at the time, to solicitors acting for him, and to an address of the solicitors provided in the material to the Tribunal. In all therefore the “technically sufficient notification” has been given. The issue remains however whether actual notice of the decision as required by s.477 also took place.
Actual Notice (further to technical notification)
Mr. King submitted that there is no evidence before the Court now to show when the applicant personally received actual notice of the Tribunal's decision. Mr. Reilly submits that, at least on the balance of probabilities, there is sufficient material before the Court to clearly infer that the applicant did receive actual notice, that is notice of the existence of the decision, and the decision record. Also I note that it was not asserted for the applicant, nor was any evidence provided, that the applicant did not receive the actual notice of the decision, or a copy of the decision record itself, at the time when it was sent to him, care of his then solicitor.
For the reasons set out below I accept Mr. Reilly’s submission that at least, as of 20 June 2003, when the applicant filed his application to the High Court seeking prerogative writs in relation to this Tribunal's decision the applicant would have not only have had actual notice of the Tribunal's decision to have done so, but, given that a copy of the Tribunal's decision was annexed to the applicant's affidavit filed in the High Court, the applicant clearly had both actual notice of the decision, and the decision record itself. As at 20 June 2003 at least, he had actual notice. This was clearly prior to 1 December 2005 (with reference to s.477 and Schedule 1 Clause 42(a) of the Reform Act – see paragraph [18] to [21] of my earlier Judgment).
Further, I am persuaded that such an inference as Mr. Reilly asks the Court to draw can be drawn, at least on the balance of probabilities, by other material put before the Court now:
a)By letter dated 7 May 1998 the applicant sought, through migration agents at the time, the intervention of the then Minister for Immigration and Multicultural Affairs (see pages 16 to 18 of the annexure to the affidavit of Ms. Dejean of 10 November 2006). The relevant letter asserts that the migration agency is acting on behalf of the applicant (page 16.7), refers to a Tribunal's decision, and that a copy of the decision has been attached to the letter to the Minister (page 17.10) and seeks exercise of the Minister's discretion pursuant to s.417 of the Act. Plainly, s.417(1) enables the Minister (but does not compel the Minister) to substitute “for a decision of the Tribunal… a decision that is more favourable to the applicant”. This clearly supposes a situation that the Tribunal decision must predate any exercise of the Minister's power. The applicant's then representative, who states that he was acting on behalf of the applicant, provided in the request to the Minister not only a reference to the Tribunal’s decision, but a copy of the decision record.
b)The migration agency, in its letter to the Minister of 7 May 1998, also enclosed a copy of the Tribunal's letter of 29 October 1993 (see paragraphs [25] to [27] above) addressed to the applicant and sent care of his previous solicitor (see page 19 of the annexure).
c)
The applicant sought, and was granted a release of the Tribunal decision pursuant to a request made by him on 8 May 2003 (see page 15 to the annexure of the affidavit of Ms. Dejean of

10 November 2006).
d)In an “Application for bridging visa E – subclass 050” (reproduced at pages 45 and 46 of the annexure to the affidavit of Ms. Dejean of 10 November 2006) dated 12 July 2003 the applicant asserted in that application that he had been refused a protection visa, that he applied for review (see answers to question 15), and that the Tribunal refused this application (see answers to question 17), and that the applicant was “currently awaiting outcome of judicial review (High Court) (see answers to question 20).
e)The applicant himself asserts in the application form before the Court now that in answer to the question:
“Date when notification of the decision was received by the applicant:”
The applicant response:
“29/10/1993”
f)I note also that a copy of this form was provided as annexure “A” to the applicant's affidavit of 1 December 2006, filed in Court at the hearing before me on 11 December 2006. The applicant has therefore put this assertion before the Court also by way of his own evidence.
In all therefore, the Court is satisfied that, at least on the balance of probabilities, on the material before the Court that the applicant had actual notice of the Tribunal's decision at some time prior to

1 December 2005. If not on 29 October 1993 (his own evidence asserts that it was), and if not as of the other dates as set out above, then certainly by 20 June 2003 when he commenced proceedings in the High Court by way of sworn affidavit complaining of the Tribunal's decision, a copy of which was annexed to that affidavit.
I should note that to the extent that the above relies on the material put before the High Court (and subsequent disposition of the matter by the Federal Court), and that this was material annexed to the affidavit of Ms. Dejean of 29 August 2006. Mr. King pressed that the Court should not rely on that affidavit and its annexure, in that he took objection to paragraphs two and three of the affidavit. (This is a matter on which I have previously referred in this Judgment and decided, see paragraph 7). His complaint was also that that affidavit was not produced to the Court by way of response to the Court's Judgement in relation to the applicant’s Notice to Produce. I cannot see that the Minister was limited in any way to only producing documents by way of affidavit in response to the Judgement on the Notice to Produce. But in any event, the affidavit of 29 August 2006 of Ms. Dejean was filed in response to orders made by the Court on 24 August 2006 requiring the Minister to file and serve any evidence relating to paragraph 4 of the Minister’s formal Response in this matter filed on 10 March 2006. That part of the Response dealt with s.486D(1) of the Act, as it related to these proceedings. I cannot see that the Minister was not entitled to file this evidence given that it was done, if for no other reason, by order of the Court and was properly relevant to an issue before the Court (see also paragraph [80] below).
The Court therefore is satisfied that the applicant was notified of the decision in the sense as required by relevant legislation at the relevant time of the making of the application to the Tribunal and the making of its decision. Further, that the applicant had actual notice of the decision and the decision record at some time prior to 1 December 2005.
Section 477(1) of the Act
Section 477(1) requires that an application for a remedy in the exercise of the Court's jurisdiction under s.476 of the Act in relation to a Tribunal decision must be made to the Court within 28 days of the “actual (as opposed to deemed) notification of the decision”. I have found that the applicant did have actual notice of the Tribunal’s decision at some time prior to 1 December 2005 (the relevant date as a result of the Reform Act). The applicant was therefore required to have made his application to the Court within 28 days of 1 December 2005. This has not occurred. Nor does the applicant contend otherwise.
Section 477(2) of the Act – Extension of Time
The issue remains however as to whether the Court should, in this case and in the circumstances set out below, extend this 28 day period by a period of up to 56 days if it is satisfied that it is in the interests of the administration of justice to do so pursuant to s.477(2)(b) of the Act.
Up until the second hearing before the Court in this matter on

11 December 2006, that is the hearing relating to the Minister’s Notice of Objection to Competency, the applicant had provided no evidence (or even indication) to say that he had made his application to the Court other than on 24 February 2006. This date is outside the 84 day period contemplated by s.477(2)(a). In my view the effect of s.477, and the transitional provisions which accompanied its introduction, are that for a decision of the Tribunal dated before 1 December 2005 and for which notice was received before 1 December 2005, any application to this Court in relation to such a decision, if made to this Court on and after 24 February 2006 is incompetent if the Court can be satisfied that actual notification occurred prior to 1 December 2005.
Minister’s Burden
In this I have taken the view that it is for the Minister to shoulder the burden to show that the application should be dismissed as incompetent. I see this burden as applying to the Minister being required to show that the applicant had actual notification of the Tribunal decision prior to 1 December 2005. (With reference to WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190 – albeit the High Court was looking at a previous statutory regime but in my view analogous on the issue of the burden to what is before the Court now, at [9]: “the Minister (has) the burden of establishing lack of competency”).
A burden, which I have already found the Minister has discharged on the balance of probabilities in relation to actual notification. But equally, in my view, the Minister is unable to succeed on her objection to competency if the Court cannot determine that the application to it was made on or after 24 February 2006. Had the state of the evidence before the Court continued to be as put up until the commencement of the second hearing in this matter on 11 December 2006, then the Minister would have succeeded in establishing a lack of competency, as in my view, the best evidence at that time was that the applicant had “made” his application to the Court on 24 February 2006. “Made” therefore, in circumstances first, outside the 28 day period allowed in s.477(1), and second, outside the further period of 56 days (total “within 84 days”) provided for in s.477(2). Given that an application “made” on 24 February 2006 is outside the period for which the Court could consider the exercise of its discretion pursuant to s.477(2)(b), and given the express prohibition contained in s.477(3), this would lead, in my view, to any such application being incompetent. Any application for an extension of the time in s.477 can only be considered for the period of after 28 days up to a further 56 days of the actual notification of the Tribunal’s decision (which in the circumstances of this case was 1 December 2005 to 23 February 2006).
Applicant’s evidence
However, at the hearing on 11 December 2006 the applicant provided evidence (I have already referred to some of this evidence elsewhere in this Judgement, but repeat here for ease of reference on this issue) in the form of:
a)an affidavit made on 1 December 2006 which annexes:
i)The application form to the Court stamped on 24 February 2006 by the Court’s Registry.
ii)A copy of the applicant’s affidavit of 23 February 2006 (stamped by the Court’s Registry on 24 February 2006)
The applicant’s evidence from this is:
a)
That the applicant attended the office of a solicitor on the morning of 23 February 2006 (see paragraph 4 of his affidavit) to arrange the swearing of an affidavit which is provided as annexure “B” to the affidavit of 1 December 2006 (which is the affidavit which was stamped by the Court’s Registry on

24 February 2006, at the same time as it stamped the application form to the Court).
b)
At the hearing before me Mr. King tendered, and I marked for identification, another affidavit made by the applicant on

23 February 2006, going also to the issue that he attended to preparing for the making of his application at some time on

23 February 2006.
c)
The applicant attended the Court’s Registry at about 3 p.m. on

23 February 2006 (paragraph 5 of the affidavit of 1 December 2006).
d)That after waiting some 15 minutes in the queue he approached a “clerk” who examined his documents (being the application form and the “first” affidavit of 23 February 2006).
I note in particular paragraphs 8 and 9 of the affidavit of 1 December 2006 as they directly go to the issue, that the applicant now asserts before the Court, that he in fact “made” his application, or at least attempted to make his application, on 23 February 2006 (that is within, albeit on the last day, but nonetheless within, the period contemplated by s.477(2)), and was not able to do so because of the actions of the Registry staff:
“8. After examining the documents the clerk said to me ‘Do you have the fees to pay the Court for the filing.’ I said ‘No. Unfortunately I have no money of my own. Can I have a fee waiver?’ He then made a telephone call in my presence and asked ‘Should we take the documents where there is no formal fee waiver?’ The other person said something and then he said to me ‘You will have to go away and fill out this form which I will give you and bring it back tomorrow.’ He gave me my documents which are in annexure ‘A’ and ‘B’ back and the form which I then took away.
9. I looked at the form and found that to me it was very complicated so I was unable to fill it in on the spot and because the clerk had said I could bring it back the next day. Later that day I asked a friend later to lend me some money to pay the filing fee as I found it very difficult to fil [sic: fill] in. I then returned the next day to the Registry and re-lodged the documents although I believe that I did so with a different clerk together with cash for a filing fee. The documents were then stamped and I served them on the respondents.”
The applicant confirmed this evidence before the Court. In cross-examination the applicant explained that he went to the Court Registry “to lodge my application”, but that “it was impossible” because he did not have the money to pay the relevant fee, and was not able to fill out the fee waiver (form) and that therefore “they didn't accept it”. Further, that the documents were returned to him, and were not kept by the Registry staff on 23 February 2006. He then said that he “lodged” the documents on 24 February 2006 when he had the money to pay the fee. The applicant also explained that he was unable to obtain the money on the 23rd because he had insufficient funds in his own bank account, and had to borrow from a friend.
There was nothing in the applicant's demeanour, nor in what he said, to cause the Court to doubt the truth of the evidence that the applicant gave. The signing of both the affidavits of 23 February 2006 (Annexure “B” to the applicant’s affidavit of 1 December 2006, and MFI No.1) before a solicitor at “Emrington” (as on the affidavit of 23 February 2006 or “Ermington” as in the affidavit of 1 December 2006) support the applicant’s evidence that he attended to the preparation of his documents on the morning of 23 February 2006. While there was no corroborating evidence of what the applicant had said occurred at the Court’s Registry in the afternoon (in this context I note that MFI No.1 goes to corroborate the issue that the applicant attended at the offices of the solicitor in the morning of 23 February 2006, but cannot be said to extend to cover his activities on the afternoon of the 23 February 2006). But nonetheless I accept the applicant’s evidence on the issue of what he said transpired when he attended at the Court Registry on

23 February 2006.
Meaning of “made”
The issue now therefore is given the language used in s.477, whether what occurred on the afternoon of 23 February 2006 means that the application to the Court was “made” on that date, and not the day after. The importance of course being that the applicant has in his application to the Court applied for an extension of time for the making of the application pursuant to s.477 of the Act such that if it was made on 23 February 2006, and what occurred on that date can be said to have led to the making of the application on that date, then the Court is required to consider the exercise of its discretion pursuant to s.477(2)(b).
Mr. Reilly sought to distinguish the legislature’s use of the word “made” in s.477 to the word “lodged” which was the word applicable to time limits used in the Act previously. By way of example he referred to Abidin v Minster for Immigration & Multicultural Affairs [2002] FCA 236 (“Abidin”).
I note that in Abidin (before the Full Federal Court):
a)The applicant was out of time under the “old” s.478 of the Migration Act to lodge an application with the Federal Court.
b)The applicant placed a letter in the delivery box at an immigration detention centre within time, but the relevant authorities failed to forward it the Court Registry within time.
c)The applicant sought to argue that “he lodged” his application when he had done all that he was able to do to achieve substantial compliance with the stipulated requirements within the relevant period” (at [7])
d)The submission was in that case that the application is only “lodged” when it came into the possession of the Registry or Registry staff. Reliance was placed on Hong Ye v Minister for Immigration & Multicultural Affairs (1998) 153 ALR 327 (“Hong Ye”).

In Abidin the Court found:
a)At [11]:
“In our opinion, an application is not lodged until it comes into the possession of a Registry or the staff of a Registry. This is the inevitable result of the ordinary meaning of the words of the provision (Francis v City of Ringwood (1978) 54 LGRA 323). There is no such concept as constructive lodgement although, as Hong Ye shows, there may be room for debate as to whether in particular circumstances in which a document comes to a Registry it is ‘lodged’.”
b)At [12]:
“It is correct that the precise point at issue here did not arise for decision in Hong Ye. Indeed, that decision was very favourable to applicants in construing "lodged" as a sui generis concept, different from the filing of an application to commence proceedings. Nonetheless, the substratum of that decision was that lodgement involved at least receipt at the Registry and this was in accord both with the authorities referred to in Hong Ye and with the numerous later decisions of single judges to which the respondent referred.”
c)The application was ultimately dismissed
Mr. Reilly submitted that the current form of the Act has deliberately used a word different to “lodged” when it came to what is required for time for the making of an application to be counted. Plainly, the words used now are not “lodged an application”, but “made an application”. Mr. Reilly further submitted that he had not as yet found any authority directly construing “made” in the context of s.477 of the Act. But he submitted that in this context “made” means “filed”, and that it could not mean anything less than “filed”, and did not mean some form of presentation which is not “filed”.
Mr. Reilly referred the Court to:
a)Rule 4.01(1) of the Federal Magistrates Court Rules 2001 (“the Rules”:
“Unless otherwise provided in these Rules, a proceeding must be started by filing an application in accordance with the form of application set out in Part 1 of Schedule 2.”
b)Regulation 11 of the Federal Magistrates Regulations 2000 (“the Regulations”):
“FEDERAL MAGISTRATES REGULATIONS 2000 - REG 11
Consequence of non-payment of fee
(1) A document must not be filed, and an action mentioned in an item in Schedule 1 must not be taken, unless the fee payable for the filing or the action has been paid, waived or deferred.”
c)(Although not referred to by Mr. Reilly) I also note Regulation 5(1):
“FEDERAL MAGISTRATES REGULATIONS 2000 - REG 5
When payment due
(1) A fee for filing an application or other document must be paid when the document is filed.”
51.Mr. Reilly submitted therefore that given, in particular, what is in (b) above (Regulation 11 of the Regulations) there was no discretion in the Registry staff to accept the applicant's documents for filing on 23 February 2006, given that there is an express prohibition in the Regulations to documents, by way of an application, being filed in the Registry unless they are accompanied by the relevant fee.
52.Further, without any particular reference to any dictionary, submitted that the ordinary meaning of “making” an application requires not only an act of an applicant, but also an act of the Court in accepting an application for filing. Given, he submitted, that “lodging” in its “previous version in s.478” had been interpreted by the Court as really just an act of an applicant, and so being distinct from filing, the changing of the word “lodged” to “made” is of significance, and should in those circumstances be interpreted as “filing”.
53.In this regard he submitted that there was “some authority" although not directly on point, in the matter of Tolcher v Gordon [2005] NSWCA 135 (“Tolcher”), a matter in the New South Wales Court of Appeal that has gone to the High Court (I note that following the hearing before me the High Court handed down its Judgement in this matter. The appellant in this case was granted special leave to appeal to the High Court on the issue of whether a section of the Corporations Act 2001 (Cth) (“the Corporations Act”) “otherwise provides” within the meaning of s.79 of the Judiciary Act 1903. The Court dismissed this appeal).
I note that to the extent relevant to the issue before the Court now, Tolcher:
a)Involved a company liquidation case where the liquidators were seeking to recover money from the sole director.
b)The liquidator instituted proceedings in the New South Wales District Court 3 days prior to the expiration of the limitation period.
c)There was a delay in effecting service and when the appellant (liquidator) sought to have an extension of time the liquidator was advised that the matter had been dismissed.
d)Section 588FF(3) of the Corporations Act concerned the limitation period for the making of an application.
e)The question was whether an application was made by filing alone, or whether service was also required before an application was “made”.
f)From [14] of the New South Wales Supreme Court Judgment:
“Section 588FF(3) of the Corporations Act applied to the making of an application under s.588FF(1) and was in these terms:
(3) An application under subsection (1) may only be made:
(a) within 3 years after the relation-back day, or
(b) within such longer period as the Court orders on an application under this paragraph made by the liquidator within those 3 years.”
g)At paragraph [101]:
“Although this case related to the making of an application for an extension of time under s 588FF(3)(b), the point made by Barrett J was that the policy which underpinned the provision was satisfied if the application for an extension was made (by the filing of the appropriate initiating process) within the 3-year limit, not that it was served or otherwise determined within that period.”
The point pressed by Mr. Reilly that derived from Tolcher was that the Court accepted that to “make” an application, an applicant needed to have the “filed” the relevant documents (even though service was not required).
Mr. King said he relied on relevant cases that make it clear that a person who “initiates” proceedings, “lodges” proceedings or “makes” an application, should not be deprived of the opportunity to have the matter heard “simply because of an issue in the Court's Registry”. He submitted that the applicant attended at the Court's Registry “on the relevant day”, and had with him the relevant documents, being an application which he said was sufficient to “commence the proceedings”. In addition, he had with him two affidavits, one in support of the application, and a further affidavit which has now been “marked for identification”. Mr. King further submitted that the evidence before the Court was that after waiting in the queue, when he got to the (Registry) counter he “lodged the documents”, and at that time therefore had “lodged his application”. He equated the “lodging” of the documents with the “making” of the application.
Mr. King stressed that the applicant initiated the process, and the “fact” that the Registry handed the documents back to him did not prevent a situation of the “making of the application at that point in time”, because, he said, it would be unreasonable and unfair where documents which were otherwise “formal”, that is that they were in the proper form sufficient to commence the process, were then rejected. He emphasised that the Registry “clerk” had accepted the application, but following the making of a telephone call relating to the fee, or fee waiver, he handed the documents back and told him to come back the next day, in circumstances where he could just as well have accepted the documents, and advised the applicant to come back with the requisite fee in an hour's time, or to have told him that if he was unable to do so then this would be fatal to his application (“you’re sunk”). Mr. King submitted that it would be “grossly unfair and unreasonable” for these “decisions” made within the Registry to affect the question as to whether or not the applicant “made an application” given that on any objective basis he had, in Mr. King's submission, made such an application.
Mr. King took issue with Mr. Reilly’s reliance on the change of the relevant word from “lodge” to “make”, and noted, and pressed, that what Parliament did not do was to specify “filing” as the manner in which the process was to be initiated. He submitted that Parliament would “be aware” that there is a difference between “filing” and “lodging”, and did not use the word “filing”. Although it used the word “made” about which he submitted there was no ordinary difference in the meaning between “making an application” and “lodging an application”. The difference he submitted is between those two words and the “filing” of an application, because filing infers standing. His submission was that on a proper analysis therefore, the application to the Court was “made” when it was “lodged” with the Court Registry on 23 February 2006. The “fact” that the Registry staff sent the applicant away should not be held against him.
Mr. King relied on the Full Federal Court decision in Hong Ye. This case:
a)Concerned an application for a protection visa. The Tribunal rejected the applicant’s application on 9 May 1997.
b)On 30 May 1997 the appellant (the applicant had appealed to the Full Court) sent an application for judicial review to the Federal Court’s Registry by facsimile communication. The application was not accompanied by a fee, or an application to waive the fee.
c)On 4 June the applicant forwarded a fee waiver application, and another copy of the application.
d)The Registry received these on 11 June 1997, and the application form was stamped that day.
e)The respondent Minister sought to have the application dismissed as being outside the 28 days specified in the then s.478(1) of the Act.
f)In considering whether there was jurisdiction the Court set out at lines 29 to 37 at page 328 of Hong Ye:
“The appellant seeks a review of the decision of the tribunal. The Federal Court has jurisdiction to review a decision of the tribunal on any one or more of the grounds found in s 476 of the Migration Act. But before the Court can exercise that jurisdiction s 478(1) requires the application to review the decision to:
(a) be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and
(b)be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.”
g)The Court held that an application for review will be ‘lodged’ with a Registry of the Court when it comes into the possession of a Registry or the staff or a Registry.
Drawing on this Mr. King submitted that in Hong Ye the Court, given that there was reference to both “made” and “lodged” (see Hong Ye at 328 lines 33 and 36 – as reproduced at [59] f) above – “(a)” and “(b)”), that there was no relevant distinction drawn between these two words. The real distinction was between “filing” and “lodging” as seen in Hong Ye at 330 lines 14 to 30 where the Court said:
“The corollary of this “fundamental rule” is that the court should not interpret a provision such as s 478 narrowly or with any rigidity: see as an example of this approach AL Campbell and Co Pty Ltd v FCT (1951) 82 CLR 452 at 461. What is meant by the word “lodged” in the phrase “lodged with a Registry of the Federal Court”? The first matter to notice is that s 478 is concerned with an act of a party and not with an act of the court or an officer of the court. This distinction is an important one. By the Rules of the Federal Court a proceeding in the original jurisdiction of the court is commenced by the “filing” of an application (see O 4, r 1(1)) and an appeal is instituted by the “filing” of a notice of appeal (see O 52, r 12). “Filing” is the word used to describe the process of placing a document in the records of a court or its registry: see Purden Pty Ltd v Registrar in Bankruptcy (1982) 43 ALR 512 at 515. Because s 478 is concerned with an act of a party it cannot be supposed that the word “lodge” is synonymous with the word “file”. A party who is required to “lodge” a document does not have the power or ability to “file” that document among the records of the court or its registry.”
Mr. King also referred to Hong Ye at 330 at lines 39 to 47:
“In accordance with these meanings an application to review will be “lodged” when it comes into the possession of a registry or the staff of a registry. The means by which possession is obtained does not matter. It could come about when an application is delivered into the hands of the registry staff or, if the application is posted, when it is received by the registry. When an application to review is sent by facsimile transmission to a facsimile machine that is located in the registry the application will be in the possession of the registry when the transmission is complete: compare: Talbot v NRMA Holdings Ltd (1996) 139 ALR 755.”
Mr. King's submission therefore, in essence, is that it is the lodging of an application which is to be equated with the making of the application. This is the important element for the purposes of s.477, and not “the filing of the application with the payment of fees and the subsequent stamping”. On this basis therefore, he submitted, the Court should be satisfied that an application had been made on 23 February 2006, and the Court should now proceed to hear argument on whether the extension of time set out in s.477(2) should be granted.
To the extent to which Mr. King relied on what was said in a Hong Ye (at 328, lines 33 to 36 – see [59] f) above) that is, the “no distinction” to be made between “made” and “lodged” and is derived from paragraphs (a) and (b) of the Full Court Judgment. I accept Mr. Reilly's submission in reply, that paragraph (a) is concerned with the form of the application, that is, how the application is to be made (and in that case it was to have been made as in the manner specified in the Rules of the Federal Court), and that (b) was concerned with the time, and that the word used in s.478 in relation to the time relevant to an application, is “lodged”. I do not agree therefore with Mr. King that there is no distinction to be drawn between “made” and “lodged”. In Hong Ye, with respect, the Full Court was confirming that for the purposes of the then s.478, when it came to the time within which an application (to review a Tribunal decision) should be brought before the Court, that such an application was required to be “lodged” within 28 days of notification of the Tribunal’s decision.
Plainly the legislature (drawing similarly from what Mr. King submitted would have been “known to Parliament”) would have been aware that the word used in the “old” s.478 was “lodged” and chose to use the word “made” instead in the current s.477. In all the circumstances I can only see that this was deliberate. I do not agree that no distinction can be drawn, and do not agree with Mr. King’s argument that no distinction can be drawn because of what was said in Hong Ye.
I also agree, as Mr. Reilly submitted, that “lodge” as understood by reference to authorities in the context of the then s.478, was reliant on the act of one party – the applicant. But the distinction now with “made” requires a joint act of that party, and the Court. Further, I also agree that with reference to the Rules of the Court there is no other way to “make” an application, than by “filing”. Something less than filing, that is, some presentation, and contemporaneous rejection, cannot be sufficient to “make” an application, even if it could be said to be the “lodgement” of the application in the sense as understood in Hong Ye and Abidin (that is, receipt at the Court’s Registry).
Making the Application
In the case before me now the applicant’s (application) form presented to the Court did indicate that the applicant was seeking an extension of time, and was making an application for an order that the time for making the application be extended under s.477 of the Act. In light of the applicant’s recently presented evidence this has to now be seen as an application, based on his assertion that he “made” the application on 23 February 2006, as an application for the Court to extend the time limit for the making of the application, pursuant to s.477(2)(a) and (b).
The issue then is did the applicant make such an application on

23 February 2006 or not. Both parties sought, in different ways, to rely on the authorities on the “old” s.478 of the Act. There is no authority put before this Court as to what is meant by “made” directly in the context of s.477. I note that SZICV (see above at [18]) was concerned with the form of an extension application where that applicant had not indicated on the application form whether he was making an application for an extension of time (the relevant part of the application form was not “ticked”). The Court in that case ultimately held that even though the documents in question were provided to the Court Registry within the time limit (set out in s.477(2)) that there was no “application made" to the Court “for that order” (that is the order extending the 28 day time limit for up to 56 days). Therefore, given that the application for the extension was not “made within” the identified 84 day period, the Court had no power to consider an application not made, nor any power to amend that application form such that it could be said that an application for the extension of time was made (see [64] SZICV).
What then in the immediate relevant context of the case before me now, is the meaning of “made” for the purposes of s.477(2)(a) of the Act. First, I accept as set out above, Mr. Reilly’s submission that the legislature did envisage some distinction between “lodge” and “made”. Second, I note that “made” is defined by the Macquarie Dictionary (revised third edition) as the:
“past tense and passed participle of make"
“Make” is defined (amongst other things) as:
“to bring into existence by shaping material, combining parts, etc”, “ to cause to be or become”, “render close” or “to put into proper condition for use”, “to bring into a certain form or condition”, “to do; effect”, “form”, “to fix, establish, enact”, “to be sufficient to constitute, be essential to”.
In all I understand the meaning to involve some act of completion in the creation of something, and a distinction to be drawn with the attempt to do so. This underscores Mr. Reilly’s submission (with which I also agree) that while “lodge” (as relevant to the “old” s.478 implied the act of one party, “made” (relevant to the s.477 now) requires an act by the Court (to complete the making). Can it be said therefore, on the evidence before the Court now, that what occurred at the Court Registry on the afternoon of 23 February 2006 can amount to an application “made” at that time.
The Rules of this Court provide in Rule 4.01(1) that a proceeding must be started by “filing” an application in accordance with the form of application set out in Part 1 of Schedule 2 to the Rules. This of course can be dispensed with, in the interests of justice by the Court at any time: Rule 1.06(1), even though the Rules intend (Rule 1.05(1)), that the practice and procedure of this Court be governed principally by the Rules.
What the Court cannot dispense with however is the requirement in the Regulations (Regulation 5(1)) that a fee for filing an application must be paid at the time of filing. To the extent therefore that the applicant relies on the documents that he took with him to the Court Registry on 23 February 2006 to say that he “made” his application to the Court at that time, then in my view, Regulation 5(1), and Regulation 11(1) (which provides that a document must not be “filed” in the Registry of the Court unless the fee payable for the filing has been paid, waived or deferred), the combined effect of these regulations is that the applicant's documents were not filed, because they could not be filed, given these regulatory provisions unless the fee was paid, waived, or deferred, none of which occurred on the afternoon on 23 February 2006. I note in particular here that while the Rules of Court can, in the interests of justice be dispensed with, I cannot see any provision that would enable the Court to dispense with relevant regulations.

I accept the applicant’s evidence that he attended the Court Registry, with his documents, on the afternoon of 23 February 2006 and that he had the intention of “filing” and “making” his application at that time. But what is also clear from the applicant’s own evidence is that he did not have with him the requisite fee, and did not tender the requisite fee, without which the document representing the application could not be filed, and nor beyond making enquiry did he apply at that time for a waiver, or the deferral of the payment of the fee.
I accept Mr. Reilly's submission that the ordinary meaning of the word “make” not only requires an act of the applicant (distinguish this with the judicial interpretation “lodging” in the old s.478 context), but also requires some act of the Court in accepting the application for the filing. In my view if the application could not be filed, and was not filed at that time, then it could not have been “made” within the ordinary meaning of that term as understood and referred to above.
Mr. King submitted that, in particular, the reason that he tendered the applicant's second affidavit of 23 February 2006 (subsequently marked for identification) was not to prove the contents, but to “prove the date that it was made on in further support of the applicant’s “bona fides” when he said in his affidavit that he did in fact “lodge” the documents on that day. I accept, because there is no reason to think otherwise, on what has been put before the Court, that the events did occur on the afternoon of 23 February 2006 generally as the applicant has set out.
An application may obviously be “lodged” with a Court Registry, in the context of “old” s.478 of the Act on the authority of Hong Ye when it came into the possession of the Registry, or the staff of the Registry, irrespective of the actual method by which this occurred. In my view this would have held good for the applicant if the word used in s.477 now was “lodged”. However, as I have already set out above there is a distinction between “lodged” and “made”.
Further, while the Rules of the Court can be dispensed with in the interests of justice and with reference to what may be required to effect at least a filing of an application (Rule 4.01 – commencement of proceedings in accordance with the form), the applicant now does not seek that the Court dispense with application of this Rule, but in fact submits that his taking of the (application) form to the Court’s Registry, and the attendant affidavit on 23 February 2006, and the lodging of these documents with the Registry, constitutes the “making” of the application. The combined effect of the Court Rules, and the Regulations referred to above, in my view is, that in the absence of any discretion, in circumstances where the fee was not proffered or an application for a waiver or deferral was not made, the Registry staff were, as Mr. Reilly submits not able to accept the application, such that it could be said the application was “made” for the purposes of s.477 of the Act. The applicant did not come to the Court’s Registry on

23 February 2006, prepared with all of the requisites for the filing of the application (see also below). The Registry staff were entitled, in my view, to reject the documents for filing given, at least, the regulatory requirements.
Unfairness
Mr. King submits that there is gross unfairness in the situation faced by the applicant, particularly in relying on the applicant’s evidence that had he known of the situation being otherwise, he would have taken steps to have attended to the fee. But I note also the applicant’s evidence that he did not have funds available to him at all, and would have to, as he in any event subsequently did, obtain funds from a friend, and was not able to fill out the requisite form seeking the waiver of the payment of the fee.
I do not say what follows, in any context, with reference to the issue of unwarrantable delay. That matter goes, of course, to the exercise of the Court’s discretion to grant the relief sought by the applicant, in the event that he made his application within time. It is solely on the issue of the applicant’s contention of “gross unfairness” and the implication that the Court should act to not allow such unfairness to stand, that I ask him to consider that he attended at this Court’s Registry to complain about a Tribunal decision made over 12 and a half years earlier. The applicant seeks to lay blame on the Court’s Registry staff for this “unfairness” in relation to what happened on 23 February 2006. In my view 12 and a half years is ample time to have prepared himself, with all the requisites, to be able to “make” an application to a Court. A similar application, which it must be said, he was able to previously arrange and made to the High Court in 2003. Further, his own evidence was that he attended a solicitor’s office on the morning of 23 February 2006, albeit on the evidence for the purposes of affirming his affidavits. Also on his own evidence he had the assistance of a friend in the completion of the application form (see paragraph 3 of his affidavit of 1 December 2006). The Court’s Registry staff were entitled to act in the way they did – that is to comply with relevant and applicable Regulations for the filing of an application. The applicant in my view had ample time and opportunity to have properly prepared himself to have avoided what Mr. King now submits is “gross unfairness”.
But even if what occurred at the Court’s Registry on the afternoon of 23 February 2006 could be said to be “grossly unfair”, I cannot see that this can assist the applicant. What remains is that an application for the purposes of s.477 was not made on that date. Given s.477(3) this Court has no power to extend the relevant time to include 24 February 2006.
Disclosure of Prior Judicial Review Proceedings
However, I am also persuaded that the application was not “made” on 23 February 2006 for the purposes of s.477(2) on another basis relied on by the respondent in her Response, to the application, filed on

10 March 2006. Given the nature of what was asserted in paragraph 4 of the Response, and given that it was not abandoned by the respondent during subsequent proceedings, in my view this issue cannot be ignored.
The Minister asserted in the Response (amongst other things) that the applicant had not complied with s.486D(1) of the Act. Section 486D(1) of the Act provides:
“(1)A person must not commence a proceeding in the Federal Magistrates Court in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the Court any judicial review proceeding already brought by the person in that or any other Court in relation to that decision.
(2) A person must not commence a proceeding in the Federal Court seeking the exercise of the Court's original jurisdiction in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the Court any judicial review proceeding already brought by the person in that or any other Court in relation to that decision.
(3) A person must not commence a proceeding in the High Court seeking the exercise of the Court's original jurisdiction in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the Court any judicial review proceeding already brought by the person in that or any other Court in relation to that decision.
(4)Proceedings required to be disclosed under subsection (1), (2) or (3) include proceedings brought before the commencement of this section.
(5) In this section:
"judicial review proceeding" , in relation to a tribunal decision, means:
(a) a proceeding in the Federal Magistrates Court in relation to the tribunal decision; or
(b) a proceeding in the Federal Court seeking the exercise of the Court's original jurisdiction in relation to the tribunal decision; or
(c) a proceeding in the High Court seeking the exercise of the Court's original jurisdiction in relation to the tribunal decision.”
In the application form signed by the applicant, which he says he took to the Court’s Registry on the afternoon of 23 February 2006 (I accept this), the applicant has not provided any response to the request for details of other Court proceedings in relation to the Tribunal decision of which he complains. The form specifically provides:
“Other Court Proceedings
[This section must be completed if the applicant has made a previous application or application to a Court to review the decision - see section 486D of the Migration Act 1958]
Person or Persons who made each previous application:
Court or Courts to which each application was made:
Commencement date of each previous application or applications:
File number of each application:
Outcome of each application:”
There is nothing on the application form to indicate any responses by the applicant.
The evidence before the Court by way of the affidavit of Ms. Dejean of 29 August 2006, and the attachments, reveal that the applicant had initiated proceedings in the High Court of Australia on 20 June 2003. Therefore proceedings were brought before the commencement of s.486D (became operational on 1 December 2005), but falling within s.486D(4) (see above). Further, this was a “judicial review proceeding” defined relevantly as a proceeding in the High Court seeking the exercise of the High Court’s original jurisdiction in relation to the Tribunal decision. The documents reveal that the applicant was making an application for writs of prohibition, certiorari and mandamus, and named as the parties to which such writs were to apply as the Tribunal, the Secretary of the Department of Immigration and Multicultural Affairs, and the Commonwealth of Australia. Section 75 of The Constitution provides that the High Court has original jurisdiction, amongst others in matters:
“(iii)in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;
(iv) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.”.
Plainly therefore the applicant had brought previous judicial review proceedings in the High Court, and when he attended at this Court’s Registry on 23 February 2006, there is no evidence to show that he made any attempt to disclose to the Court, at the time of attempting to commence these proceedings, that he had already brought previous judicial review proceedings in relation to the same Tribunal decision. Nor for that matter did the applicant make any such disclosure on

24 February 2006 when the application form was “stamped” by the Court's Registry. Nor is there any evidence that the applicant otherwise sought to comply with s.486D, that is, some other attempt at disclosure other than in the application form – at the relevant time.
If the Act provides that the applicant cannot commence proceedings unless he makes such disclosure, and he did not make such disclosure at the relevant time (nor even the day after) then I cannot see that the applicant can be said to have “made” his application if he failed to have complied with an express mandatory legislative provision prohibiting the commencement of the proceedings to which the application is said to relate.
I further note that in the affidavit also taken with him to the Court’s Registry on 23 February 2006, there is nothing making reference to the previous proceedings brought by the applicant before the High Court. In fact that affidavit asserts:
“4. It is with this decision [the Tribunal’s decision] that I strongly disagree because the tribunal member failed completely to understand my case there is an existence of a number of jurisdictional errors in its decision. I previously did not have access to legal advice and therefore could not conduct my case vigorously.
5.I believe that I have a good chance of success and therefore request that my case be reviewed by a Court of law and the necessary extension of time be granted.”
If anything there is an inference in this affidavit, which has now been put into evidence before the Court on 11 December 2006, that the applicant in fact had not sought judicial review because he did not have access to legal advice and could not conduct his case “vigorously”. But what remains, even if this is not what the applicant meant, is that he was unable to commence proceedings unless he made disclosure of the prior judicial proceedings. He did not do so on 23 February 2006. There is no evidence before the Court that he even attempted to do so.
I did consider whether “commence a proceeding” in s.486D(1) may not relate to “made” in s.477. That is, whether there is some argument that may be derived from the use in s.486D(1) of “commence a proceeding”, rather than “make an application”. I note first that both provisions were inserted into the Act by the same instrument (Act 137 of 2005) and became operational on the same day – 1 December 2005. In my view however, the difference in language derives from the focus on time limits on applications in the one case, and on the need to disclose prior judicial proceedings at the time of commencing any such proceedings. I am of the opinion that when properly read together the application for review of a Tribunal decision cannot be “made” unless the commencement of the proceedings to which the application relates contains any such relevant disclosure. In all therefore, I see this as a separate basis to support the conclusion that the application was not “made” on 23 February 2006.

Conclusion

In all therefore I accept the submissions made by Mr. Reilly on behalf of the respondent in support of the Minister’s objection to competency. Further, I agree with paragraph 4 of the respondent’s formal Response to the application. In all I find that the applicant did not “make” an application for review of the Tribunal's decision to this Court on

23 February 2006, or at any time prior, and that this was the last date on which the applicant, in all the circumstances before the Court, could have competently made such an application. By virtue of s.477(3) of the Act the Court must not make an order which has the effect of allowing an applicant to make an application, pursuant to s.477(1) of the Act, outside the 28 day period referred to in that subsection. Nor for the reasons set out above, has an application been “made” within the relevant time, such that it could be said that the applicant made an application for the extension of the time limit as provided for in s.477(2). No such application for an extension of time therefore was made within, and relevant to, the appropriate time. I uphold the Minister’s Notice of Objection to Competency. I dismiss the proceedings before the Court now.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:

Date: 22 December 2006