S365 of 2003 v Minister for Immigration
[2006] FMCA 916
•26 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S365 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 916 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – applicant taken to have been notified of decision on 1 December 2005 – no request for an extension of time within 84 days of 1 December 2005 – application incompetent. |
| Migration Act 1958 (Cth) Migration Litigation Reform Act 2005 (Cth) Federal Magistrates Court Rules 2001 |
| Applicant: | APPLICANT S365 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG616 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 26 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 26 June 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondents: | Nil |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application is dismissed as incompetent.
That the applicant to pay the costs of the first respondent fixed in the sum of $1,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG616 of 2003
| APPLICANT S365 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
I have before me a Notice of Objection to Competency filed by the first respondent on 10 March 2006, in connection with proceedings commenced on 24 February 2006 by the applicant, seeking review of a decision of the Refugee Review Tribunal (the Tribunal) made on
29 April 1998 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. In the application of
24 February 2006 the applicant stated that he received notification of the decision on 29 April 1998. He seeks orders setting aside that decision.
The Notice of Objection to Competency objects to the jurisdiction of this court to try the application on the basis that, pursuant to the provisions of the Migration Act 1958 (Cth) (the Act), in particular the amendments that were introduced as from 1 December 2005, the application was made out of time.
In order to consider this argument it is necessary to have regard to the applicable provisions. First I note that there is no issue as to the date of actual notification of the decision. The relevant provision under the Migration Act 1958 is s.477 of the Act, which provides in subsection (1):
An application to the Federal Magistrate's Court for remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.
It is not in dispute that the application presently before the court from the applicant is an application that falls within the language of s.477(1). Subsection (2), however, provides that:
The court may by order extend the 28-day period by up to 56 days if:
(a) an application for that order is made within 84 days of the actual, as opposed to deemed, notification of the decision; and
(b) The Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
I also note that under subsection (3) it is provided that:
Except as provided by subsection (2) the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28-day period.
In this case the Tribunal decision in issue preceded the introduction of s.477 in its present form. However there are transitional arrangements in place in relation to decisions notified before the commencement of the Migration Litigation Reform Act 2005 (Cth) which came into effect on 1 December 2005 and introduced these provisions. Item 42 of Part 2 of Schedule 1 to the Migration Litigation Reform Act provides that where proceedings are commenced on or after the commencement date (that is, on or after 1 December 2005) in relation to a migration decision made before the commencement date, and where there was actual notification of the decision before the commencement date, then s.477 applies as if the actual notification of the decision took place on the commencement date.
In other words, in this instance, while the applicant stated in his application that he was notified of the decision in issue on 29 April 1998, by virtue of these provisions he is deemed to have been actually notified of it on 1 December 2005.
It is then necessary to consider whether he made his application within the applicable time limits. The difficulty for the applicant in this case is that, even allowing for the extension that the court may grant in circumstances that come within s.477(2), the applicable time limit is 84 days from the actual notification of the decision, which in this instance is deemed to be 1 December 2005.
The application was filed on 24 February 2006 and both the applicant and the solicitor for the respondent agree that that is out of time. It is one day late. While the applicant seemed to take issue with the fact that it was only one day and suggested that perhaps something could be done, under the provisions of s.477 it is clear that the power of the court to extend the time for the making of an application is limited to the period provided for s.477(2). That is made clear by s.477(3).
In this case I find that the applicant was notified of the Tribunal decision for the purposes of s.477 of the Migration Act 1958 before 1 December 2005, so that he is taken to be actually notified of the decision on 1 December 2005. His application to the court was made more than 28 days after that date and moreover he did not seek an extension of time within 84 days from 1 December 2005. At the time of his application it was too late for him to seek such an extension of time.
It follows from the application of these provisions that the application is incompetent and should be dismissed.
The first respondent also seeks that the applicant meet her costs of these proceedings. The amount provided for in the Federal Magistrates Court Rules 2001, in particular Rule 44.15(1) and Item 1(b) of Part 2 of Schedule 1 to the Rules, would permit of an order in the amount of $2,500. However the amount that is sought in the circumstances of this case is the sum of $1,200. I consider that that is appropriate in light of the nature of this and other similar matters.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 10 July 2006
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