Shah v Minister for Immigration

[2006] FMCA 960

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHAH & ORS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 960

MIGRATION – Application for review of decision of Migration Review Tribunal made on 7 November 2005 – where applicants claim to have been notified on 14 November 2005 – where application made more than 28 days after notification – court has no power to grant an extension of time where application filed more than 84 days after notification.

Migration Act 1958 (Cth), s.477

Migration Litigation Reform Act 2005 clause 42, Sch. 1, Part 2

First Applicant: SZED JAVED IQBAL HUSSAIN SHAH

Second Applicant: SABA NAZAR SHAH

Third Applicant: SYED ALI SHAH

Fourth Applicant: QURAT ALAYEN SHAH

Fifth Applicant: SYED ASSAD SHAH

Sixth Applicant: SYED MOHAMMAD MEHDI SHAH

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File No: SYG 1467 of 2006

Delivered on: 26 June 2006

Delivered at: Sydney

Hearing date: 26 June 2006

Judgment of: Scarlett FM

REPRESENTATION

Applicants: In Person

Solicitors for the Applicant: Mr Prince (appeared pro bono)

Solicitor for the Respondent: Ms McDonald

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The Application is dismissed.

2. The First and Second Applicants are to pay the First Respondent’s costs fixed in the sum of $500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1467 of 2006

SYED JAVED IQBAL HUSSAIN SHAH

First Applicant

SABA NAZAR SHAH

Second Applicant

SYED ALI SHAH

Third Applicant

QURAT ALAYEN SHAH

Fourth Applicant

SYED ASSAD SHAH

Fifth Applicant

SYED MOHAMMAD MEHDI SHAH

Sixth Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application to review a decision of the Migration Review Tribunal made on 7^th November 2005. The Applicants claim to have been notified of the decision on 14^th November 2005. The Tribunal affirmed the decision of the delegate of the Minister finding that the Applicants were not entitled to the grant of Business Skills (Residence) (Class BH) visas.

2. The application is out of time. The Applicants filed their application for review on 22^nd May 2006, which is more than 28 days after they say that they were notified of the decision. The solicitors for the First Respondent Minister point out that the notification was made before

   
   

   1^st December 2005, which means that, according to the transitional provisions in clause 42, Schedule 1, part 2 of the Migration Litigation Reform Act 2005, s.477 of the Migration Act applies as if actual notification took place on 1^st December 2005.

3. The Applicants seek an extension of time. The First Applicant says, in an affidavit filed on 22^nd May 2006:

   The Deponent did not engage any lawyer or migration agent as such the deponent was unaware of the time frame. The extension of time may kindly be allowed.

4. The Minister submits that this reason is insufficient to show why it would be in the interests of justice to grant an extension of time. In any event, the court in this case cannot grant an extension of time.

5. Section 477(2) of the Migration Act requires that an application for the extension of time must be made within 84 days of the actual notification. As this is a case where the law deems actual notification to have occurred on 1^st December 2005, the 84 day period expired in late February 2006. As this application was not filed until 22^nd May 2006, the court has no power to grant an extension of time.

6. It follows that the court has no jurisdiction to hear the application. The application will be dismissed.

7. The First Respondent seeks an order for costs in the sum of $500.00. I believe that this is an appropriate case for a costs order to be made and that $500.00 is an appropriate amount. Only the First and Second Applicants are adults, the other four are all children. I propose to order that the First and Second Applicants pay the First Respondent’s costs in the sum of $500.00.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  3 July 2006