Singh v Minister for Immigration and Multicultural Affairs

[2001] FCA 152

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 152

NIMAL SINGH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1181/00

HELY J
20 FEBRUARY 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1181 OF 2000

BETWEEN:	NIMAL SINGH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	20 FEBRUARY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1181 OF 2000

BETWEEN:	NIMAL SINGH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE:	20 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 6 November 2000 the applicant lodged an application under s 476 of the Migration Act 1958 (Cth) (“the Act”) for a review of a decision of the Refugee Review Tribunal (“RRT”) which was handed down on 26 September 2000. Section 478(1)(b) of the Act provides a period of 28 days within which an application for review may be made to the Federal Court, and s 478(2) provides that the Federal Court must not make an order which has the effect of allowing an applicant to lodge an application outside that period.

2. The decision of the Full Court of the Federal Court in Nirmalan v Minister for Immigration and Multicultural Affairs (1998) FCA 672 given on 14 May 1998 makes it plain that s 478(2) means what it says and the Court has neither jurisdiction nor discretion to grant an extension of time. The solicitor for the applicant submits that s 478(2) is inconsistent with s 481(1)(c) and that the inconsistency in some way invests this Court with a discretion that s 478(2) denies to it. In my view, there is no inconsistency between the two sections and my duty is to give effect to s 478(2) in accordance with its terms.

3. The evidence filed by the respondent in support of the objection to competency discloses that the letter enclosing the decision was posted to the applicant at the last address for service provided by the applicant in connection with the application for review on 27 September 2000.  Regulation 5.03(1) of the Migration Regulations provides that:

   “[A] document is taken to be received by the person to whom it was sent at the time that the document is taken to be received at the address to which the document is sent, which is ... if the document is sent from a place in Australia to an address in Australia - 7 days after the date of the document.”

4. The Regulation requires that the document be sent within 3 days of the decision.  Thus, the letter having been sent the day after the decision enclosing it, the decision is taken to have been received by the applicant on 3 October 2000.  Thus, the 28 day period expired on 31 October 2000 and the Federal Court application was not filed until 6 November 2000, and thus outside the time allowed by the statute for making an application for an order of review.

5. The evidence establishes that at some stage the Post Office was notified of a change in the applicant’s address, but there is no evidence of any equivalent notification having been given to the respondent.

6. I have no jurisdiction to extend the time for the making of an application.  Accordingly, I propose to uphold the notice of objection to competency and to dismiss the application for an order of review, upon the basis that the application is incompetent.  The application is therefore dismissed.

7. Counsel for the Minister seeks an order for costs.  The usual consequence of an application being dismissed on the grounds that it is incompetent would be that the respondent should be ordered to pay the applicant's costs.  The solicitor for the applicant submits that he is impecunious and cannot afford to meet a costs order.  Whilst there is no evidence before me to that effect, I am prepared to accept for present purposes that that is in fact the position.  However, the applicant's impecuniosity does not provide a sufficient reason for departing from what would be the usual practice in a case such as the present, and I order that the application be dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:              27 February 2001

Counsel for the Applicant:	Jyoti Bharati
Solicitor for the Applicant:	Theodore Solomon and Partner
Counsel for the Respondent:	G Cranwell
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	20 February 2001
Date of Judgment:	20 February 2001