Wagg of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 721

FEDERAL COURT OF AUSTRALIA

WAGG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 721

WAGG OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W122 of 2002

CARR J
5 JUNE 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W122 OF 2002

BETWEEN:	WAGG OF 2002 Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGE:	CARR J
DATE OF ORDER:	5 JUNE 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W122 OF 2002

BETWEEN:	WAGG OF 2002 Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent

JUDGE:	CARR J
DATE:	5 JUNE 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1. The Court has before it a notice of objection to the competency of this application.  On the face of the application it states that it is to review the decision of the Refugee Review Tribunal made on 11 February 2002 and that the applicant was notified of the Tribunal’s decision on the 12 February 2002.  There is also affidavit evidence to that effect tendered on behalf of the respondent.  The application was filed on the 26 April 2002. 

2. The notice of objection to competency states the following ground:

   “The application for review of the decision made by the Refugee Review Tribunal on 11 February 2002 was not made to the Federal Court within 28 days of the notification of the decision as required by section 477(1) of the Migration Act 1958.”

3. As I have mentioned, the facts asserted in that ground are apparent, first, from the terms of the application itself, secondly, from the affidavit evidence and, thirdly, from the Court file which shows that the application was filed on 26 April 2002.  That date is considerably more than 28 days after the applicant was notified of the Tribunal’s decision.  It is somewhat puzzling that the applicant took the step of filing the application in view of the circumstances to which I am about to refer. 

4. Those circumstances are that, on 14 February 2002, the applicant filed, in the New South Wales District Registry of this Court, an application for an order of review of the same decision made by the Refugee Review Tribunal of which he was notified, as I have said, on 12 February 2002.  That matter became entitled Applicant NACH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs.  On 14 March 2002, by consent, Sackville J ordered the transfer of that proceeding to the Western Australia District Registry of this Court.  On 3 May 2002, Nicholson J ordered that that proceeding be transferred to the Federal Magistrates Court.  There is affidavit evidence before the Court that that application is listed for hearing in the Federal Magistrates Court tomorrow at 9.30 am.  Thus the situation is that the applicant has made two applications to this Court to review the same decision by the Refugee Review Tribunal.  The first of those applications has, as I have just mentioned, been transferred to the Federal Magistrates Court and is about to be heard.  However, I am obliged to deal with the objection to the competency of the second application. 

5. One of the effects of the amendments made by the Migration Legislation (Judicial Review) Act 2001 (Cth) and associated contemporaneous legislation was that (and this has been the case since 2 October 2001) this Court does not have any jurisdiction with respect to the Tribunal’s decision other than that under s 39B of the Judiciary Act 1903 (Cth).  That jurisdictional source would be so limited whether the applicant sought to rely on the principles explained in cases such as R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 at 616 and R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 399-400 or whether the applicant asserted jurisdictional error on the Tribunal’s part. The only source of this Court’s jurisdiction now remaining would be in proceedings brought under s 39B of the Judiciary Act. 

6. Section 477(1) of the Act relevantly provides that an application under s 39B of the Judiciary Act for a writ of mandamus, prohibition or certiorari, or an injunction or a declaration in respect of a privative clause decision (a term referred to and defined in s 474) in relation to which the jurisdiction of the Federal Court is not excluded by s 476 must be made to the Federal Court within 28 days of the notification of the decision.  There is no doubt that the Tribunal’s decision in this matter was a privative clause decision.  Section 477(2) relevantly provides that this Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in s 477(1). 

7. In those circumstances there is no relevant difference between the provisions of s 478 of the Migration Act as they were before 2 October 2001 and the relevant provisions of s 477 to which I have just referred. There are many authorities to the effect that s 478 of the former Migration Act imposed a time limit which was not procedural, but which goes to the jurisdiction of the Court and a time limit which cannot be extended.  One of the most recent authorities to that effect is the decision of a Full Court of this Court in Rahman v Minister for Immigration and Multicultural Affairs [2002] FCA 83.

8. In my view, it is patently clear from s 477(1) and (2) that Parliament intended that the Federal Court should not have any jurisdiction to entertain this application for an order of review, because it was lodged more than 28 days after the applicant was notified of the decision sought to be reviewed.

9. I consider that the objection to competency has been made out.  The application must be dismissed.

10. It might also be the case that the application should be dismissed as an abuse of process, given the parallel proceedings initiated in this Court, transferred to the Magistrates Court and about to be heard tomorrow.  However, the respondent does not rely upon such a ground and there is no need to comment further upon the point, other than to note that at least the applicant will have his day in court in those proceedings. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

Associate:

Dated:             5 June 2002

The Applicant appeared for himself:
Counsel for the Respondent:	Mr P R Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 June 2002
Date of Judgment:	5 June 2002