Wold-Mariam, Ephrem Dehne v Department of Immigration and Ethnic Affairs

[1997] FCA 767

FEDERAL COURT OF AUSTRALIA

MIGRATION - time limits - Migration Act - effect of non-compliance

Migration Act 1958 s 475(1)(b), 476(1) and (2), 478

Chun v Minister for Immigration (unreported decision of the Full Court 17 April 1996)
Ying Chao Mai v Minister for Immigration (unreported decision of Tamberlin J  9 May 1996)

Ephrem Dehne Wold-Mariam v Department of Immigration and Ethnic Affairs Refugee Review Tribunal
No QG 173 of 1997
Kiefel J
Brisbane
14 August 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
QUEENSLAND DISTRICT REGISTRY	)  QG173 of 1997
)
GENERAL DIVISION	)

BETWEEN:	EPHREM DEHNE WOLD-MARIAM Applicant
AND:	DEPARTMENT OF IMMIGRATION AND ETHNIC AFFAIRS REFUGEE REVIEW TRIBUNAL Respondent

JUDGE(S):	KIEFEL J
PLACE:	BRISBANE
DATED:	14 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application filed on 23 September 1996 be dismissed as incompetent.

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

IN THE FEDERAL COURT OF AUSTRALIA	)
)
QUEENSLAND DISTRICT REGISTRY	)   QG173 of 1997
)
GENERAL DIVISION	)

BETWEEN:	EPHREM DEHNE WOLD-MARIAM Applicant
AND:	DEPARTMENT OF IMMIGRATION AND ETHNIC AFFAIRS REFUGEE REVIEW TRIBUNAL Respondent

JUDGE(S):	KIEFEL J
PLACE:	BRISBANE
DATED:	14 AUGUST 1997

REASONS FOR JUDGMENT

On 21 June 1996 the Refugee Review Tribunal determined that Mr Wold-Mariam’s application for the grant of a protection visa be refused.  On 28 June 1996 those reasons, together with a letter advising Mr Wold-Mariam of the Tribunal’s conclusion and that he had twenty eight days in which to apply to the Federal Court to review it, were posted to him.  The respondent’s evidence shows that the letter was received by Mr Wold-Mariam on 2 July 1996.  Mr Wold-Mariam confirmed that this was the case.

Mr Wold-Mariam’s application for review of the decision of the Tribunal was not however filed in this Court until 23 September 1996.  Mr Wold-Mariam explained that he had, on the same day as receipt of the reasons, seen his solicitor who it seems was less than helpful.  He subsequently approached the Ombudsman, made representations to the Minister and instructed another solicitor to lodge the application.  These events occurred within the twenty eight day period following receipt of the reasons.  Regrettably however the application was not filed within that time.

The decision of the Refugee Review Tribunal was one reviewable under the Migration Act 1958: s 475(1)(b). The grounds relied upon, arguably at least, included those provided for by s 476(1) as reviewable grounds, for example, error of law. On another view of it however it is the unreasonableness of the decision, in the sense of its illogical or self-contradictory reasoning, which is the essential basis for the application. Such a ground is not one available for review, by reason of s 476(2). For the purpose of this application, which is one brought by the respondent by way of objection to competency of the application, I have however proceeded upon the assumption that the application is one which is valid and contains available grounds for review.

Section 478 of the Migration Act provides:

“Application for review by Federal Court

478(1) An application under section 476 or 477 must:

(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.

(2)      The Federal 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 paragraph (1)(b).”

The language of this section is clear.  There is no power in the Court to extend time for the lodgment of an application (and see Chun v Minister for Immigration (unreported decision of the Full Court 17 April 1996);  Ying Chao Mai v Minister for Immigration (unreported decision of the Tamberlin J 9 May 1996).  Non-compliance with the provision has the result that the Court has no jurisdiction with respect to the matter.

Upon these bases I have ordered that the application filed on 23 September 1996 be dismissed as incompetent.

I certify that this and the preceding  page is a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel

Associate:

Dated:            14 August 1997

Counsel for the Applicant:	In Person
Counsel for the Respondent:	R Derrington
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 August 1997
Date of Judgment:	14 August 1997