Ye, Hong v Minister for Immigration and Multicultural Affairs

[1997] FCA 1096

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 450 of 1997

BETWEEN:	HONG YE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTI-CULTURAL AFFAIRS AND ANOR RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	26 SEPTEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex-tempore Judgment)

In this matter the Court records indicate that the application was lodged with the Court on 11 June 1997.  On 12 June 1997, I understand that the fee normally payable on such an application was waived by the Court.

The problem which the applicant faces, in this application, arises from the provisions of s 478 of the Migration Act 1958 (Cth). Section 478 requires that an application for review under ss 476 or 477 of the Migration Act, as is the application in this case, must be made in such a way as specified in the Rules of Court under the Federal Court of Australia Act 1976 (Cth) and must be lodged with the a Registry of the Court within 28 days of the applicant being notified of the decision. The Federal Court is prohibited from making an order allowing, or which has the effect of allowing, lodgment of an application by an applicant outside the period specified, namely 28 days from notification: s 478(2).

There is no dispute in the present case that notification took place on 9 May 1997.  The application, on the material in the Court file and on the balance of probabilities, was not made until 11 June 1997.  This was out of time and therefore the Court has no jurisdiction to deal with the application.

In this case, the late lodgment is unfortunate because there is some evidence that an application had been foreshadowed prior to 11 June 1997.  The applicant says that she faxed the application and supporting documents to the Court on 28 May 1997, but there is nothing in the records of the Court which indicates that this in fact occurred.  It is true that the application is dated 28 May 1997 but neither the filing number given by the Court nor the filing date on the application support the view that the application was lodged with the Court prior to 11 June 1997.

On 3 June 1997, it appears that the applicant contacted the Court in order to seek a waiver of fees payable on an application.  It also appears, and I so find, that the Court sent by facsimile an application for fee exemption or waiver to the applicant on that date.  According to the Court records, it is also more probable than not that on 4 June 1997 the applicant filled out the application for fee exemption or waiver.  It also seems to be the case that this application, together with other documents, including the application for review, were posted to the Court on or about 4 June 1997.

The unfortunate circumstance in the present case is that the documents including the application were not received by the Court until 11 June 1997.  Under the legislation, it is not the posting of the application which is the important consideration, it is the lodgment or filing of the application with the Court. I have reached the conclusion that the application must be dismissed as being incompetent because it was made out of time. It is contrary to the requirements of s 478(1)(b) of the Migration Act.  It therefore follows as a result of the objection to competency that the application for review is not competent and therefore this proceeding must be dismissed.  I make no order as to costs.

I certify that this and the preceding one (1) page is a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:            26 September 1997

Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 September 1997
Date of Judgment:	26 September 1997