Ying Chao Mai v Minister for Immigration & Ethnic Affairs
[1996] FCA 331
•9 MAY 1996
CATCHWORDS
IMMIGRATION - application to review decision of the Refugee Review Tribunal (RRT) to refuse application for refugee status - whether Court has jurisdiction to hear application - amendments to the Migration Act 1958 (Cth) - mandatory time limitation requirements of s478 - application outside prescribed 28 day period - no power in Court to extend time.
ADMINISTRATIVE LAW - application to review decision of RRT to refuse application for refugee status.
Administrative Appeals (Judicial Review) Act 1977 (Cth)
Migration Legislation Amendment Act 1994 (No 60 of 1994) (Cth), Item 2, Schedule 2.
Migration Reform Act 1992 (No 184 of 1992) (Cth), s39
Migration Act 1958 (Cth), s476(1), s478
Chen Shi Lian & He Chuan Qui v Minister for Immigration and Ethnic Affairs & Anor, unreported, Tamberlin J, 19 April 1996, cited
Fuad Bin Mahboob v Minister for Immigration and Ethnic Affairs & Anor, unreported, Lehane J, 15 March 1996, 15 April 1996, applied
YING CHAO MAI v
MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS &
DOCTOR LYN FONG, MEMBER REFUGEE REVIEW TRIBUNAL
No NG 280 of 1995
Tamberlin J
Sydney
9 May 1996
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 280 of 1995
GENERAL DIVISION )
BETWEEN: YING CHAO MAI
Applicant
AND: MINISTER FOR IMMIGRATION
AND ETHNIC AFFAIRS
First Respondent
DOCTOR LYN FONG
MEMBER REFUGEE REVIEW TRIBUNAL
Second Respondent
CORAM: TAMBERLIN J
PLACE: SYDNEY
DATED: 9 MAY 1996
MINUTE OF ORDERS
THE COURT ORDERS THAT:
The application be dismissed.
NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 280 of 1995
GENERAL DIVISION )
BETWEEN: YING CHAO MAI
Applicant
AND: MINISTER FOR IMMIGRATION
AND ETHNIC AFFAIRS
First Respondent
DOCTOR LYN FONG
MEMBER REFUGEE REVIEW TRIBUNAL
Second Respondent
CORAM: TAMBERLIN J
PLACE: SYDNEY
DATED: 9 MAY 1996
REASONS FOR JUDGMENT
TAMBERLIN J:
Before me is an amended application filed on 18 March 1996, to review under s5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), the decision of the Refugee Review Tribunal (the "RRT") to refuse the applicant's application for refugee status.
The grounds of the application pressed at the hearing are:
"1.The decision involved a denial of procedural fairness in that second respondent was obliged to put the applicant on notice of her concerns relating to the authenticity of the letter from the applicant's former employer and give the applicant an opportunity to answer those concerns.
The second respondent took into account irrelevant matters, namely:
(1)That the applicant had the capacity and the contacts to obtain letterhead stationery to forge a letter from her former employer,
(2)That the expression of judgement of the applicant's activities contained in the letter from the former employer was one limited to the applicant's work unit.
(3)That the applicant's dismissal from her employment will have no effect upon her prospects of employment in private industry.
The second respondent based the decision upon particular facts, and those facts did not exist.
Particulars
(1)That the applicant has the capacity and the contacts to obtain letterhead stationery to forge a letter from her former employer,
....
(4)The decision is unreasonable.
(5)The second respondent erred in law in failing to determine the applicant's case on the basis that she is a refugee if there is a real chance that she will suffer persecution on return to china for reasons of political opinion.
....." (Emphasis added)
Jurisdiction
Although both parties in the proceedings before me took the view that the Court had jurisdiction in the present matter, I consider that the Court does not have jurisdiction to hear the application.
The RRT said when referring to the legislative framework:
"On 1 September 1994 the Migration Reform Act 1992 (MRA), by amendment to the Act, introduced a visa known as a protection visa for people who seek protection as refugees: see s.36 of the Act. This visa replaces the visas and entry permits previously granted for that purpose. Section 39 of the MRA provides, in effect, that refugee related applications not finally determined before that date are to be dealt with as if they were applications for a protection visa. Accordingly, for the purpose of this review the Tribunal regards the Applicant's primary application as an application for a protection visa."
The sequence of events, in this matter, is that the applicant first sought protection as a refugee, by application for refugee status, lodged on 26 October 1990.
There was an application for a Domestic Protection (Temporary) Entry Permit on 8 August 1991.
The primary decisions to refuse these applications were made on 10 December 1993 and the applicant was notified on the same date.
The applicant applied to the RRT for review of the decisions on 13 January 1994.
The decisions of the RRT were given on 2 March 1995.
The application to the Court was made on 26 April 1996.
The Migration Legislation Amendment Act (1994), (No 60 of 1994), effective on and from 1 September 1994 (the "1994 Act") by Item 2 of the Second Schedule repealed the earlier s39 of the Migration Reform Act (1992) (No 184 of 1992) (the "1992 Act") and substituted the following transitional provision:
"s39. If:
(a) an application for:
(i)a determination by the Minister that a person is a refugee within the meaning of the Principal Act as in force immediately before 1 September 1994; or
(ii)an entry permit (within the meaning of the Principal Act as in force immediately before that date), a criterion of which is that the Minister has made such a determination in relation to the person, or in relation to a member of the family unit of the person (within the meaning of the regulations);
was made before that date; and
(b)before that date, the application has not been finally determined (within the meaning of the Principal Act);
then, on and after that date, the provisions of the Principal Act (including provisions relating to review of decisions) apply as if the application was an application for a protection visa within the meaning of the Principal Act as in force at that date)." (Emphasis added)
In the present case the application comes within s39, because there was an application for a determination of refugee status made before 1 September 1994 and that application had not been "finally determined" before that date. Accordingly, after 1 September 1994, the provisions of the Migration Act 1958, as amended by the 1992 Act, on and after 1 September 1994, including the provisions relating to review of decisions, apply in the present case.
My reasons for this view were given in Chen Shi Lian and He Chuan Qiu v Minister for Immigration and Ethnic Affairs (unreported WAG 132/1994, 19 April 1996).
The question of jurisdiction was considered in some detail by Lehane J in Fuad Bin Mahboob v Minister for Immigration and Ethnic Affairs & Anor (unreported, Lehane J, 15 March 1996). His Honour heard further argument with respect to the question of jurisdiction and delivered further reasons in that matter on 15 April 1996, with which I respectfully agree. His Honour's conclusion was that where the application for judicial review was made out of time the Court was prohibited from dealing with the matter.
Section 476(1) of the Migration Act (1958) provides:
"476(1) Subject to subsection (2) application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:...
Subsection (2) provides that an application under the section cannot be made on the basis that a breach of laws of natural justice occurred in connection with the making of the decision or that the decision involved a exercise of power which is so
unreasonable that no reasonable person could have so exercised the power.
Section 478 provides:
"478(1) An application under section 476 ... must:
(a).... and
(b)be lodged with the 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 periods as specified in 1(b)." (Emphasis added)
It is quite clear that the requirements of s478 are mandatory and permit of no extension of the time.
In the present case, the decision of the RRT were delivered on 2 March 1995 and the application to this Court was filed on 26 April 1995. The application to the Court is clearly outside the 28 days prescribed by s478(1)(b).
As a result, the Court has no jurisdiction with respect to this matter on the view which I take of the operation of s39 quoted above, when read in conjunction with s478 of the Migration Act, in force on and from 1 September 1994.
Accordingly, the application must be dismissed on the ground that it is out of time. There is no power in the Court to extend that time.
The parties have made submissions on the matters raised in the grounds on which the application for judicial review is made to this Court.
However, the applicant submitted that if I find the Court does not have jurisdiction to determine the merits of the applicant's case, then I should not procced to determine the merits, on the basis that this could be a hypothetical exercise.
Counsel for the respondents expressed a "preference" that the Court provide its reasons on the merits in order to obviate the need for further remittal or retrial. He submitted that the desirability of an early publication of a decision, on the jurisdictional question, which was the case in the matter of Fuad Bin Mahboob v Minister for Immigration and Ethnic Affairs (unreported, Lehane J, 15 March 1996, 15 April 1996), was not a consideration in the present case.
I consider there is considerable force in the applicant's submission particularly because any determination at this stage will impact on the expectations of the applicant in circumstances where such a determination may have no operative effect.
In the circumstances, I have decided not to make any determination with respect to the merits of the application.
Conclusions
For the reasons given above, my conclusion is that the Court does not have jurisdiction to hear and decide this application and it must therefore be dismissed. I do not consider it appropriate to make any order as to costs on the jurisdictional issue.
I certify that this and
the preceding seven (7)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.
Associate:
Date: 9 May 1996
Counsel for Applicant: Mr G Craddock
Solicitor for Applicant: NSW Legal Aid Commission
Counsel for Respondent: Mr R Beech-Jones
Solicitor for Respondent: Australian Government Solicitor
Date of Hearing: 18 March 1996 & 6 May 1996
Date Judgment Delivered: 9 May 1996
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