Zreika v Minister for Immigration

[2006] FMCA 1121

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZREIKA v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1121

MIGRATION – Review of decision by Migration Review Tribunal – practice and procedure – show cause hearing pursuant to r.44.12 Federal Magistrates Court Rules 2001– application filed more than 84 days after notification to applicant of decision of Migration Review Tribunal – no jurisdiction in Federal Magistrates Court to extend time for filing – application dismissed.

Federal Magistrates Court Rules 2001, r.44.12; sch.1
Migration Act 1958 (Cth), ss.477; 477(1); 477(3)

Applicant: MOHAMAD ZREIKA

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: SYG864 of 2006

Judgment of: Emmett  FM

Hearing date: 31 July 2006

Date of last submission: 31 July 2006

Delivered at: Sydney

Delivered on: 31 July 2006

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent: Ms A. Nanson, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG864 of 2006

MOHAMAD ZREIKA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first respondent seeks an interlocutory order, pursuant to rule 44.12 of Federal Magistrates Court Rules 2001, that the applicant's application filed in this Court on 23 March 2006 be dismissed on the grounds that the Court lacks jurisdiction to hear the application in circumstances where the application was filed more than 84 days after notification to the applicant of the Tribunal's decision. 

2. The first respondent referred the Court to s.477 of the Migration Act 1958 (Cth) (“the Act”) which states that any application for review must be filed within 28 days of actual notification of the decision. The Court may extend that 28 day period by a further 56 days up to a maximum of 84 days, provided that an application for an extension of time is made within 84 days and the Court is satisfied that it is in the interests of the administration of justice to do so. Otherwise, pursuant to s.477(3) of the Act, the Court must not make an order allowing an extension of time outside the 28 day period.

3. The applicant’s application filed on the 23 March 2006, sought an extension of time for filing his application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) in respect of which he was notified, according to the application, on

   
   

   15 September 2003.

RECORDED  :  NOT TRANSCRIBED

1. The applicant has filed two affidavits in the proceeding, both of which the applicant read this morning.  The first attaches a copy of the decision of the Migration Review Tribunal, dated 8 September 2003. The second is an affidavit that gives little detail of the dates involved in the Tribunal’s conduct of its review.  However the applicant deposes that a representation was made to the Minister on 30 June 2004.  I note that that date is after the Tribunal's decision was made and after the date upon which notification of the decision stated by the applicant in his application was given.

2. In neither affidavit of the applicant does the applicant suggest that he was notified other than in accordance with the date identified on his application.  In any event, at least by 30 June 2004, the applicant had been notified of the Tribunal’s decision.

3. In those circumstances, more than 84 days has expired from when the applicant was notified of the Tribunal decision until he filed his application in this Court.

4. In the circumstances, pursuant to s.477(3) of the Act this Court does not have power to extend the time for filing of an application seeking judicial review of the Tribunal decision outside the 28 day period provided in s.477(1) of the Act. Accordingly, the application is dismissed.

RECORDED  :  NOT TRANSCRIBED

1. The costs that are provided for under sch.1 of Federal Magistrates Court Rules 2001 provide for costs in respect of a hearing such as this morning's of $2500.  The first respondent is seeking costs only of $1000.

ORDERS DELIVERED

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  S. Tsang

Date:  8 August 2006