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MIGRATION - Application for review of a decision of the Refugee Review Tribunal - application for review not lodged within prescribed period - notice of objection to competency - whether Court has jurisdiction to extend time.

NAMT v Minister for Immigration [2002] FMCA 198 (28 August 2002)

NAMT v Minister for Immigration [2002] FMCA 198 (28 August 2002)
Last Updated: 5 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAMT v MINISTER FOR IMMIGRATION
[2002] FMCA 198



MIGRATION - Application for review of a decision of the Refugee Review Tribunal - application for review not lodged within prescribed period - notice of objection to competency - whether Court has jurisdiction to extend time.



Migration Act 1958 (Cth), s.477

SAAB v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FMCA 148

Kucuk v Minister for Immigration & Multicultural Affairs [2001] FCA 535

Applicant:
NAMT



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 658 of 2002



Delivered on:


28 August 2002



Delivered at:


Sydney



Hearing Date:


28 August 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Mr J Smith



Solicitors for the Respondent:


Clayton Utz



ORDERS

(1) The objection to competency be upheld.

(2) Application dismissed.

(3) Applicant pay the respondent's costs in the sum of $3,000.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 658 of 2002

NAMT


Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This is an application by a citizen of Mongolia who arrived in Australia as a student on 24 February 2000. On 13 July 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (Cth). On 28 August 2001 a delegate of the Minister refused to grant a protection visa and on 24 September 2001 the applicant applied for review of that decision.

2. The decision was reviewed by the Tribunal which made its decision to affirm the refusal to grant the protection visa on 24 May 2001. The reasons for that decision were provided to the applicant and his authorised representative by facsimile on 27 May 2002. The applicant has conceded today in this court that he received the decision on 27 May 2002.

3. The letter which accompanied the decision says in its third paragraph the following:

"You may have a limited right to seek review of this decision by the Federal Court, the Federal Magistrate's Court and/or the High Court. There are strict time limits within which an application for review by the courts must be filed. I strongly advise you to promptly seek legal advice if you wish to seek review by the courts."

4. The time limit on making an application to the Federal Court or the Federal Magistrate's Court is set out in s.477 of the Migration Act. The time limit is 28 days from the date of notification of the decision. It is unfortunate that no notification of this period is given to an applicant in the covering letter from the Tribunal.

5. The applicant made his application for review on 1 July 2002, some 35 days after receipt of the decision. Subsection 2 of s.477 is in the following terms:

(2) The Federal Court or the Federal Magistrate's Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application referred to in subsection 1 or subsection 1A outside the period specified in that subsection.

6. The applicant has told me that he did not know of the 28 day limitation. I can understand that. Legal advice is not readily available in a detention centre.

7. I dealt with a matter identical to this in SAAB v MIMIA [2002] FMCA 148. In that case I followed the decision of Hely J in Kucuk v MIMA [2001] FCA 535. I noted that His Honour said at [17]:

"The terms of the statute and a line of authority establish that I have no power to grant an extension of time irrespective of the justice of doing so in the circumstances of a particular case."

8. In this case the situation is no different for me. Whatever the merits of the applicant's claim may be, he did not take advantage of his rights of review within the time required. I am unable to extend that time or to hear his application. For these reasons the objection to competency must be upheld and the application dismissed as incompetent.

9. The respondent has asked for costs. I propose to assess those costs in accordance with Part 21, rule 21.02(2)(a) of the Federal Magistrates Court rules in the sum of $3,000. I order that the applicant pay the respondent's costs in that sum.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 28 August 2002
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