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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.

SAAB v Minister for Immigration [2002] FMCA 148 (17 July 2002)

SAAB v Minister for Immigration [2002] FMCA 148 (17 July 2002)
Last Updated: 25 July 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAAB v MINISTER FOR IMMIGRATION
[2002] FMCA 148



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) ss. 477(1)(A), (2)

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

Applicant:
SAAB



Respondent:


MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 359 of 2002



Delivered on:


17 July 2002



Delivered at:


Sydney



Hearing Date:


17 July 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) The objection to competency be upheld.

(2) Application dismissed.

(3) Applicant pay the respondent's costs in the sum of $1,500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 359 of 2002

SAAB


Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This is an application by the applicant for review of a decision of the Refugee Review Tribunal handed down on 5 October 2001. The applicant is a native of Estonia who has been in Australia for some time. In the course of his application for protection he employed a migration agent, the Immigration and Refugee Specialists Pty Limited of Little Collins Street, Melbourne.

2. On 19 October 1999 that company filed with the Refugee Review Tribunal a form 956 being an "appointment of person to act as agent". It was signed by the applicant. The effect of that document was to permit service of communications from the Tribunal, including decisions, to be properly effected by sending them by pre-paid post to the agent.

3. In an affidavit of 28 June 2002 Angela Nanson, a senior lawyer in the employment of the Australian Government Solicitor deposes to these matters and to the service of the decision of the Tribunal upon the applicant at both the address for service which I have previously mentioned and also his then last known residential address in the Liverpool area of New South Wales. I am satisfied that service of the document was in accordance with the regime laid down in Division 7A, ss. 441AA to 441G of the Migration Act 1958 (Cth) and that service of the Tribunal's decision was effective by 12 October 2001.

4. In accordance with the provisions of s.477(1)(A) Migration Act any application to review that decision had to be made either to the Federal Court or this court by 9 November 2001. No application was lodged within that time.

5. The applicant in his submissions has accepted that he received the documents within time. He says that he immediately applied to the Minister for approval of his application. By this I presume he made a personal appeal to the Minister to override the decision of the Tribunal on humanitarian or other grounds. In any event, he appears to have done nothing about his rights of review until receiving advice from the Minister that his application had been rejected. Then on 28 May 2002 some five months after the decision had been given to him he filed the application for review.

6. In Kucuk v MIMA [2001] FCA 535, Hely J, dealt with a notice of competency in respect of an application not filed within time. The decision of Hely J dealt with the situation prior to the amendments to the Act which took effect from 2 October 2001. His Honour made reference in that judgment to s.478(1)(b) of the Migration Act as it then was. That section has now effectively been translated into s.477(2) of the Act. That section provides:

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

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 the particular case."

7. 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.

8. 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 $1,500. I order that the applicant pay the respondent's costs in that sum.

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

Associate:

Date: 17 July 2002
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