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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's decision to refuse to grant a protection visa - time limit for filing review application.

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NAPI v MInister for Immigration [2002] FMCA 247 (14 October 2002)

NAPI v MInister for Immigration [2002] FMCA 247 (14 October 2002)
Last Updated: 25 October 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAPI v MINISTER FOR IMMIGRATION
[2002] FMCA 247



MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's decision to refuse to grant a protection visa - time limit for filing review application.

PRACTICE AND PROCEDURE - Objection to competency - application filed out of time.

COSTS - Whether former solicitors for applicant should pay the respondent's costs where the applicant acted on advice to his detriment.



Federal Magistrates Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.417, 430B, 441A, 441C, 477

VDAQ v Minister for Immigration [2002] FCA 545

Applicant:
NAPI



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ773 of 2002



Delivered on:


14 October 2002



Delivered at:


Sydney



Hearing Date:


14 October 2002



Judgment of:


Driver FM



REPRESENTATION

Counsel for the Applicant:


Mr D Burwood



Solicitors for the Respondent:


Ms S Hanstein

Blake Dawson Waldron


ORDERS

(1) The application for review of the decision of the Refugee Review Tribunal is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed at $1,800.

(3) Subject to any written submissions made by the applicant's former solicitors within 28 days of entry of these orders, the solicitors, Young Kim Lawyers, of Level 8, Manchester Unity Building, 307 Pitt Street, Sydney, are to pay the costs that the applicant has been ordered to pay, pursuant to order 2.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ773 of 2002

NAPI


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This ex tempore judgment relates to an objection, filed by the respondent Minister in these proceedings on 26 September 2002, to the competency of an application for review filed in the Federal Court on 23 July 2002, relating to a decision of the Refugee Review Tribunal ("the RRT") made on 28 December 2001 and handed down on 30 January 2002.

2. The Minister objects to the competency of the application for review on the basis that the application was not made within 28 days of notification of the decision of the RRT and that pursuant to s.441A(4) and s.441C(4) of the Migration Act ("the Migration Act"), the applicant is taken to have been notified of the RRT's decision by 8 February 2002. The application was not filed until 23 July 2002.

3. Two affidavits were filed in Court by leave this afternoon in support of the objection to competency. These were by Melissa Inga Gwendolyn Asimus, made on 11 October 2002, and by Sharon Elizabeth Hanstein, made on 14 October 2002. The affidavit of Ms Asimus annexes a letter to her from the RRT enclosing what purports to be a copy of the RRT's registered post register which, on the last page annexed to the affidavit, purports to include reference to a registered post article sent to the solicitor for the applicant at the solicitor's address in Pitt Street, Sydney, on 31 January 2002.

4. The affidavit of Ms Hanstein annexes a record of the RRT dealing with the applicant and his legal advisers. This establishes that the solicitor to whom the correspondence was apparently sent on 31 January 2002 commenced representing the applicant on 17 October 2001.

5. The other document annexed to Ms Hanstein's affidavit is a copy of a letter sent to the applicant's solicitor on 12 March 2002 by the Honourable Gary Hardgrave MP, referring to a request made to the Minister that he exercise his powers under s.417 of the Migration Act to substitute a more favourable decision for the decision of the RRT. The implication from that letter is that the applicant, through his solicitor, was aware of the decision of the RRT some time prior to 12 March 2002.

6. The issue of time limits relating to applications to the Federal Court and this Court has been dealt with in the Federal Court in the matter of VDAQ v Minister for Immigration [2002] FCA 545. In that case, on 18 July 2002, his Honour Goldberg J gave judgment on the terms of the legislation as it now stands. The relevant provisions to which I was taken by Ms Hanstein for the Minister are ss.477(1), 430B(6), 441A(4), and 441C - either (3) or (4) - and in particular, (4).

7. The effect of those provisions is that provided that an applicant is notified of a decision of the RRT by a prescribed means within a prescribed time, the applicant is taken to have been notified seven days after the date of the giving of notification, and the applicant then has 28 days from that time to apply to the Federal Court or this Court for review of the decision of the RRT.

8. In VDAQ, Goldberg J confirmed that the effect of s.477(1) of the Act is to deprive the Federal Court, and for that matter this Court, of jurisdiction in relation to an application where the applicant has not filed within the stipulated time of 28 days. That conclusion appears to me to be beyond doubt.

9. Mr Burwood, for the applicant, handed up a chronology which includes reference to an application made on behalf of the applicant to the Minister on 26 February 2002 under s.417 of the Migration Act. The applicant, through his solicitors, was inviting the Minister to intervene to substitute a more favourable decision to that of the RRT. It follows that, while not expressly conceded, the applicant must concede that he, either directly or through his solicitors, was made aware of the decision of the RRT by that date, 26 February 2002.

10. Mr Burwood told me, after seeking instructions from his client, that the applicant was advised by his solicitors to pursue that course in preference to an application to the Federal Court or this Court to review the decision of the RRT. Whatever considerations may have underlied that advice, assuming it was given, the consequence was to deprive the applicant of his rights of appeal to the Federal Court or this Court. That was because it was only after the applicant was notified of the adverse decision of the Minister on the application to him to intervene that the applicant filed his appeal in the Federal Court on 23 July 2002. I note that the solicitors for the applicant informed the Minister's solicitors on or about 23 September 2002 that they had ceased to act for the applicant, although no notice appears to have been filed under rule 9.03 of the Federal Magistrates Court Rules 2001 (Cth). It seems that the solicitors have not appeared on the court record, although they seem to have been giving some instructions to Mr Burwood.

11. I am bound to conclude on the facts presented to me that the application was not made within 28 days of notification of the RRT decision to the applicant or to his legal advisers. Accordingly, neither the Federal Court nor this Court has jurisdiction to deal with the application any further. Accordingly, I must dismiss the application.

12. Having heard the representatives on the issue of costs I am persuaded that the Minister is entitled to an order for costs in accordance with the general principle that costs follow the event. I am satisfied that there is no special circumstance in these proceedings warranting a departure from that general principle. The Minister has, through Ms Hanstein, indicated the legal costs actually incurred to date are in the order of $2,600 and Ms Hanstein submits that those are the costs which are sought.

13. In accordance with the ordinary principle that costs should be awarded on a party-party basis, it would be appropriate for me to make an order for costs for a majority but not the totality of those costs. My general practice is to make an order for costs to be paid in a fixed amount in migration proceedings of this nature and that is the course that I am going to follow in this case. I will then, in addition to ordering that the application be dismissed, order that the applicant pay the Minister's costs of and incidental to the application fixed in the amount of $1,800.

14. I will further order that subject to any written submissions made by the applicant's former solicitors within 28 days of the entry of these orders, those solicitors, namely Young Kim Lawyers, of Level 8, Manchester Unity Building, 307 Pitt Street, Sydney, are to pay the costs that the applicant has been ordered to pay pursuant to order 2 on the basis that they were negligent in advising the applicant to pursue an application to the Minister under s.417 of the Migration Act in advance of any application for review to the Federal Court or this Court.

15. I will direct that a transcript be obtained and be made available to the solicitors so that they can see from the record of these proceedings what, if anything, they wish to say in relation to the conditional order that they pay those costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 23 October 2002
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