Applicant S1459/2003 v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The applicant seeks leave to appeal from a judgment of the Federal Magistrates Court of Australia. That Court dismissed his application for an order to show cause, on the basis that it was incompetent, because that Court did not have jurisdiction to hear the application for review as it was filed out of time. (Applicant S1459/2003 v Minister for Immigration and Multicultural Affairs [2006] FMCA 1843). 2 The Refugee Review Tribunal ("the Tribunal") had given its decision on 22 December 1999, affirming a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Delegate" and "the Minister"), refusing the applicant's application for a protection visa. 3 The Federal Magistrate dismissed the application pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). Rule 44.12(2) makes it clear that such an order is interlocutory. Subsection 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal does not lie to this Court from an interlocutory judgment unless the Court or a judge gives leave to appeal. 4 The applicant is a citizen of Sri Lanka, who arrived in Australia with his wife in June 1997. They applied for protection visas on 5 August 1997. Their applications were refused by the Delegate, and, on review, the Tribunal affirmed the Delegate's decision. 5 The applicant received notification of the Tribunal's decision in early January 2000. He and his wife sought judicial review of the Tribunal's decision in this Court but discontinued in favour of becoming represented parties to certain proceedings then pending in the High Court. 6 Pursuant to orders made by Gaudron J in the representative proceedings on 25 November 2002 (High Court proceedings Muin v The Refugee Review Tribunal S36 of 1999 and Lie v The Refugee Review Tribunal S89 of 1999), the applicant later commenced his own order nisi proceeding, seeking review of the Tribunal's decision (High Court proceeding S1459 of 2003). Also pursuant to her Honour's orders, that proceeding brought by the applicant was remitted to this Court upon its being filed, and was given in this Court proceeding number N1750 of 2003. On 20 February 2004, Emmett J made orders in relation to the proceeding and numerous other proceedings, refusing the application for an order nisi: see Applicant S1174 of 2002 v Refugee Review Tribunal (2004) 80 ALD 325; [2004] FCA 289. 7 The present proceeding in the Federal Magistrates Court was commenced on 9 November 2006. The Minister's response was to file on 15 November 2006 a notice of objection to competency, asserting that the Federal Magistrates Court did not have jurisdiction to hear the application. The basis of this contention was that the application was out of time, and that the Court had no power to extend time beyond 23 February 2006. On 12 December 2006, the Federal Magistrates Court upheld that contention. 8 The applicant is not represented. In his draft notice of appeal he states as his proposed grounds of appeal that the Tribunal did not provide him with an opportunity to make comments on information that was adverse to him; that it did not explain to him inconsistencies referred to in the Tribunal's decision; and that his application to the Tribunal was not dealt with according to the requirements of natural justice. The draft notice of appeal does not relate in any way to the reasons for judgment of the Federal Magistrates Court. 9 In his affidavit accompanying his application for leave to appeal, the applicant stated that he had withdrawn his Federal Court application in 2000 as he thought he would have a "better application in [the] class action" - a reference to the representative proceedings in the High Court. The applicant notes that the representative proceeding was, in its early stages, successful, but was later dismissed. He asserts that his claims regarding his fear of persecution in Sri Lanka were not dealt with by the Tribunal. The applicant concluded by seeking leave to "continue [his] application" in this Court that he withdrew in 2000. 10 Section 477 of the Migration Act 1958 (Cth) is as follows: "477 Time limits on applications to the Federal Magistrates Court (1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision. (2) The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if: (a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and (b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so. (3) Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period. (4) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section." 11 As mentioned above, the Tribunal's decision, made on 22 December 1999, was notified to the applicant in early January 2000. Pursuant to the transitional provision contained in Pt 2, item 42 of Sch 1 to the Migration Litigation Reform Act 2005 (Cth) ("the Reform Act"), for the purposes of s 477 of the Act, the applicant is taken to have been actually notified of the decision on 1 December 2005. The provision to which I have just referred, item 42, is as follows: "Where proceedings are commenced on or after the commencement day in relation to a migration decision made before the commencement day, and actual notification of the decision is given before the commencement day: (a) section 477 of the Migration Act 1958applies as if the actual notification of the decision took place on the commencement day;…" 12 The "commencement day" referred to in item 42 is defined at item 40 as the day on which Sch 1 commenced, and pursuant to s 2(1) Sch 1 was to commence on a date fixed by proclamation. That date was 1 December 2005 (see column 3 of s 2(1) of the Reform Act). 13 Accordingly, the Federal Magistrate was correct in holding that for the purposes of s 477, the applicant is taken to have been actually notified of the Tribunal's decision on 1 December 2005. 14 The 28-day period referred to in s 477(1) is therefore to be calculated from 1 December 2005, and s 477(2) did not give the Federal Magistrates Court power to extend the 28-day period for a period sufficient to embrace the filing of the application in the Federal Magistrates Court on 9 November 2006. 15 His Honour, the Federal Magistrate, therefore correctly concluded that the application before the Federal Magistrates Court was out of time and incompetent. This result is not avoided by the applicant's having commenced in this Court a proceeding in 2000 that he discontinued in favour of pursuing a different course. 16 The application for leave to appeal will be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.