VDAQ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 On 4 June 2002, the applicant filed an application for an order of review of the decision of the Refugee Review Tribunal ("the Tribunal") dated 7 January 2000. The Tribunal affirmed the decision of the respondent's delegate, dated 4 December 1997, not to grant the applicant a protection visa pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act"). The application was filed by the applicant personally and he did not have the benefit of legal representation or assistance. The grounds of the application were that the Tribunal failed to accept the documentary evidence placed before it and failed to understand the nature of the applicant's position, being a member of a minority group. The applicant claimed that he had a well‑founded fear of being persecuted if he returned to his country of origin, and that the Tribunal made an error in not awarding him refugee status. 2 On 11 June 2002, the respondent filed a notice of appearance. On 10 July 2002, the respondent filed a notice of objection to competency, objecting to the jurisdiction of the Court to hear the application in the following terms: "The respondent objects to the jurisdiction of this Court to hear this application for an order of review under the Judiciary Act 1903 or the Migration Act 1958 ('Act') on the ground that, under section 477 of the Act, the application was made to the Federal Court out of time." 3 The notice of objection to competency was not filed within the time prescribed by O 54B r 3 of the Federal Court Rules. On 10 July 2002 I gave the respondent leave to file and serve the notice of objection to competency out of time, as it appeared to me that the issue raised by the notice would inevitably have to be determined at any hearing of the application. I set down a notice of objection to competency for hearing on 18 July 2002. 4 The respondent's solicitor has sworn an affidavit in which he said that the Tribunal's handing down information form records that the Tribunal handed down its decision on 7 January 2000 and that the applicant, his adviser, his brother and his sister‑in‑law attended the handing down of the decision. When the applicant was before the Court on 10 and 18 July 2002, he agreed that he was present at the Tribunal on 7 January 2000 when the decision was handed down. 5 In the course of submissions, the applicant informed me that he did not receive the actual written decision for about two weeks after 7 January 2000. Nothing turns on whether he was notified of the decision on 7 January or within two weeks thereafter given the events which subsequently occurred. The applicant said that at that time - that is, in January 2000 - he did not file an application for review with the Federal Court because he could not obtain legal advice and did not know how to file the papers with the Court. He said that he did not have any money to retain a private lawyer, although at the time he thought that the Tribunal decision was wrong. 6 Section 477(1) of the Act provides: "An application to the Federal Court under section 39B of the Judiciary Act 1903 for: (a) a writ of mandamus, prohibition or certiorari; or (b) an injunction or a declaration; in respect of a privative clause decision in relation to which the jurisdiction of the Federal Court is not excluded by section 476 must be made to the Federal Court within 28 days of the notification of the decision." For present purposes, I am prepared to accept that the applicant's application falls within the description of the applications which can be made under s 477(1) of the Act, although I have considerable doubts, having regard to the form of the application, as to whether that is an appropriate description of it. Nevertheless, for present purposes, I am prepared to assume that fact in favour of the applicant. 7 The applicant was notified of the Tribunal's decision, for the purpose of s 477(1) of the Act, on 7 January 2000 or, at the latest, within two weeks thereafter. He did not make the present application to the Court for review of the Tribunal's decision within twenty‑eight days of that notification. 8 It therefore follows that the Court has no jurisdiction to entertain or hear the application. This situation may be productive of hardship and unfortunate results, but the Court is bound to observe and implement the legislative scheme. The Court has no power to extend the time within which the applicant may lodge an application for review of the Tribunal's decision. Section 477(2) of the Act provides: "The Federal Court or the Federal Magistrates 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 (1A) outside the period specified in that subsection." 9 Although s 477 in its current form was introduced into the Act and became effective on 2 October 2001 - that is, after the decision of the Tribunal was handed down - that section nevertheless applies to the application for review as it was lodged after 2 October 2001: Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) sch 1, item 8. 10 Prior to 2 October 2001, s 478 of the Act, as it then applied, provided that an application for review must be lodged with the Federal Court within twenty‑eight days of the applicant being notified of the decision, and that the Court must now allow an extension of that time for lodging any application. There have been a number of cases which have considered the effect and consequences of s 478. In short, the time limit provided by s 478 before 2 October 2001, and by parity of reasoning, having regard to the similarity of the language, the time limit provided by s 477 in its present form, is absolute. If that time limit is not complied with, the Court has no jurisdiction to entertain any application filed subsequent to the expiration of that time: see Oguzhan v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 285 at 291; Kucuk v Minister for Immigration and Multicultural Affairs [2001] FCA 535; Abidin v Minister for Immigration and Multicultural Affairs [2001] FCA 842. 11 The objection to competency will be allowed. The Court has no jurisdiction to entertain the application, which will be dismissed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.