FEDERAL COURT OF AUSTRALIA

Ibrahim v Minister for Immigration and Multicultural Affairs [2001] FCA 950

Migration Act 1958 (Cth) s 478

Re Refugee Review Tribunal;  ex parte Aala (2000) 176 ALR 219

AHMED IBRAHIM V Minister for Immigration & Multicultural Affairs

S 84 OF 2001

von DOUSSA J

16 JULY 2001

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This matter is before the court on the first return date following the issue of the application on 22 June 2001.  The applicant seeks judicial review pursuant to Part 8 of the Migration Act 1958 (Cth) (the Act) of a decision of the Refugee Review Tribunal and an extension of time in which to lodge his application for judicial review.

2                     It is plain from the papers on the court file that the decision was given by the Tribunal on 8 May 2001.  An affidavit from the solicitor for the respondent deposes on hearsay information that the decision was sent by facsimile to the Woomera Detention Centre on 8 May 2001, and documents exhibited to the affidavit suggests that a copy of the decision was delivered to the applicant that day.  There is further information on the court file that confirms that at least by 16 May 2001 the applicant had received the decision and was seeking legal assistance in respect of it from the Legal Services Commission in South Australia.  At that time it was open to him to seek review under Part 8 as the 28-day time limit imposed by s 478(1) of the Act had not expired. 

3                     For reasons that are not apparent on the court file there were delays on the part of those to whom the applicant had turned for assistance with the result that the applicant’s papers did not come into the possession of someone who was prepared to act on his behalf until after the matter was out of time. 

4                     When the applicant’s papers came into the possession of someone who was prepared to take action on his behalf.  This application was issued but by that time the 28-day time limit had expired and the court therefore was without jurisdiction.

5                     Where the 28-day time limit has expired there is no power to extend time and nothing can be done to revive the rights to seek review of the Tribunal’s decision in this court:  Kucuk v Minister for Immigration and Multicultural Affairs [2001] FCA 535.  This Court’s lack of power to extend time flows directly from s 478(2) of the Act which reads:

“(2)     The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b).”

6                     As the court is without jurisdiction in my opinion the application should be dismissed at this stage.  There is no point in standing it over for the applicant’s solicitors to obtain further instructions as the matter is plainly out of time.  For these reasons the application will be dismissed, and in accordance with the usual practice of the court costs must follow the event. 

7                     It should, however, be noted that whilst the applicant cannot seek a remedy in this court, the restrictions imposed by s 478 only apply to the Federal Court.  They do not apply to the High Court of Australia, and the applicant may have a remedy available in that court under s 75(v) of the Constitution if there is any substance in his allegation that the Tribunal breached the fair hearing rule by failing to put, or adequately to put to the applicant that the Tribunal considered that the applicant could return to Pakistan:  see re Refugee Review Tribunal;  ex parte Aala (2000) 176 ALR 219.

I certify that the preceding seven

numbered paragraphs are a true copy of the

Reasons for Judgment herein of the

Honourable Justice von Doussa.

Associate:

Dated:

Counsel for the Applicant:                     Mr C S E Swan

Solicitors for the Applicant:                   Swan Lawyers

Counsel for the Respondent:                 Ms K Southcott

Solicitors for the Respondent:                Sparke Helmore

Date of Hearing:                                   16 July 2001

Date of Judgment:                                 16 July 2001