FEDERAL COURT OF AUSTRALIA

Asakerah v Minister for Immigration and Multicultural Affairs

[2001] FCA 1713

ASAKERAH v MINISTER FOR IMMIGRATION AND MULTICULTURAL

AFFAIRS

W 243 of 2001

CARR J

4 DECEMBER 2001

PERTH

THE COURT ORDERS THAT:

1.         The respondent’s objection to competency be upheld.

2.         The application be dismissed.

3.         The applicant pay the respondent’s costs of the proceedings.

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

REASONS FOR JUDGMENT

introduction

1                     This is an objection to competency, notice of which was filed by the respondent on 9 July 2001.  The respondent objects to the jurisdiction of this Court to determine an application for an order of review lodged by the applicant on 15 June 2001.  The respondent specifies two grounds in his notice of objection to competency.  The first is that the application, for review of a decision by the Refugee Review Tribunal on 19 April 2001, was not lodged with a registry of this Court within 28 days of the applicant being notified of the Tribunal’s decision, as required by former s 478(1)(b) of the Migration Act 1958 (Cth) (“the Act”).  The second is that the Court’s jurisdiction to review the Tribunal’s decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) is specifically excluded by former s 485 of the Act in respect of “judicially-reviewable decisions” and that the Tribunal’s decision in this matter is a “judicially-reviewable decision” under the Act.  Both ss 478 and 485 of the Act continue to apply to this matter by reason of the date upon which the application was filed – see s 3 and Part 2 of Schedule 1 of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).

factual background

2                     The applicant is an Iranian citizen who arrived in Australia on 2 November 2000 and lodged an application for a protection visa on 15 November 2000.  On 16 February 2001 a delegate of the respondent refused to grant a protection visa to the applicant.  On 20 February 2001 the applicant applied to the Refugee Review Tribunal for review of that decision.  On 19 April 2001 the Tribunal affirmed the delegate’s decision not to grant a protection visa to the applicant. 

3                     In paragraph 3 of his application, the applicant states that he was notified of the Tribunal’s decision on 23 April 2001.  There is also some documentary evidence confirming this (see the affidavit of Ms Ria Vavakis sworn on 27 November 2001 and the annexures to that affidavit) that a faxed copy of the Tribunal’s decision and reasons was handed to the applicant on 23 April 2001.  See also to like effect the affidavit of Ms Diane Miller sworn on 3 December 2001.

4                     At the hearing today the applicant told me that he could not remember the date upon which he was notified of the Tribunal’s decision, but did not dispute the respondent’s evidence.  He said that the failure to lodge the application in time was due to it having been sent by mistake to the wrong place.  I find that the applicant was notified of the Tribunal’s decision on 23 April 2001 but did not lodge his application until 15 June 2001.

Whether time may be extended

5                     Former section 478(1)(b) is specific.  It provides that an application of the type with which this matter is concerned must be lodged within 28 days of the applicant being notified of the decision.  Former section 478(2) relevantly provides that this Court must not make an order extending time.

6                     The authorities are quite clear that this Court cannot extend the relevant time.  It is sufficient to refer to the reasons for judgment of a Full Court of this Court in Nirmalan v Minister for Immigration and Multicultural Affairs [1998] FCA 672 at [2].  In that case the Full Court noted that the primary judge, in circumstances indistinguishable from the circumstances of the present case, had no choice but to dismiss the application for an order of review of the Tribunal’s decision.

7                     It is quite clear that the Tribunal’s decision in this matter was a “judicially-reviewable decision” within the meaning of former s 475 of the Act.  Former s 485 of the Act excludes review of such a decision by this Court other than under Part 8 of the Act [in which s 478(1)(b) was located] or on remittal from the High Court of Australia under s 44 of the Judiciary Act.

8                     The applicant has not identified any decision other than that of the Tribunal, which he seeks to challenge.

9                     In those circumstances I am obliged by the express provisions of the Act to uphold the respondent’s objection to competency and dismiss the application.

A/g Associate:

Dated:              4 December  2001