FEDERAL COURT OF AUSTRALIA

SZEKC v Minister for Immigration and Multicultural Affairs [2006] FCA 1065

SZEKC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 779 OF 2006

COWDROY J

15 AUGUST 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1                     The appellant appeals the decision of Driver FM delivered on 4 April 2006, which dismissed an application for review of a decision of the Refugee Review Tribunal handed down on 17 August 2004. That application was made pursuant to s 476 of the Migration Act 1958 (Cth), which grants to the Federal Magistrates Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

2                     The application to the Federal Magistrates Court of Australia was filed on 14 March 2006 and indicated that the appellant had been notified of the decision of the Tribunal on 27 August 2004.

3                     Section 477 of the Migration Actprovides:

‘(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                     Section 477 in its current form was inserted by the Migration Litigation Reform Act 2005 (Cth) (‘the Reform Act’). The Reform Act commenced on 15 November 2005, except for Sch 1, which commenced on 1 December 2005. Item 42 of Pt 2 of Sch 1 to the Reform Act relevantly provides:

‘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 1958 appliesas if the actual notification of the decision took place on the commencement day; and

…’

‘Commencement day’ means the date of commencement of Sch 1: see Sch 1 Pt 2 Item 40. Accordingly, for the purposes of s 477 of the Migration Act, the appellant is taken to have been actually notified of the decision of the Tribunal on 1 December 2005.

5                     Pursuant to s 477, the appellant has a total of 84 days from the commencement of Sch 1 to the Reform Act, that is from 1 December 2005, in which to file an application for review in the Federal Magistrates Court. In the first 28 days of that 84 day period, no leave is required to file the application. If an application is filed in the ensuing 56 days, the Federal Magistrates Court may grant an extension of time for filing the application. However there is no discretion under s 477 for the Federal Magistrates Court to extend the period for filing beyond the 84 day period. The appellant did not file a notice of appeal within this period, but rather filed his appeal on 14 March 2006, over 100 days after the he was taken to be actually notified of the decision. Accordingly, Driver FM was correct to uphold the first respondent’s objection to competency and to dismiss the appeal.

6                     The appellant has referred to several cases which indicate that there is no time limit in respect of decisions affected by jurisdictional error. These cases were decided before the above-mentioned amendments to the Migration Act. Under the Migration Act as amended, the time limits affect all migration decisions, whether or not affected by jurisdictional error. This is made clear by the definition of ‘migration decision’ contained in s 5 of the Migration Act, as follows:

‘“migration decision” means:

(a) a privative clause decision; or

(b)               a purported privative clause decision; or

(c)               a non-privative clause decision.’

7                     Accordingly, the appeal should be dismissed with costs. I note in passing that the appellant should properly have filed an application for leave to appeal, because the decision of Driver FM was interlocutory. I note also that the appellant has in fact already appealed the same decision of the Tribunal to the Federal Magistrates Court and then to this Court. His challenges to the Tribunal decision were dismissed on the merits. Accordingly, this is not a case in which the application of time limits has deprived the appellant of an opportunity to have the merits of his case heard.

Associate:

Dated: 15 August 2006