Applicant S1459/2003 v Minister for Immigration and Citizenship [2007] FCA 754

Applicant S1459/2003 v Minister for Immigration and Citizenship [2007] FCA 754

The applicant was taken, by the transitional provisions of the Migration Litigation Reform Act 2005 (Cth), to have been actually notified of the Tribunal's decision on 1 December 2005. The 28-day period in s 477(1) of the Migration Act 1958 (Cth) therefore ran from that date, and s 477(2) did not permit an extension sufficient to cover the application filed in the Federal Magistrates Court on 9 November 2006. The Federal Magistrate correctly held that the application was out of time and incompetent, and the applicant's earlier discontinued Federal Court proceeding did not avoid that result.

Jurisdiction
Australia
Judgment Date
04 May 2007
Procedural Posture
Application for Leave to Appeal From the Federal Magistrates Court of Australia / Leave to Appeal
Outcome
Application for leave to appeal dismissed with costs.
Legal Topics
['protection Visa' 'refugee Review Tribunal' 'judicial Review' 'time Limits' 'jurisdiction' 'leave to Appeal']
['migration Law' 'administrative Law'] ['protection Visa' 'refugee Review Tribunal' 'judicial Review' 'time Limits' 'jurisdiction' 'leave to Appeal']

Case Brief

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Procedural Posture

Application for Leave to Appeal From the Federal Magistrates Court of Australia / Leave to Appeal

Legal Issues

  1. 1 ["Whether leave to appeal was required from the Federal Magistrates Court's interlocutory judgment dismissing the application as incompetent." "Whether the Federal Magistrates Court had jurisdiction to hear the applicant's application for review when it was filed on 9 November 2006." 'Whether the application was out of time under s 477 of the Migration Act 1958 (Cth), as affected by the transitional provisions in the Migration Litigation Reform Act 2005 (Cth).']

Ratio Decidendi

The applicant was taken, by the transitional provisions of the Migration Litigation Reform Act 2005 (Cth), to have been actually notified of the Tribunal's decision on 1 December 2005. The 28-day period in s 477(1) of the Migration Act 1958 (Cth) therefore ran from that date, and s 477(2) did not permit an extension sufficient to cover the application filed in the Federal Magistrates Court on 9 November 2006. The Federal Magistrate correctly held that the application was out of time and incompetent, and the applicant's earlier discontinued Federal Court proceeding did not avoid that result.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • ['The Refugee Review Tribunal be added as second respondent.' 'The name of the first respondent be altered to "Minister for Immigration and Citizenship".' 'The application for leave to appeal be dismissed.' "The applicant pay the first respondent's costs of the application." 'The costs referred to in the immediately...