Ye v MIMA [1998] FCA 341

Ye v MIMA [1998] FCA 341

An application to review a Refugee Review Tribunal decision is "lodged" with a Registry for the purposes of Migration Act 1958 (Cth) s 478 when it comes into the possession of the Registry. Because the appellant's application was received by facsimile transmission at the New South Wales Registry on 30 May 1997, within 28 days of notification of the Tribunal decision, it was lodged within time notwithstanding that it was later misplaced and not stamped as filed until 11 June 1997.

Jurisdiction
Australia
Judgment Date
08 April 1998
Procedural Posture
Appeal From a Judge of the Federal Court of Australia Concerning an Application to Review a Refugee Review Tribunal Decision / Application for Leave to Appeal and Appeal From the Order of Tamberlin J Dismissing the Application
Outcome
Application for leave to appeal granted; appeal allowed; order of Tamberlin J set aside; notice of objection to competency and motion on notice dismissed; respondent ordered to pay costs.
Legal Topics
['lodgment of Application by Facsimile Transmission' 'meaning of "lodged" in Migration Act 1958 (cth) S 478' 'distinction Between Lodging and Filing' 'fresh Evidence on Appeal' 'time Limit for Judicial Review of Refugee Review Tribunal Decision']
['migration Law' 'administrative Law' 'practice and Procedure' 'statutory Interpretation'] ['lodgment of Application by Facsimile Transmission' 'meaning of "lodged" in Migration Act 1958 (cth) S 478' 'distinction Between Lodging and Filing' 'fresh Evidence on Appeal' 'time Limit for Judicial Review of Refugee Review Tribunal Decision']

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Procedural Posture

Appeal From a Judge of the Federal Court of Australia Concerning an Application to Review a Refugee Review Tribunal Decision / Application for Leave to Appeal and Appeal From the Order of Tamberlin J Dismissing the Application

Legal Issues

  1. 1 ['Whether the Federal Court had jurisdiction to hear and determine an application to review a Refugee Review Tribunal decision where the application was sent to the Registry by facsimile transmission.' 'Whether an application sent by facsimile transmission was "lodged" with a Registry of the Federal Court within the meaning of Migration Act 1958 (Cth) s 478.' 'Whether the appellant should be granted leave to appeal if leave was required.' 'Whether the appellant should be permitted to rely on further evidence on appeal showing receipt of the facsimile transmission by the Registry.']

Ratio Decidendi

An application to review a Refugee Review Tribunal decision is "lodged" with a Registry for the purposes of Migration Act 1958 (Cth) s 478 when it comes into the possession of the Registry. Because the appellant's application was received by facsimile transmission at the New South Wales Registry on 30 May 1997, within 28 days of notification of the Tribunal decision, it was lodged within time notwithstanding that it was later misplaced and not stamped as filed until 11 June 1997.

Court Disposition

Application for leave to appeal granted; appeal allowed; order of Tamberlin J set aside; notice of objection to competency and motion on notice dismissed; respondent ordered to pay costs.

Orders

  • ['Application for leave to appeal granted.' 'Appeal allowed.' 'Set aside the order of Tamberlin J made on 25 September 1997 and in lieu thereof order that the notice of objection to competency and the motion on notice each filed on 30 July 1997 be dismissed.' "Respondent to pay the appellant's costs of the appeal...