Lee v Minister for Immigration and Citizenship [2007] FCA 128

Lee v Minister for Immigration and Citizenship [2007] FCA 128

The Tribunal decision was deemed by the transitional provisions to have been made on 1 December 2005, so the judicial review application had to be filed within 28 days and any extension application within 84 days of that date. Because the applicant filed in the Federal Magistrates Court on 18 July 2006, outside those limits, the Federal Magistrates Court had no jurisdiction to entertain the application or extend time. The Federal Magistrate was therefore right to dismiss the application as incompetent, and there was no prospect that an appeal would succeed.

Jurisdiction
Australia
Judgment Date
16 February 2007
Procedural Posture
Application for Leave to Appeal in Migration Judicial Review Proceedings / Application for Extension of Time Within Which to Apply for Leave to Appeal and Application for Leave to Appeal From an Interlocutory Order of a Federal Magistrate
Outcome
Application for extension of time refused; application for leave to appeal dismissed; applicant ordered to pay the first respondent's costs.
Legal Topics
['occupational Trainee Subclass 442 Visa' 'judicial Review of Migration Decision' 'extension of Time' 'leave to Appeal' 'jurisdictional Time Limits']
['migration Law' 'administrative Law' 'federal Civil Procedure'] ['occupational Trainee Subclass 442 Visa' 'judicial Review of Migration Decision' 'extension of Time' 'leave to Appeal' 'jurisdictional Time Limits']

Case Brief

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Procedural Posture

Application for Leave to Appeal in Migration Judicial Review Proceedings / Application for Extension of Time Within Which to Apply for Leave to Appeal and Application for Leave to Appeal From an Interlocutory Order of a Federal Magistrate

Legal Issues

  1. 1 ['Whether time should be extended for the applicant to apply for leave to appeal.' "Whether leave to appeal should be granted from the Federal Magistrate's dismissal of the judicial review application as incompetent." 'Whether the Federal Magistrates Court had jurisdiction to entertain the judicial review application filed outside the time limits in s 477 of the Migration Act.']

Ratio Decidendi

The Tribunal decision was deemed by the transitional provisions to have been made on 1 December 2005, so the judicial review application had to be filed within 28 days and any extension application within 84 days of that date. Because the applicant filed in the Federal Magistrates Court on 18 July 2006, outside those limits, the Federal Magistrates Court had no jurisdiction to entertain the application or extend time. The Federal Magistrate was therefore right to dismiss the application as incompetent, and there was no prospect that an appeal would succeed.

Court Disposition

Application for extension of time refused; application for leave to appeal dismissed; applicant ordered to pay the first respondent's costs.

Orders

  • ['The title of the first respondent be Minister for Immigration and Citizenship.' 'The application for an extension of time within which to apply for leave to appeal be refused.' 'The application for leave to appeal be dismissed.' "The applicant pay the first respondent's costs."]