Abidin v Minister for Immigration and Multicultural Affairs [2001] FCA 842

Abidin v Minister for Immigration and Multicultural Affairs [2001] FCA 842

Although the applicant placed the application in the DIMA box at the Port Hedland Detention Centre on 30 November 2000, the application was not lodged for the purposes of s 478(1)(b) until it came into the possession of the Federal Court Registry, which occurred by fax on 7 December 2000 after the 5 December 2000 deadline. Bound by Hong, the Court held the application was out of time. Section 478(1)(b) is a valid law defining the jurisdiction of the Federal Court under s 77(i) of the Constitution, so the Court had no jurisdiction to entertain the application.

Jurisdiction
Australia
Judgment Date
16 July 2001
Procedural Posture
Application for Review Under Pt 8 of the Migration Act 1958 (cth) of a Refugee Review Tribunal Decision Affirming Refusal of a Protection Visa / Respondent's Notice of Objection to Competency and Constitutional Challenge to S 478
Outcome
Respondent's objection to competency upheld and application dismissed with costs.
Legal Topics
['protection Visa' 'refugee Review Tribunal Review' 'time Limit for Lodging Federal Court Application' 'meaning of Lodged' 'validity of Migration Act 1958 (cth) S 478' 'jurisdiction of the Federal Court']
['migration Law' 'administrative Law' 'constitutional Law' 'federal Jurisdiction'] ['protection Visa' 'refugee Review Tribunal Review' 'time Limit for Lodging Federal Court Application' 'meaning of Lodged' 'validity of Migration Act 1958 (cth) S 478' 'jurisdiction of the Federal Court']

Case Brief

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Procedural Posture

Application for Review Under Pt 8 of the Migration Act 1958 (cth) of a Refugee Review Tribunal Decision Affirming Refusal of a Protection Visa / Respondent's Notice of Objection to Competency and Constitutional Challenge to S 478

Legal Issues

  1. 1 ['Whether the application for review was lodged within 28 days as required by s 478(1)(b) of the Migration Act 1958 (Cth) when the applicant placed it in a DIMA box at the detention centre within time but it was received by the Federal Court Registry after time expired.' 'Whether s 478 of the Migration Act 1958 (Cth), construed as requiring receipt by the Federal Court Registry within 28 days, is constitutionally valid.']

Ratio Decidendi

Although the applicant placed the application in the DIMA box at the Port Hedland Detention Centre on 30 November 2000, the application was not lodged for the purposes of s 478(1)(b) until it came into the possession of the Federal Court Registry, which occurred by fax on 7 December 2000 after the 5 December 2000 deadline. Bound by Hong, the Court held the application was out of time. Section 478(1)(b) is a valid law defining the jurisdiction of the Federal Court under s 77(i) of the Constitution, so the Court had no jurisdiction to entertain the application.

Court Disposition

Respondent's objection to competency upheld and application dismissed with costs.

Orders

  • ["The respondent's objection to competency is upheld." 'The application is dismissed.' "The applicant pay the respondent's costs to be taxed."]