Duwai v Minister for Immigration & Multicultural Affairs [1999] FCA 1309

FEDERAL COURT OF AUSTRALIA

Duwai v Minister for Immigration & Multicultural Affairs [1999] FCA 1309 MIGRATION – objection to competency – whether application was filed more than twenty-eight days after applicant notified of decision – requirements of notice under s 478(1)(b) of Migration Act 1958 (Cth) – whether s 478(2) of Migration Act creates a jurisdictional bar to an application filed outside the twenty-eight day period.

Migration Act 1958 (Cth), ss 200, 201, 475(1), 476(1), 478(1), 478(2), 485(1), 501, 502 Judiciary Act 1903 (Cth), s 39B

Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164, followed Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386, followed Al Achrafi v Minister for Immigration and Multicultural Affairs (1997) 46 ALD 550, followed

WAISEA DUWAI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 706 OF 1999 JUDGE: SACKVILLE J PLACE: SYDNEY DATE: 16 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 706 OF 1999

BETWEEN: WAISEA DUWAI

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: SACKVILLE J

DATE OF ORDER: 16 SEPTEMBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 706 OF 1999

BETWEEN: WAISEA DUWAI

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: SACKVILLE J

DATE: 16 SEPTEMBER 1999

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

The Proceedings 1 This is the hearing of a notice of objection to competency filed by the respondent ("the Minister") on 27 July 1999. The Minister objects to the jurisdiction of this Court to determine an application for an order of review filed by the applicant on 21 July 1999. The grounds specified in the notice of objection to competency are that the application was filed more than twenty-eight days after the applicant was notified of the relevant decision, and that s 478(2) of the Migration Act 1958 (Cth) ("Migration Act") expressly precludes the Court from allowing the applicant to lodge his application outside the twenty-eight day period specified in s 478(1)(b) of the Migration Act. 2 The application, which was filed at a time when the applicant was in immigration detention, does not precisely identify the decision under challenge, but it does refer to a "decision to cancel my permanent residence visa in Australia". This is clearly a reference to a decision made by the Minister on 16 October 1998, pursuant to s 501 of the Migration Act, to cancel the applicant's Transitional Permanent Visa, granted on 25 September 1989. The application asserts that the applicant does not recall being handed the document by the Department of Immigration and Multicultural Affairs, and claims that he was not notified about the cancellation of his visa. The application does not identify any substantive grounds upon which the Minister's decision to cancel the visa should be set aside.