Ngo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1594

FEDERAL COURT OF AUSTRALIA

Ngo v Minister for Immigration & Multicultural &

Indigenous Affairs [2002] FCA 1594

NGO NGUYEN PHUC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W291 OF 2002 CARR J 18 DECEMBER 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W291 OF 2002

BETWEEN: NGO NGUYEN PHUC

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: CARR J

DATE OF ORDER: 18 DECEMBER 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The respondent's objection to competency, filed on 30 October 2002, is upheld. 2. The application be dismissed. 3. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W291 OF 2002

BETWEEN: NGO NGUYEN PHUC

Applicant

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: CARR J

DATE: 18 DECEMBER 2002

PLACE: PERTH

REASONS FOR JUDGMENT

introduction 1 The Court has before it a notice of objection by the respondent to the competency of the application. By his application the applicant applies for an extension of time in which to "appeal" (which has been taken to be a reference to applying for an order of review) from the decision of the respondent to cancel the applicant's Class BF Subclass 205 Transitional (permanent) visa pursuant to s 501(2) of the Migration Act 1958 (Cth) ("the Act"), on the ground that the applicant did not pass what is known as "the character test". 2 The respondent contends that the Court has no jurisdiction under the Act to review the respondent's decision, as an application for review was not lodged with the Court within 28 days of the applicant being notified of that decision as required by s 477(1) of the Act. On the present state of the authorities relating to extension of time, the only question is whether there is sufficient proof in the evidence before the Court to establish when the applicant was so notified, or is to be taken to have received, the document which is said to have notified him of the respondent's decision.