Quevedo-Navarro v Minister for Immigration & Multicultural Affairs [1999] FCA 83 (9 February 1999)

Last Updated: 24 February 1999

CATEGORY: NO QUESTION OF PRINCIPLE

FEDERAL COURT OF AUSTRALIA

Quevedo-Navarro v Minister for Immigration & Multicultural Affairs [1999] FCA 83

FREDY JOSE QUEVEDO-NAVARRO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG842 of 1998

WILCOX, HILL and MADGWICK JJ

9 FEBRUARY 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG842 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	FREDY JOSE QUEVEDO-NAVARRO Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	WILCOX, HILL and MADGWICK JJ
DATE:	9 FEBRUARY 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1 WILCOX J: Before we came into Court today, each of us read the material that had been supplied by the parties. In the case of the appellant, Fredy Jose Quevedo-Navarro, that consisted of a submission which set out a considerable amount of material about his case, a supplementary appeal book, apparently prepared to give the Court additional information to that contained in the original appeal book, and a response to the written submissions prepared by counsel for the respondent, the Minister for Immigration and Multicultural Affairs. We considered all that material.

2 The result is that we feel that we have a good understanding of the case Mr Quevedo-Navarro seeks to make in support of his claim to be regarded as a refugee, pursuant to the Convention on Refugees. He put that claim to the Refugee Review Tribunal, seeking review of a decision by a departmental officer refusing him a protection visa. The Refugee Review Tribunal rejected the application for review and a letter was sent to Mr Quevedo-Navarro on 26 March 1998 informing him of that decision. A copy of the Tribunal's reasons was enclosed.

3 On 29 April 1998, Mr Quevedo-Navarro's then solicitors wrote to the Minister asking him to exercise his discretion under s 417 of the Migration Act 1958 . That application was ultimately refused by the Minister, who wrote to Mr Quevedo-Navarro on 9 June 1998 informing him he had decided not to consider exercising that power. It appears that, at some time in May 1998, Mr Quevedo-Navarro sought a bridging visa to permit him to remain in Australia for the time being. This application was refused, but Mr Quevedo-Navarro took the matter to the Immigration Review Tribunal. On 5 June 1998 that Tribunal granted Mr Quevedo-Navarro a bridging visa. It did so on the basis that it was satisfied that he intended to depart Australia not later than 20 June 1998. The bridging visa was made conditional upon his departure by that time.

4 On 18 June 1998, Mr Quevedo-Navarro filed an application for review in this Court. The application did not clearly indicate the decision in respect of which review was sought. In his reasons for judgment, the primary judge, Moore J, analysed the position and thought there were three decisions that required some consideration.

5 The first decision was that of the Refugee Review Tribunal given on 24 March and notified in the letter of 26 March, refusing the application for a protection visa. Second was the decision of the Minister not to consider exercising his power under s 417 of the Migration Act, and the third was the decision of the Immigration Review Tribunal of 5 June 1998. Moore J held that none of these decisions was able to be reviewed by the Court. I am of the opinion that he is correct in that regard, so this appeal must be dismissed.

6 The application of 18 June 1998 was filed too late to permit review by the Court of the decision of the Refugee Review Tribunal. A decision of the Refugee Review Tribunal falls within the definition of the term, "judicially reviewable decision"; see ss 474 and 475 of the Migration Act 1977 . However, s 478 of the Act provides that an application for review must be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision. Subsection (2) of that section expressly prohibits the Court making an order allowing, or which has the effect of allowing, an applicant to lodge an application outside that period. The result is that, once there has been a lapse of 28 days from notification of the decision, the Court is powerless to grant any extension of time. If an application is lodged outside the 28 day period, the Court has no jurisdiction to determine it. However the time be computed, it is clear that the application of 18 June 1998 was well outside the 28 day period. Section 485(1) of the Act excludes the Court's jurisdiction to review a Tribunal decision, otherwise than under Part VIII of the Migration Act. Specifically it excludes the Court's ordinary powers of review under the Administrative Decisions (Judicial Review) Act and s 39B of the Judiciary Act 1903 . It follows the Court has no power to review the decision of the Refugee Review Tribunal. This is plainly the relief Mr Quevedo-Navarro would wish to obtain from the Court.

7 The second decision is the decision of the Minister not to consider exercising his power under s 417 of the Act. This is a decision that falls within s 475(2) of the Act. The jurisdiction of the Court to review that decision is expressly excluded by s 485(1) of the Act.

8 The third decision identified by Moore J was the decision of the Immigration Review Tribunal of 5 June 1998. The application to this Court was filed within 28 days of that decision. It was filed only 13 days later. However, it is clear that application did not challenge the decision to grant the bridging visa; understandably so, because that decision was favourable to Mr Quevedo-Navarro. I say this is clear because each of the grounds stated in the application refer to the Department of Immigration and Multicultural Affairs and the Refugee Review Tribunal; there is no reference to the Immigration Review Tribunal.

9 In any event, review of the Immigration Review Tribunal decision would accomplish nothing for Mr Quevedo-Navarro. That decision went in his favour. It is true the Tribunal imposed a condition in relation to the date of his departure, but this was because he had indicated he would depart by that date. There would have been no basis for granting a bridging visa on the ground that he had a pending application for review of the Refugee Review Tribunal decision. He did not, no such application was filed within time.

10 I understand Mr Quevedo-Navarro's frustration at being unable to litigate what he says are errors made by the Refugee Review Tribunal. But the Court is bound by the time limits contained in the Act. We are powerless to grant an extension, as I have pointed out. In my opinion, the appeal should be dismissed.

11 HILL J: I agree.

12 MADGWICK J: I agree.

[There was discussion about costs.]

13 WILCOX J: The order of the Court is that the appeal be dismissed and the appellant pay the respondent's costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, Hill and Madgwick.

Associate:

Dated: 9 February 1999

Representative of the Appellant:	Ramon Reyes of L'Amer-Aussies Multinational Refugees Foundation
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 February 1999
Date of Judgment:	9 February 1999