Asaduzzaman v Minister for Immigration and Multicultural Affairs

[2001] FCA 793

FEDERAL COURT OF AUSTRALIA

Asaduzzaman v Minister for Immigration & Multicultural Affairs [2001] FCA 793

MIGRATION – application to Migration Review Tribunal made out of time – whether application to Court for review of Deputy Registrar of Tribunal’s decision that application was out of time, competent.

Migration Act 1958 (Cth) ss 347, 475(1)(c), 476(1), 485, 486
Migration Regulations 1994 (Cth) reg 4.10(1)(a)

Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 324 applied

MOHAMMAD ASADUZZAMAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 109 OF 2001

LINDGREN J
15 JUNE 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 109 OF 2001

BETWEEN:	MOHAMMAD ASADUZZAMAN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	15 JUNE 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed as incompetent.

2.The applicant pay the respondent’s costs.

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 109 OF 2001

BETWEEN:	MOHAMMAD ASADUZZAMAN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	15 JUNE 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the applicant purports to seek review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 15 January 2001.  I have said “a decision of the Migration Review Tribunal” but what happened on 15 January 2001 is that an officer of the Tribunal, on behalf of the Deputy Registrar of the Tribunal, wrote to the applicant's representative stating that the application to the Tribunal would "now be finalised" and "the Tribunal's records updated accordingly."  The Deputy Registrar took the view, correctly in my opinion, that the Tribunal did not have jurisdiction to entertain the application to the Tribunal because it was made out of time.

2. Counsel for the Minister has taken the position that the Deputy Registrar had made a decision under the Migration Act 1958 (Cth) ("the Act") relating to a visa within par 475(1)(c) of the Act, so that this Court’s jurisdiction given by Part 8 of the Act is enlivened: see subs 476(1) and ss 485 and 486 of the Act. I am content to assume, without deciding, that this view is correct, that is, that the Deputy Registrar's decision that the application was out of time was a decision made under the Act relating to a visa.

3. The background facts can be shortly stated.  It was apparently on 6 November 2000 that the applicant applied for a student (temporary) visa.  I say "apparently" because the application in the papers before the Court bears date 9 November 2000, although there is other evidence that the application was lodged with the Department of Immigration and Multicultural Affairs on 6 November 2000.  Nothing turns on the date.

4. On 17 November 2000 a delegate of the Minister decided to refuse to grant the visa. On the same day, 17 November 2000, notification of the refusal was posted to the applicant at the address which he had given in his application for the visa.  The applicant received that notice on 23 November 2000.  His application to the Tribunal was received by it on 21 December 2000, that is, on the 28th day after the applicant’s receipt of the notice from the Department.

5. I turn now to the legislative provisions. Subsection 338(2) of the Act defines the expression "MRT-reviewable decision" so as to include the decision refusing to grant the applicant the visa in question. Section 347 provides that an application for review of an MRT-reviewable decision must be given to the Tribunal within "the prescribed period" being, relevantly, a period ending not later than 28 days after the notification of the decision (see par 347(1)(b)(i)). In this case "the prescribed period" was the period starting when the applicant received notice of the decision and ending at the end of 21 days after the day on which the notice was received: Regulation 4.10(1)(a) of the Migration Regulations 1994.  Accordingly, the prescribed period ended on the facts of this case at the end of 14 December 2000.

6. In Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 324, a Full Court of this Court had to consider an analogous time limit for the making of applications to the Refugee Review Tribunal for review of RRT‑reviewable decisions. Like s 347, subs 412(1) of the Act provided that such an application must be given to the Refugee Review Tribunal within the prescribed period, being a period ending not later than 28 days after the notification of the decision. Migration Regulation 4.31 prescribed, relevantly, a period of 28 days commencing on the date on which the applicant was notified of the decision.

7. The Full Court held that the Tribunal did not have power to entertain an application given to it outside that period:  see par [31] per Heerey J, [44] and [52] per Finkelstein J, with both of whom Dowsett J agreed.  Clearly the Full Court's decision applies also to the 21-day time limit for an application to the Tribunal for review of an MRT‑reviewable decision.  The only permissible result in the case is that the present application to this Court must be dismissed as incompetent.

8. [There was brief discussion about costs.]

9. In relation to costs, there is no reason why my discretion should not be exercised in the usual way, that is, why costs should not follow the event.  I order the applicant to pay the respondent’s costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             26 June 2001

The Applicant appeared in person.
Solicitor for the Respondent:	Mr G Cranwell of Clayton Utz
Date of Hearing:	15 June 2001
Date of Judgment:	15 June 2001