Bistrov v Minister for Immigration and Multicultural Affairs

[2001] FCA 977

FEDERAL COURT OF AUSTRALIA

Bistrov v Minister for Immigration & Multicultural Affairs [2001] FCA 977

Migration Act 1958 ss 430B(6), 441A(1), 478
Migration Regulations 1994 reg 5.03

RONI BISTROV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 681 OF 2001

SUNDBERG J
26 JULY 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 681 OF 2001

BETWEEN:	RONI BISTROV APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SUNDBERG J
DATE OF ORDER:	26 JULY 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the motion notice of which was filed on 16 July 2001.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 681 OF 2001

BETWEEN:	RONI BISTROV APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SUNDBERG J
DATE:	26 JULY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant applied for a protection visa. The application was refused. The refusal was upheld by the Refugee Review Tribunal in a decision handed down on 9 March 2001. The applicant has applied for a review of that decision under Part 8 of the Migration Act 1958. The application was filed on 22 June 2001. The respondent seeks dismissal of the application on the ground that it was not lodged within the time prescribed by s 478(1)(b) of the Migration Act 1958. Section 478 provides:

   “(1)     An application under section 476 or 477 must:

   (a)be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and

   (b)be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.

   (2)The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b).”

2. Section 430B(6) provides:

   “If the applicant is not present at the handing down of the decision, the Tribunal must notify the applicant of the decision by giving the applicant a copy of the statement prepared under subsection 430(1).  The copy must be given to the applicant:

   (a)within 14 days after the day on which the decision is handed down; and

   (b)by one of the methods specified in section 441A.”

   Section 441A(1) provides that:

   “A document specified in subsection (3) is taken to be duly given to an applicant for review if:

   (a)the document is sent (physically, electronically or otherwise) to:

   (i)the last address for service provided by the applicant in connection with his or her application for review; or

   (ii)the last residential address provided by the applicant in connection with his or her application for review; and

   (b)the Tribunal has a receipt or other evidence indicating the date of dispatch.”

   The documents specified in sub‑s (3) include a statement given under s 430B(6).

3. Regulation 5.03(1A) of the Migration Regulations 1994 provides in part as follows:

   “This regulation applies to a document sent by the Minister or a Tribunal to a person in that person’s capacity as:

   (a)      an applicant, of any kind, under the Act or these regulations ….”

   Sub‑regulation (1)(a) provides:

   “For the purposes of the Act and these Regulations, and subject to the Act and specific provision elsewhere in these Regulations, a document is taken to be received by the person to whom it was sent at the time that the document is taken to be received at the address to which the document is sent, which is …

   (a)if the document is sent from a place in Australia to an address in Australia ‑ 7 days after the date of the document ….”

   Sub‑regulation (2) provides:

   “Subregulation (1) does not apply to a document unless it is sent within 7 days after the date of the document.”

4. The Tribunal’s decision affirming the decision not to grant a protection visa was handed down on 9 March 2001. The applicant was not present at the handing down. On that day a letter informing the applicant of the decision and enclosing a copy of the reasons for decision was sent to him by registered post at his residential address as it appeared in his application for review of the Minister’s decision. The date of dispatch of the letter appears from exhibit A. The registered post envelope in evidence shows that it was received at the address for service on 13 March 2001. The letter is endorsed “Return to Sender”. By reason of sub‑reg 5.03(1) the letter is taken to have been received by the applicant on 16 March 2001. The 28 day period prescribed by s 478(1)(b) expired on 6 April 2001. The application to the Court was well outside that period.

5. The Court has no power to extend the prescribed time and the application must be dismissed as the Court has no jurisdiction to entertain it.  Nothing really turns on the dismissal because, as the applicant has stated, the application for a protection visa was made by mistake.  By his own admission, he had applied for the wrong type of visa.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated:             26 July 2001

The applicant appeared in person
Counsel for the Respondent:	C Rawson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 July 2001
Date of Judgment:	26 July 2001