Byun v Minister for Immigration

[2006] FMCA 639

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BYUN & ORS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 639

MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of show cause application as failing to disclose an arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.347, 494B, 494C

Chung v Minister for Immigration & Anor [2006] FMCA 624
Re Minister for Immigration; ex parte Miah (2001) 197 ALR 238
SZBMF v Minister for Immigration [2005] FMCA 925
SZCTH v Minister for Immigration (No 2) [2004] FMCA 284
SZIOU v Minister for Immigration [2006] FMCA 602

First Applicant: DAE WON BYUN

Second Applicant: YOUNG OCK KIM

Third Applicant: JUN HYEONG BYUN

Fourth Applicant: JAE HYEONG BYUN

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG3835 of 2005

Judgment of: Driver FM

Hearing date: 1 May 2006

Delivered at: Sydney

Delivered on: 1 May 2006

REPRESENTATION

The First Applicant appeared in person and on behalf of the Second, Third and Fourth Applicants

Solicitors for the Respondents: Ms S Hanstein
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, pursuant to rule 44.15(1) and item 1(b) of Part 2 to Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3835 of 2005

DAE WON BYUN

First Applicant

YOUNG OCK KIM

Second Applicant

JUN HYEONG BYUN

Third Applicant

JAE HYEONG BYUN

Fourth Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for an order to show cause why relief should not be granted in relation to a decision of the Migration Review Tribunal (“the MRT”).  The application was filed on 23 December 2005 and asserts notification of the MRT decision on 22 November 2005.  No issue was raised concerning the time limit for filing the application in this Court.

2. The MRT found that the application for review before it was ineligible because it was not made to the MRT within the time period prescribed under s.347 of the Migration Act 1958 (Cth) (“the Migration Act”). Relevantly the presiding member says on page 31 of the court book:

   The Tribunal finds that the review applicant was required to give his application for review to the Tribunal within 21 calendar days after the day when the delegate notified him of the decision.  The last day within the prescribed period that the review applicant could have made application for review was 24 August 2005.  The review applicant did not give the application for review to the Tribunal until 30 August 2005. 

3. It followed that the application was received six days late. 

4. The application before the Court and an affidavit filed the same day supporting it assert that the applicants could not apply in time to the MRT because of problems in receiving their mail.  In addition to the first applicant's affidavit I have before me a book of relevant documents filed by the Minister on 27 February 2006.  On page 10 of the court book is a letter from Australia Post to the Department of Immigration which appears, on its face, to support the applicant's contention that there were problems in the receipt of mail from the Minister's Department.

5. The first applicant repeated these assertions in a fax to the MRT dated 12 October 2005 (court book, page 28). In his reasons for decision the presiding member noted the first applicant's explanation for the lateness of the review application but found that nevertheless the application was ineligible. The presiding member relied upon s.494C(4) of the Migration Act in his reasons. That section relevantly provides that if the Minister gives a document to a person by a method prescribed in s.494B(4) of the Migration Act, which involves despatching the document by pre-paid post or by other means, the person is taken to have received the document, if the document was despatched from a place in Australia to an address in Australia, seven working days after the date of the document. The presiding member did not consider specifically in his reasons whether s.494B(4) had been complied with. That section relevantly prescribes a method of dispatch as dispatch within three working days of the date of the document.

6. I gave leave for Ms Hanstein, for the Minister, to file in court an affidavit made on 1 May 2006 by Laura Gazi dealing with that issue.  I received the affidavit.  Annexed to the affidavit are printouts from a departmental computer system which indicate that the notification letter sent to the first applicant, which appears on page 13 of the court book, was sent by registered post on the date that it was dated, namely 23 July 2005.  I note that the letter was also sent to the applicant's authorised recipient at the same address (court book, page 11).  That was the address for the authorised recipient nominated by the first applicant in his visa application (court book, page 7).

7. It follows, and I find, that the Minister's department complied with s.494B(4) of the Migration Act and accordingly the presiding member of the MRT was correct in finding that s.494C(4) applied. It followed that the MRT had no option but to conclude that the review application had been received late and was hence ineligible.

8. The first applicant no doubt considers that an unjust result.  This Court and the High Court have on several occasions expressed the view that review tribunals should have the power to extend time limits for review applications[1].  The fact is, however, that review tribunals do not have that power.  The MRT was correct in finding the review application ineligible.  The application before me must fail.

   [1] see SZCTH v Minister for Immigration (No 2) [2004] FMCA 284 at [26]-[27]; SZBMF v Minister for Immigration [2005] FMCA 925 at [8]; SZIOU v Minister for Immigration [2006] FMCA 602 at [5] and Chung v Minister for Immigration & Anor [2006] FMCA 624 at [7]; Re Minister for Immigration; ex parte Miah (2001) 197 ALR 238 at [223]-[224]

9. I find that the application before the Court fails to disclose an arguable case. I order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

10. The application having been dismissed, costs should follow the event. The Minister seeks an order for scale costs which in this case would be $2,500. The applicant did not make any submissions on costs. I will order that the first and second applicants pay the first respondent's costs and disbursements of and incidental to the application in accordance with rule 44.15(1) and item 1(b) of part 2 to schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  23 May 2006