Byun v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 1060

FEDERAL COURT OF AUSTRALIA

Byun v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCA 1060

BYUN & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND MIGRATION REVIEW TRIBUNAL
NSD 1151 OF 2006

JACOBSON J
8 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1151 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

DAE WON BYUN
First Applicant

YOUNG OCK KIM
Second Applicant

JUN HYEONG BYUN
Third Applicant

JAE HYEONG BYUN
Fourth Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	8 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave to appeal is refused.

2.The Applicants pay the First 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
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1151 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

DAE WON BYUN
First Applicant

YOUNG OCK KIM
Second Applicant

JUN HYEONG BYUN
Third Applicant

JAE HYEONG BYUN
Fourth Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE:	8 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicants who are citizens of Korea apply for leave to appeal from a decision of Federal Magistrate Driver who summarily dismissed an application for review of a decision of the Migration Review Tribunal (MRT). The MRT found that the application for review was ineligible because it was not made within the time period prescribed by s 347 of the Migration Act 1958 (Cth) and the relevant regulation. The Federal Magistrate’s decision was interlocutory and leave to appeal is required. The principles on which leave to appeal is granted are well established and it is unnecessary to repeat them; see Decor Corporation Pty Ltd & Anor v Dart Industries Inc (1991) 33 FCR 397.

2. The MRT does not have power to embark upon a review without having before it a valid application made within the prescribed time.  Moreover, the MRT has no authority by statute, or otherwise, to extend the time; see SZBWD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 253 per Allsop J.

3. The MRT found that the application was filed six days out of time because the decision of the delegate who refused to grant the relevant visa was taken to have been received by the applicants on 3 August 2005; see s 494C(4) of the Migration Act. Thus the application for review by the MRT which was filed on 30 August 2005 was filed six days after the expiry of the time fixed by s 347 and paragraph 4.10(1)(a) of the Migration Regulations. Federal Magistrate Driver found that in those circumstances the MRT had not option but to conclude that the review application was ineligible. His Honour come to that conclusion notwithstanding the fact that there appeared to the learned Federal Magistrate to be some material which supported the contention that there were problems in receipt of mail from the Minister’s department.

4. As the learned Federal Magistrate observed there may appear to be an injustice in the result. However it is an injustice which results from the express terms of the Migration Act. Parliament has not followed up upon the suggestion made by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 126, at [223]-[224] that the legislation should be amended so as to confer a discretion to extend time. Federal Magistrate Driver also referred at paragraph 8 to other decisions in which similar observations have been made.

5. The clear terms of the Migration Act provide a complete answer to the grounds of appeal which the applicant wishes to run. The provisions to which I have referred also provide answer to the claim of denial of procedural fairness; see VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570 at 578, at [33]. Nevertheless as Allsop J observed in SZBWD at [12] if there is evidence of jurisdictional error in the delegate’s decision the High Court has authority under section 75(v) of the Constitution to control the exercise of administrative power.

6. It is not appropriate for me to make any comment one way or another as to whether there is or may be any jurisdictional error disclosed in the delegate’s decision. That issue does not arise before me.

7. It follows from what I have said that there are no prospects of success in the proposed appeal in the present proceedings accordingly the orders I will make are leave to appeal be refused with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:        8 August 2006

The Applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 August 2006
Date of Judgment:	8 August 2006