Guirguis v Minister for Immigration and Multicultural Affairs

[2000] FCA 1930

FEDERAL COURT OF AUSTRALIA

Guirguis v Minister for Immigration & Multicultural Affairs [2000] FCA 1930

SAMY YOUSSEF SALEM GUIRGUIS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1207 OF 2000

EMMETT J
15 DECEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1207 OF 2000

BETWEEN:	SAMY YOUSSEF SALEM GUIRGUIS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	15 DECEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

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 1207 OF 2000

BETWEEN:	SAMY YOUSSEF SALEM GUIRGUIS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	15 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa under the Migration Act1958 (Cth). That application was lodged on 1 September 1999. On 9 September 1999 a delegate of the Minister refused to grant a protection visa. A letter dated 9 November 1999 was sent to the applicant. The letter notified him of the decision. The applicant sought review of the decision by the Refugee Review Tribunal (“the Tribunal”). The application for review was lodged on 10 August 2000.

2. On 3 November 2000 the Tribunal determined that it did not have jurisdiction to review the decision refusing to grant a protection visa.  From that decision the applicant has applied to this Court for an order of review.  In the application to this Court the applicant says that details of the application will be sent at a later date.  No details have been furnished.

3. The Tribunal was satisfied that the Minister's letter of 9 November 1999 complied with the statutory requirements concerning notification of a decision.  The Tribunal in its reasons for determining that it did not have jurisdiction observed that the applicant had stated on 30 October 2000 that he had never received the letter advising him of the decision because it was either never sent to him or it was lost in the mail.  The Tribunal did not accept that the applicant had not received notification of the decision to refuse him a protection visa.  The Tribunal also noted that, by his own admission, the applicant was aware, after receiving the notification of the primary decision, of the 28 day period in which he had to lodge an application.  The application for review was not in fact received by the Tribunal until 275 days after the notice was sent.

4. In March 2000, the applicant wrote to the Minister saying, inter alia, as follows:

   “I…am Writing to you requesting your kind support in helping me from a wrong action That was done against me by an immigration consultant. 

   Briefly, I asked Mr. Raef George (Migration Consultant) to act on my behalf in my Case with the Refugee Review Tribunal.  After he got all the details of my case, He said that he would charge me $500.  At that time I paid him $400. on Agreement, that I would pay the remaining $100. later on, once he lodged my Application . He promised to prepare the application and lodge it.  After few Weeks I went to his office to pay the rest of the money, after asking about my Application. I was shocked that he had not lodged my application in the Appointed 28 days time period.  When I asked Why, he claimed that he it was Because I had not paid him the $100 outstanding.  When I asked whether my Application. Could be lodge now, he answered that no, it was too late, bad luck.”

   The terms of that communication constitute a clear acknowledgment of receipt by the applicant of notification of the decision of the Minister’s delegate.

5. Under s 412(1)(b) of the Migration Act 1958 (Cth), an application for review of a Tribunal reviewable decision, must be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision. The decision of the delegate in question was a Tribunal reviewable decision, within the meaning of s 412. The time limit for applying to the Tribunal cannot be extended – see Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324.

6. It is not entirely clear when the applicant received notification of the decision.  However, it is clear that he had received notification by the time of writing the letter to the Minister.  On that basis, the latest time for filing of an application for review to the Tribunal, would have been 24 March 2000.  It is clear in my view that the Tribunal had no jurisdiction to entertain the application that was lodged in August 2000.  Accordingly I perceive no error in the determination by the Tribunal that it did not have jurisdiction to deal with the matter.

7. No grounds have been advanced before this Court, as to why this Court should interfere with the determination by the Tribunal.  It follows in my opinion that this application should be dismissed 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 Emmett.

Associate:

Dated:             21 December 2000

The applicant appeared in person
Solicitor for the Respondent:	Mr G Cranwell for Clayton Utz
Date of Hearing:	15 December 2000
Date of Judgment:	15 December 2000