MZNAW v Minister for Immigration

[2004] FMCA 213

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZNAW v MINISTER FOR IMMIGRATION [2004] FMCA 213

MIGRATION – Application for relief under s.39 of the Judiciary Act 1903 – application to Refugee Review Tribunal out of time – decision by Tribunal of no jurisdiction correct – no distinction to be made from binding authority – meaning “days” – days does not mean “working days”.

Judiciary Act 1903, s.39
Migration Act 1958, ss.412(1), 412(1)(b), 494(D)(1), 494(D)(2)
Migration Regulations 1994, reg.4.31(2)(b)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407

VOAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 397
VOAM v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 396
Alkaab v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 375
Minister for Primary Industry v Austral Fisheries Pty Ltd (1993) 40 FCR 381
Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377
H v Minister for Immigration and Multicultural Affairs [2002] FCA 126

Applicant: MZNAW

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MZ 308 of 2003

Delivered on: 5 April 2004

Delivered at: Melbourne

Hearing Date: 5 April 2004

Judgment of: Phipps FM

REPRESENTATION

Counsel for the Applicant: Mr Cheung

Solicitors for the Applicant: David Cheung

Counsel for the Respondent: Ms H.M. Riley

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the Application is dismissed.

2. That the Applicant pay the Respondent’s costs fixed at $4,840.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 308 of 2003

MZNAW

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant has applied for relief under s.39 of the Judiciary Act 1903 in relation to a decision of the Refugee Review Tribunal which was made on 26 February 2003.  In the application filed in this court the applicant seeks certiorari, prohibition, mandamus and injunction in respect of that application. 

2. The applicant is a Sinhalese citizen of Sri Lanka.  He entered Australia on 13 April 2002 on a temporary business visa.  On 10 May 2002 he made application for a protection visa.  That application was refused by a delegate of the minister by a decision dated 29 August 2002.  The applicant applied to the Refugee Review Tribunal for review of that decision on 8 October 2002.  The Refugee Review Tribunal in its decision of 26 February 2003 determined that the application was out of time and therefore it had no power to conduct a review. 

3. In the application lodged with this court on 28 March 2003 one of the grounds put forward is breach of natural justice by the Refugee Review Tribunal.  In fact the tribunal by letter dated 17 December 2002 advised the applicant that it considered that the application was out of time and invited comment from the applicant.  The applicant responded by way of letter dated 6 January 2003 and then subsequently the tribunal made its decision.  Therefore there is no basis for alleging breach of natural justice by the tribunal in reaching its decision.  In any event, if it is correct that it had no power, had no jurisdiction to review the delegate's decision, any lack of procedural fairness would make no difference (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321).

4. The time limit for applying to the Refugee Review Tribunal to review a delegate's decision is provided for in sub-s.412(1) of the Migration Act 1958. Here the applicant was not in immigration detention so that the relevant period is 28 days as prescribed by paragraph (b) of that subsection. That 28-day provision is also referred to in reg.4.31(2)(b) of the Migration Regulations 1994. 

5. In this case the applicant was represented for the purposes of the application for the protection visa by a migration agent. Written notice of the name and address of that person had been given to the minister and therefore by reason of sub-ss.494D(1) and (2) of the Migration Act, notices under the Act could be given to the migration agent. Subsection (2) provides that if the minister gives a document to the authorised recipient the minister is taken to have given the document to the first person. However, this does not prevent the minister giving the first person a copy of this document.

6. There is no issue in this case that notification was given to the applicant's migration agent. The tribunal set out in its reasons that the document had been despatched within three working days. This is one of the methods prescribed under s.494B of the Migration Act and therefore it was deemed to have been received seven working days after being sent. The notice of the decision of the delegate of the minister was sent by registered mail to the applicant's migration agent on 29 August 2002. As I have already said, that was within three working days of the decision being made. It was therefore deemed to have been received by 9 September 2002. The 28-day period within which the review application must be lodged, assuming that working days are included in the calculation, ended on 7 October 2002. The application for review was not received until 8 October 2002.

7. The explanation for it being late, which was accepted by the tribunal, was that the applicant's adviser suffered a severe migraine in the afternoon on 7 October 2002.  The application was prepared and ready for dispatch in the afternoon of 7 October 2002, however due to the severe migraine the agent left the office and left instructions with an assistant to fax the review application to the tribunal.  The fax machine malfunctioned, unknown to anybody in the office, and this was not realised by the applicant's adviser until midday the next day.  Steps were then taken to send the application to the tribunal.  Therefore, it was a day late, unless working days have to be counted in the 28 days. 

8. It was submitted on behalf of the applicant that working days should be included within the 28 days. That is plainly incorrect. Section 5 of the Migration Act contains a definition of "working days", and that excludes Saturday, Sunday and public holidays. Section 412 of the Migration Act describes the period as 28 days. It does not describe the period as 28 working days. The Migration Act itself does not contain any definition of a day. There are provisions within the Acts Interpretation Act which deals with how a reference to "days" is to be dealt with. There is nothing at all to suggest that in s.412 "day" should not be given its ordinary meaning; that is, that it includes Saturdays, Sundays, public holidays and any other holidays.

9. There is indication within the Act which strengthens the view that "days" had its ordinary meaning; that is, the fact that a definition of "working days" is included.  Therefore, the application was received one day out of time. 

10. The submission which has been put on behalf of the applicant is that in effect the court should not allow an injustice to be done to the applicant.  Through no fault of his own the applicant's application was out of time.  There is an explanation for it being received out of time which had been accepted by the tribunal.  In those circumstances there would be significant injustice, indeed more than significant injustice, a great injustice, it is submitted, done to the applicant if the review application could not proceed.

11. I consider that the question of whether the Refugee Review Tribunal does not have jurisdiction if an application is out of time has been decided, so far as this court is concerned, by the Full Court of the Federal Court in Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407. That was a decision of Heerey, Finkelstein and Dowsett JJ. That decision decided that if the time limit prescribed by s.412 of the Migration Act was not met there was no jurisdiction in the tribunal. That is, as far as this court is concerned, the end of the matter.

12. I note that subsequent to that decision French J in VOAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 397 and VOAM v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 396 has applied those decisions.

13. In submissions on behalf of the applicant Mr Cheung referred to Alkaab v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 375 where Tamberlin J said, the considerations which underpin the approaches to be taken to notification provisions in the Migration Act and the regulations, at page 379.

    On the one hand, these considerations include the desirability for jurisdictional certainty, efficiency, and uniformity in administrative and judicial review proceedings, and on the other hand, the avoidance of hardship and injustice arising from the imposition of arbitrary time limits based on deemed or constructive notification, which may not accord with reality.

14. He also referred me to Minister for Primary Industry v Austral Fisheries Pty Ltd (1993) 40 FCR 381 where it was held that delegated legislation which is harsh and unreasonable may be declared to be invalid. A similar issue was dealt with in Minister for Immigration and Multicultural Affairs v Singh (2000) FCA 377 where, as the regulations then stood in relation to deemed notification, it was possible for there to be a deemed notification even before the decision had been posted.

15. The issue is decided by Fernando.  I can see no distinction to be made between that case and this one.  The time limit is prescribed by the legislation.  There is no basis for saying that there is delegated legislation which is so harsh or so unreasonable that it ought to be ruled to be invalid.  This is not delegated legislation.  In any event, it is a case where it is accepted that the notification was received and there is no basis for saying that the regulations which provide for posting by registered post and then a deemed receipt within seven days is invalid.  It is similar to provisions contained in court rules and in service provisions in interpretation legislation. 

16. In the contentions on behalf of the applicant, H v Minister for Immigration and Multicultural Affairs (2002) FCA 126 is referred to, but that was not a case such as this case. That was a case where notice was given to both the applicant and the migration agent. The tribunal had looked only at the date on which the applicant had received notification. The review application was out of time if that date was taken, but it was within time when the date of notification of the migration agent was looked at. That is a different situation to this case.

17. I note that in Singh, O'Connor and Mansfield JJ said at paragraph 32:

    The purpose of the provisions under consideration is to provide a scheme to achieve administrative certainty in the manner and time of giving notice of decisions made with respect to visa applications and as to the expiry date for any application to review such decisions.  The decision has clearly been taken by the legislators that that objective should override the injustice which may occur because a particular visa applicant sometimes entirely without fault on that person's part does not in fact receive that notice in a timely way as in the case of Mr Singh or in some cases, such as Dawai and Tabet, at all.

18. This is not a case where notification was not received.  This was a case where unfortunate circumstances led to the application being one day out of time.  What O'Connor and Mansfield JJ were saying in Singh applies with even greater strength to this case.  The legislation has determined that there should be a time limit.  If the time limit is not met, there is no jurisdiction.  The reason why the time limit is not met is irrelevant, unless in some way it leads to an argument that the time limit has been met.  That is not the case here.  The time limit was not met.  There was no jurisdiction in the tribunal and the tribunal's decision is correct; it had no jurisdiction.  There is no basis for relief.  The application is dismissed.

19. An application has been made for costs.  The respondent is a successful party and there is no reason why the normal rule should not apply.  The amount sought is $4840.  That is within the range that is the practice of this court to order in these types of cases.  I order that the applicant pay the respondent's costs fixed at $4840. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: 

Date: