MZNAX v Minister for Immigration
[2004] FMCA 214
•6 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZNAX v MINISTER FOR IMMIGRATION | [2004] FMCA 214 |
| 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”. |
Migration Act 1958, ss.412(1)(b), 494B, 494(b)(4), 494 (1), 494(2)
Migration Regulations 1994, r.4.31
MZNAW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 213
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
Minister for Primary Industry v Austral Fisheries Pty Ltd (1993) 40 FCR 381
Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 377
| Applicant: | MZNAX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 309 of 2003 |
| Delivered on: | 6 April 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 6 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: | Blake Dawson Waldron |
ORDERS
That the Application is dismissed.
The Applicant is to pay the Respondent's costs fixed at $4840.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 309 of 2003
| MZNAX |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application to review by way of prerogative writ a decision of the Refugee Review Tribunal made on 26 February 2003. By that decision the tribunal determined that it did not have jurisdiction to review the decision refusing to grant the applicant a protection visa. The facts of this case are not materially different from a case I decided yesterday, MZNAW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 213, number MZ 308 of 2003.
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. The application was refused by a delegate of the minister in a decision dated 29 August 2002. The applicant applied to the Refugee Review Tribunal for review of that decision. The application was received by the tribunal on 8 October 2002. The tribunal determined that the application was received later than the 28-day period which was required as a combination of
sub-s.412(1)(b) of the Migration Act 1958 and reg.4.31 of the Migration Regulations 1994. It was in fact one day out of time.
The application for review alleges breach of natural justice on the part of the tribunal, although that was not argued today. Indeed, it could not be argued because by letter dated 17 December 2002 the tribunal advised the applicant that the application appeared to be out of time and invited a response and the applicant responded by letter dated 6 January 2003.
The circumstances in which the application was received out of time are unfortunate. What was put before the tribunal was that the applicant had a migration agent acting for him. The application for review was prepared and was signed and ready to be sent on 7 October 2002. The applicant's adviser suffered a severe migraine and had to go home. The adviser, the migration agent, left instructions to an assistant for the application to be sent by facsimile to the tribunal. Unfortunately the facsimile machine was malfunctioning and it was not until 8 October 2003 that the migration agent discovered that the fax had not gone through. The application was not sent until 8 October 2003.
There is no doubt that the notification of the delegate's decision was dispatched or was given to the applicant's migration agent by one of the methods prescribed in s.494B of the Migration Act, that is, by dispatching the document within three working days of the date of the document by prepaid post or other prepaid means to the address for service. Under sub-s.494B(4), if the document is given by this method it is deemed to have been received seven working days after the date of the document. The effect of sub-ss.494(1) and (2) is that the document can be sent to an authorised recipient if one has been notified to the minister by the applicant, and that had in fact happened in this case. The migration agent was notified as an authorised recipient.
Decisions of the Federal Court have determined that once the application is out of time the tribunal has no jurisdiction. Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407 a Full Court decision and subsequently two decisions by a single Judge, 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.
Mr Cheung appeared for the applicant and in submissions he referred to Minister for Primary Industry v Austral Fisheries Pty Ltd (1993) 40 FCR 381 and Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 377. Both of those cases deal with situations where regulations prescribed time limits for applications for review or appeal from decisions which in certain circumstances were impossible to meet. In certain circumstances they could require an applicant to lodge the application for review or appeal prior to receiving notification of the primary decision and the courts in those cases saw those as unreasonable situations, not a valid exercise of the rule‑making power. But that is not the case here. The time limits here are described by statute. In this case the applicant did receive notice through his agent. The applicant did in fact have the application for review prepared and the circumstances I have described meant that it was out of time.
In the contentions of fact and law filed on behalf of the applicant an argument is put that the 28 days is working days. That is not correct. Section 5 of the Migration Act has a definition of working days. There is no definition of "day". Day has its ordinary meaning in s.412 and includes Saturday, Sundays and public holidays. Mr Cheung submits that on compassionate and humanitarian grounds the applicant should be entitled to have his application for review of the decision of the delegate of the minister dealt with on its merits. Whatever basis there is for thinking that the applicant is badly done by, by being a day late, indeed only a few hours out of time, the legislation has prescribed the time limit. The legislation has not made any provision for extension of time. There is no room for any discretion either in the Refugee Review Tribunal or in a court exercising prerogative writ jurisdiction. The application is dismissed.
The applicant must pay the respondent's costs. The respondent is the successful party. There is no basis for not applying the normal rule. Costs are sought in the amount of $5800. As I have said, there was an identical case determined yesterday and I allowed $4840. I will allow the same amount today.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: R. Campbell
Date: 27 April 2004
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