NACG v Minister for Immigration & Multicultural Affairs

[2002] FCAFC 173

FEDERAL COURT OF AUSTRALIA

NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173

APPLICANT(S) NACG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1556 OF 2001

APPLICANT(S) NACH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1557 OF 2001

MADGWICK, DOWSETT & STONE JJ
24 MAY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY		N1556 OF 2001
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:	APPLICANT(S) NACG APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MADGWICK, DOWSETT & STONE JJ
DATE OF ORDER:	24 MAY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

1.        The appellant 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	N1557 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT(S) NACH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MADGWICK, DOWSETT & STONE JJ
DATE OF ORDER:	24 MAY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

1.        The appellant 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	N1556 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT(S) NACG APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
N1557 OF 2001
BETWEEN:	APPLICANT(S) NACH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK, DOWSETT & STONE JJ
DATE:	24 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MADGWICK J:

1. I agree with the reasons for judgment of Stone J.

2. The judgment of the Court therefore is that the appeals should be dismissed and that the appellants should pay the costs of the appeal.  This is the judgment of the Court in each case.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madwick.

Associate:

Dated:             11 June 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1556 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT(S) NACG APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
N1557 OF 2001
BETWEEN:	APPLICANT(S) NACH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK, DOWSETT & STONE JJ
DATE:	24 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

DOWSETT J:

1. I also agree with the reasons for judgment of Stone J.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             11 June 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1556 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT(S) NACG APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
N1557 OF 2001
BETWEEN:	APPLICANT(S) NACH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK, DOWSETT & STONE JJ
DATE:	24 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

STONE J:

1. We have before us today two appeals which raise essentially the same issues. Both these appeals deal with applications lodged on 23 August 2000 for protection visas. The appellants were both assisted by the same migration agents and made virtually identical claims of fear of persecution.

2. The decision of a delegate of the Minister to refuse the application for protection visas was made on 12 September 2000 and it would appear that letters advising of these decisions were mailed to both appellants on 13 September 2000. Under s 412(1)(b) of the Migration Act1958 (Cth) (“the Act”) an application for review of such a decision must be made within 28 days of the decision being notified. The Act and its regulations provide that if advice of a decision is posted within three days of the decision having been made then the notification of the decision is deemed to have occurred seven days after the date of the decision. In both these cases then the decision is deemed by those provisions to have been notified by 19 September or, at the very latest, 20 September 2000.

3. It would appear that applications for a review of this decision were signed by both appellants well within the 28 day period and that the appellants were told by their then migration agent that the applications had been sent so that they would be received well within the statutory period. However, it was accepted by the Tribunal and subsequently by the primary judge in this case that the documents were not received by the registry of the Tribunal until 9 November 2000. That date is a date which is well outside the 28 day period provided by the Act.

4. As a result the Tribunal decided that it had no jurisdiction to review the delegate's decision. This is based on the indisputable fact that the Act does not allow for any extension or variation of the 28 day period. The primary judge upheld the decision of the Tribunal. It would appear that the primary judge, with the cooperation of the Minister, went to some effort to allow the appellants time to produce additional evidence which might support their claim that the applications had been made in time and no such evidence was forthcoming.

5. It is very unfortunate that in this case it would appear that, entirely through no fault of the appellants, their applications were not received in time. The inexorable and inevitable result is that the Tribunal had no jurisdiction to review the decisions and the primary judge was correct in so deciding. This Court has no jurisdiction to review the Tribunal’s decision and it must uphold the decision of the primary judge. I would therefore dismiss the appeals with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             11 June 2002

Counsel for the Appellant (NACG):	The appellant appeared in person
Counsel for the Appellant (NACH):	No appearance
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	24 May 2002
Date of Judgment:	24 May 2002