NANS v Ors v Minister for Immigration & Anor
[2007] FMCA 898
•8 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NANS & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 898 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. MIGRATION – Visa – protection visa – refusal – Tribunal functus officio – application to Tribunal filed out of time. |
| Federal Magistrates Court Rules 2001, r.44.12 Migration Act 1958, ss.91X, 412, 494B Migration Regulations 1994, reg.4.31 |
| VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570 Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18 SZASP v Minister for Immigration & Citizenship [2007] FCA 771 |
| Applicants: | NANS, NANX, NANY & NANZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1078 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 8 June 2007 |
| Date of Last Submission: | 8 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 June 2007 |
REPRESENTATION
The applicants appeared in person.
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Pursuant to r.44.12 of the Rules of Court, the application be dismissed.
The first and second applicants pay the first respondent’s costs fixed in the amount of $2,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1078 of 2007
| NANS, NANX, NANY & NANZ |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 3 April 2007 the applicants seek review of a decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 26 March 2007 where it concluded that it had no jurisdiction to review an earlier decision of the delegate of the first respondent dated 18 March 2002 refusing the applicants' application for a protection visa.
These proceedings are listed today for a show cause hearing. Given the history of the applicants' applications for protection visas in this country set out in the affidavit of Melissa Leigh Jolley sworn 27 April 2007, it is worth setting out the relevant aspects of that chronology.
On 11 January 2002 the applicants filed their application for a protection visa. On 18 March 2002 the Minister's delegate made his decision. The delegate's decision was notified to the applicants by letter dated 18 March 2002. Following an application for review to the Tribunal, the Tribunal concluded on 25 March 2003 that it would affirm the decision of the delegate. An application for judicial review in respect of that decision was made and was determined by Driver FM on 22 December 2003 when his Honour dismissed the applicants' application. On appeal in the Federal Court Stone J dismissed the applicants' appeal on 7 April 2004. On 20 May 2004 the applicants filed an application for special leave to appeal to the High Court which was deemed abandoned on 14 January 2005. On 1 February 2007 the applicants filed a second application for review of the delegate's decision with the Tribunal and on 26 March 2007 the Tribunal signed its decision in which it concluded it had no jurisdiction. The application for these proceedings was filed, as I said, on 3 April 2007.
There are two issues arising in relation to the Tribunal's decision. The first is whether the application to the Tribunal was made out of time, and the second was whether the Tribunal had jurisdiction to entertain the application at all.
In order for an application for review to the Tribunal to have been made in time s.412 of the Migration Act 1958 (“Act”) and reg.4.31 of the Migration Regulations 1994 (“Regulations”) work together to set out what is required. The combined effect of the section and the regulation is that an application for review must be lodged with the Tribunal within 28 days after notification of the decision. The way the statutory formula works is that if the notification of the delegate's decision is posted to the applicant in accordance with s.494B(4), as the Tribunal found on this occasion that it was, the document is deemed to have been received by the applicant seven working days after the date which the document bears. In the circumstances of this matter that date is 27 March 2002.
By virtue of s.412 and reg.4.31, the applicant had 28 days within which to lodge the application to the Tribunal and that period expired on
24 April 2002. As the Tribunal's decision records at page 2, the applicants' application on the second occasion was not lodged until 1 February 2007, with the result that it was lodged late. Consequently, the Tribunal was not in error in deciding that it had received the application outside the mandatory time limit and was not a valid application and in that respect its decision on that issue is not affected by jurisdictional error. I make reference in that respect to the decision of the Full Court of the Federal Court in VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570.
The other issue is whether the Tribunal, in any event, had any jurisdiction to consider the application. The Tribunal concluded, rightly in my view, that it could not reconsider the delegate's decision, having already reviewed it. An argument of changed circumstances does not change the fact that the Tribunal was functus officio. In that regard, it is worth noting the decision of Goldberg J in Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 and the decision of Merkel J in Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18. I have also been taken to the decision of Moore J in SZASP v Minister for Immigration & Citizenship [2007] FCA 771 where his Honour said at [4]:
It is necessary to first say something about the applicant's attempt to seek a second review of the delegate's decision in the Tribunal. The Tribunal's conclusion that it no longer had jurisdiction to review the delegate's decision, having already discharged its functions under the Act to review the delegate's decision, was correct … The delegate was also correct in finding that changed circumstances did not provide any legal basis for undertaking a second review.
Conclusion
In the circumstances, the Tribunal's conclusion that it could not entertain a second application for review of the delegate's decision was not affected by jurisdictional error. Consequently, as no jurisdictional error on the part of the Tribunal has been demonstrated, the application will be dismissed.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 21 June 2007
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