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Nguyen v Refugee Review Tribunal

Nguyen v Refugee Review Tribunal

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Case Copied 24 April 1997 50 min read

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ADMINISTRATIVE LAW - MIGRATION - application to Refugee Review Tribunal for review lodged out of time - time for lodging application determined by notification of decision of Minister for Immigration and Ethnic Affairs (the “Minister”) - whether “notification” same as “notice” - whether “notification” requires decision to come to knowledge of recipient - whether notice should have been in Vietnamese - “notification” or “notice” is not synonymous with knowledge - whether notice only becomes effective upon translation - whether Minister estopped from asserting efficacy of notice in English - service of application for review by post - whether service should be deemed to be effected - whether regulation providing for lodging application ultra vires - whether “lodging” same as “giving”

DISCRIMINATION - RACIAL DISCRIMINATION - equality before the law - notice in English - whether appellant less able to enjoy right to be notified - whether purpose or effect of notification provision amounts to racial discrimination - whether right to receive notification in applicant’s language - use of English reasonable and appropriate

Acts Interpretation Act 1901, s 29, s 46
Migration Act 1958, s 166BA
Migration (1993) Regulations, reg. 2A.11, 2A.12
Migration (Review) (1993) Regulations, reg. 43E
Racial Discrimination Act 1975, s 10

Gerhardy v Brown (1985) 159 CLR 70, applied
Mabo v The State of Queensland (1988) 83 ALR 14, cited
Melkman v Federal Commissioner of Taxation (1988) 81 ALR 361, cited
Australian Medical Council v Wilson (1996) 137 ALR 653, cited
Ebber v Human Rights and Equal Opportunities Commission (1995) 129 ALR 455, cited
Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251, cited
Griggs v Duke Power Co. (1971) 401 US 424, cited
Waters v Public Transport Corporation (1991) 173 CLR 349, cited
R v Wilson; Ex parte Kisch (1934) 52 CLR 234, distinguished
Goodyear Tyre and Rubber Co (Great Britain) Ltd v Lancashire Batteries Ltd [1958] 1 WLR 857, cited
Cresta Holdings Ltd v Karlin [1959] 1 WLR 1055, cited
Forward v West Sussex County Council [1995] 1 WLR 1469, distinguished
Legione v Hateley (1983) 152 CLR 406, applied
National Mutual Life Association v Windsor (1991) 100 ALR 585, cited

CUONG VAN NGUYEN - v - MR M W GERKENS CONSTITUTING THE REFUGEE REVIEW TRIBUNAL
No VG 660 of 1996
Tamberlin, Sundberg and Marshall JJ
Melbourne
24 April 1997

IN THE FULL COURT OF             )
THE FEDERAL COURT OF AUSTRALIA    )    No. VG 660 of 1996
VICTORIAN DISTRICT REGISTRY      )
GENERAL DIVISION                 )

ON APPEAL FROM A DECISION OF A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: CUONG VAN NGUYEN
Appellant

AND:                   M W GERKENS,
  REFUGEE REVIEW TRIBUNAL
  Respondent

CORAM:        TAMBERLIN, SUNDBERG & MARSHALL JJ
PLACE:        MELBOURNE
DATED:        24 APRIL 1997

MINUTE OF ORDERS

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1997] FCA 293
Decision Date: 24 APRIL 1997

CaseChat Overview and Summary

In the matter of an appeal against the decision of a single judge of the Federal Court of Australia, the Full Court of the Federal Court dismissed an appeal by Cuong Van Nguyen against a decision of the Refugee Review Tribunal that it did not have the power to entertain an application for review of a decision of the Minister for Immigration and Ethnic Affairs. The appellant, a Vietnamese national, had applied for refugee status and a domestic protection temporary entry permit. After his applications were refused, he was given notice in English of his right to apply for review. The appellant consulted a solicitor, who advised him of his right to apply for review and who prepared an application for review which was posted to the Refugee Review Tribunal. The Tribunal found that the application was not received until 18 October 1993, and that it was outside the 28-day time limit for making such an application. The appellant argued that the notice given to him in English was not effective notice because it was not translated into Vietnamese, and that the requirement that he lodge his application for review within 28 days of receiving notice of the Minister's decision was discriminatory and therefore invalid under the Racial Discrimination Act 1975. The Full Court held that the notice given to the appellant was effective notice for the purposes of the Migration Act 1958 and the regulations made thereunder. It also held that the Racial Discrimination Act had no application to the circumstances of the case. The Full Court further held that the requirement that the appellant lodge his application for review within 28 days of receiving notice of the Minister's decision was mandatory and not directory only, and that there was no power to extend the time. The appeal was dismissed with costs.

Orders