Quevedo-Navarro, Fredy Jose v Minister for Immigration and Multicultural Affairs

[1998] FCA 978

FEDERAL COURT OF AUSTRALIA

MIGRATION – application for review lodged out of time – objection to competency well founded – application dismissed – no point of principle.

FREDY JOSE QUEVEDO-NAVARRO v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

NG 595 of 1998

MOORE J
13 AUGUST 1998
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 595 of 1998

BETWEEN:	FREDY JOSE QUEVEDO-NAVARRO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		MOORE J
DATE OF ORDER:		13 AUGUST 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

1. The applicant 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	NG 595 of 1998

BETWEEN	FREDY JOSE QUEVEDO-NAVARRO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	13 AUGUST 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Delivered ex tempore)

On 18 June 1998 an application was filed in this Court seeking an order of review of certain decisions. It is not entirely clear from the application itself what decisions are sought to be reviewed. However on a fair reading of the application the only decisions identified that this Court might conceivably have jurisdiction to review, are a decision of the Refugee Review Tribunal (“the Tribunal”) of 24 March 1998, a decision of the Minister for Immigration and Multicultural Affairs of 9 June 1998 (“the Minister’s decision”) deciding not to consider to exercise a power conferred on the Minister under s 417 of the Migration Act 1958 (“the Act”) and a decision of a delegate of the Minister of 12 May 1997 refusing to grant the applicant a protection visa. In the course of submissions made on the applicant’s behalf today by Mr Ramon Reyes, a further decision was identified, namely, the decision of the Immigration Review Tribunal of 5 June 1998. However, notwithstanding as generous an approach that might be brought to bear in construing the application, that decision does not, in my view, arise as a decision to which the application relates.

Submissions have been made by the Minister that this Court has no jurisdiction to review the Minister’s decision, the decision of the Tribunal and the decision of the delegate of the Minister.

It is necessary to refer to one factual issue raised by Mr Markus, appearing for the Minister, which was not put in issue.  The decision of the Tribunal was notified to the applicant by a letter dated 26 March 1998 sent on that day.  At least arguably regulation 5.03 of the Migration Regulations would operate to deem the applicant as having been notified of that decision on 3 April 1998: see Susiatin v Minister for Immigration and Multicultural Affairs (unreported, Beaumont J, 5 June 1998) cf Kamkar v Minister for Immigration and Multicultural Affairs (1996) 71 FCR 424 and Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386. In putting it that way I am not implying that the regulation would not operate with that effect. Rather, it is simply unnecessary to deal with that question. I say that because there is, in evidence, a letter dated 29 April 1998 from solicitors retained by the applicant to make representations to the Minister which refers to a letter of the same date sent to the Minister. The letter sent to the Minister canvasses in detail the decision of the Tribunal. The inescapable inference, in my opinion, is that at some stage before 29 April 1998 the applicant, as a matter of fact, was sent and received a copy of the decision of the Tribunal and was thus notified of the decision.

Section 478 of the Act makes it plain that an application seeking judicial review of a decision of the Tribunal has to be made within 28 days of the applicant being notified of the decision. Accepting for present purposes that that date is 29 April 1998, the application filed on 1 June 1998 was filed outside that period. It follows that the objection to competency to the application in so far as it seeks judicial review of the decision of the Tribunal is well founded.

In so far as the application seeks judicial review of the decision of the delegate made on 12 May 1997, it is a decision which is not amenable to statutory judicial review, having regard to ss 475(2) and 485(1) of the Act. Thus, the objection to competency to the application in so far as it seeks judicial review of that decision is also well founded. In so far as the application might be viewed as an application for judicial review of the Minister’s decision it likewise is a decision that is not amenable to statutory judicial review.

In these circumstances the Act dictates, in my opinion, that an order should be made dismissing the application and I so order. I also order that the applicant pay the respondent's costs.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of His Honour Justice Moore

Associate:

Dated:             13 August 1998

Applicant in person
Solicitor for the Respondent:	Andras Markus Australian Government Solicitor
Date of Hearing:	13 August 1998
Date of Judgment:	13 August 1998