SILIA v Minister for Immigration
[2005] FMCA 1723
•21 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SILIA v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1723 |
| MIGRATION – Review of Migration Review Tribunal decision – MRT finding it lacked jurisdiction as review application filed late – fact of late application indisputable – summary dismissal of judicial review application as disclosing no reasonable cause of action. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.347, 494B, 494C Migration Litigation Reform Act 205 (Cth) |
| Applicant A135/2002 v Minister for Immigration [2003] FCA 708 Applicant A163/2002 v Minister for Immigration & Ors [2003] FCA 677 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 125 Kirk v Minister for Immigration (1998) 87 FCR 99 Lee v Minister for Immigration [2002] FMCA 279 Salemi v Minister for Immigration (1976) 137 CLR 388 Santos v Minister for Immigration (Tamberlin J, 8 May 1997, unreported) Sea Culture International Pty Limited v Scoles (1991) 32 FCR 275 Seci Dawai and Anor v Minister for Immigration (Moore J, 3 February 1997, unreported) Singh v Minister for Immigration [1999] FCA 353 SZCTH v Minister for Immigration (No 2) [2004] FMCA 284 Tabet v Minister for Immigration [1997] FCA 547 Taylor v Minister for Immigration [2005] FMCA 281 Walton v Lampard (1993) 177 CLR 378 Xie v Immigration Dept [1999] FCA 365 |
| Applicant: | KAIO SILIA |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG779 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 21 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 21 November 2005 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Mr J Bird Phillips Fox |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG779 of 2005
| KAIO SILIA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a motion by the Minister seeking the summary dismissal of a judicial review application. The notice of the motion was given on 20 May 2005. The judicial review application was filed on 31 March 2005. I permitted the applicant to amend her judicial review application on 6 September 2005. The motion for summary dismissal is thereby directed to the judicial review application as amended.
The Minister's motion came before me for hearing on 29 August 2005. At that time I adjourned the hearing of it for several reasons. The first was that it appeared from the book of relevant documents filed on 27 April 2005 that the applicant was only one day late in filing her review application with the Migration Review Tribunal (“the MRT”). Order 3 made by me on 29 August 2005 was directed at giving the applicant the opportunity to produce further evidence bearing on the issue of fact of whether the review application was filed out of time. The second reason for the adjournment was that I wanted to give the applicant the opportunity to amend her application to challenge the decision of the Minister's delegate.
At the time I made the order and at the time of the hearing today the Court has jurisdiction to review primary decisions that are not privative clause decisions. That jurisdiction will be removed on 1 December 2005 on the commencement of the Migration Litigation Reform Act 2005 (Cth). The amended application filed on 6 September 2005 does not challenge the decision of the delegate. I confirmed with the applicant this morning that she did not want to challenge that decision.
The applicant has not filed any further evidence relating to the question of whether her MRT application was out of time. She asserts in her amended judicial review application that it was not out of time and that the MRT was mistaken. The only evidence before me upon which that question can be determined is the court book. That evidence and the result of the application of the legislation is clear. I make the following findings derived from paragraphs 2-8 of the Minister's written submissions:
a)The applicant applied for a subclass 835 visa on 8 October 2004. This application was refused by a delegate of the first respondent on 19 October 2004.
b)The applicant was notified of the decision to refuse her application for a visa by letter dated 19 October 2004 (court book, pages 110-116).
c)Section 494C(4) of the Migration Act 1958 (Cth) ("the Migration Act") provides that the applicant is taken to have been notified of the decision 7 working days after the date of the document (provided that it was sent to the last address for service provided by the applicant within three days of the date of the letter – see s.494B of the Act).
d)The letter was sent by registered post to the address for service provided by the applicant. A handwritten annotation states that a leaflet providing address details about where an application for review to the MRT could be lodged was enclosed within the letter (court book, page 112).
e)The letter was postmarked 21 October 2004 (court book, page 128) (ie within three working days of the date of the letter). The applicant is therefore taken to have been notified of the decision on 28 October 2004.
f)Paragraph 347(1)(b) of the Act requires that an application for review is given to the MRT within the period of time prescribed by Regulation 4.10. The prescribed period for applying for review was 21 calendar days from the date of notification of the Department's decision.
g)The last day to lodge an application for review was 18 November 2004. The applicant did not file an application for review until 19 November 2004.
I also agree with Mr Bird, for the Minister, that the power of summary dismissal should be exercised sparingly. I agree with and adopt for the purposes of this judgment paragraph 9 of the Minister's written submissions:
The respondent accepts, as a matter of principle, that a summary order which prevents a party from pursuing a claim according to the ordinary course of procedure should be made only in a very clear case (see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at [91], Salemi v Minister for Immigration (1976) 137 CLR 388; Walton v Lampard (1993) 177 CLR 378. It is "an exceptional power which ought to be sparingly exercised and only in exceptional circumstances": Sea Culture International Pty Limited v Scoles (1991) 32 FCR 275 at 279.
Unfortunately for the applicant, in this case the question of whether the MRT had jurisdiction is beyond argument. She was one day late in making her review application to the MRT. Neither the MRT nor this Court can enlarge the period within which a review application can be made. That is a harsh result which both the High Court and this Court have criticised previously[1]. However, the Court must apply the law as it stands, not the law as the Court might wish it to be. I agree with and adopt for the purposes of this judgment paragraphs 10-12 of the Minister's written submissions:
The power to summarily dismiss an application on the basis that no reasonable cause of action is disclosed is appropriate where it is made to appear that the claim is ‘so clearly untenable that it cannot possibly succeed’ (see General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 125, Webster v Lampard (1993) 177 CLR 598, Lee v Minister for Immigration [2002] FMCA 279, Applicant A135/2002 v Minister for Immigration [2003] FCA 708, Applicant A163/2002 v Minister for Immigration& Ors [2003] FCA 677 and Xie v Immigration Dept [1999] FCA 365).
Neither the MRT nor this Court can extend the time by which an application for review may be made to the MRT. It is well settled that there is no discretion to extend time, even though such a result may appear to be harsh or unfair: see Taylor vMinister for Immigration [2005] FMCA 281 per Hartnett FM at [15]; Singh vMinister for Immigration [1999] FCA 353 per Wilcox J at [8] –[9]; Kirk v Minister for Immigration (1998) 87 FCR 99; Tabet vMinister for Immigration [1997] FCA 547; Seci Dawai and Anor v Minister for Immigration (Moore J, 3 February 1997, unreported); Santos v Minister for Immigration (Tamberlin J, 8 May 1997, unreported).
The legislation mandates that the MRT could have made no other decision than declare the application to be ineligible for consideration. It is therefore appropriate that this matter be summarily dismissed: see Tabet vMinister for Immigration [1997] FCA 547 where Mansfield J held:
Accordingly, although it would be appropriate to strain to adopt an interpretation of the relevant provisions which avoids the sort of hardship which the present application demonstrates, I do not think there is room for doubt. Both the clear words of the relevant provisions, and other decisions, lead me to the view that this is a proper matter to exercise the power available under O20 r 2 of the rules (provisions which mirror the summary dismissal provisions in Rule 13.10 of the Federal Magistrates Court Rules 2001(Cth)).
[1] see, for example SZCTH v Minister for Immigration (No 2) [2004] FMCA 284 at [26]-[27]
I find that the MRT was clearly correct in its finding that it lacked jurisdiction to deal with the purported review application made to it. The judicial review application challenging that decision is doomed and I dismiss it summarily, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth) .
The application having been dismissed summarily, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $3,500. I am satisfied that that is a reasonable sum when assessed on a party/party basis. That takes into account that in addition to the usual steps required by the Minister, the Minister's motion has been heard over two days. There has also been an amended judicial review application. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the judicial review application, which I fix in the sum of $3,500.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 28 November 2005
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