Singh v Minister for Immigration and Multicultural Affairs

[1999] FCA 353

FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 353

IMMIGRATION – Alleged refugee – Application for review by Refugee Review Tribunal of decision by delegate to refuse protection visa – Application required to be made to Tribunal within 28 days of receipt of delegate’s decision – Application made one day late – Tribunal determined it had no jurisdiction to review delegate’s decision – Whether Tribunal ought to have treated delay as a technicality and reviewed delegate’s decision on the merits.

Migration Act 1958, ss 411, 412 and 420
Migration Regulations, regs 4.31(2)(b) and 5.03(1)(a)

AMANDEEP SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG1446 of 1998

WILCOX J
26 MARCH 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG1446 OF 1998

BETWEEN:	AMANDEEP SINGH Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	WILCOX
DATE OF ORDER:	26 MARCH 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.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	NG1446 OF 1998

BETWEEN:	AMANDEEP SINGH Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX
DATE:	26 MARCH 1999
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

1. WILCOX J:  This is an application for review of a decision of the Refugee Review Tribunal in which the Tribunal held it had no jurisdiction to review the decision of the delegate of the respondent, the Minister for Immigration and Multicultural Affairs, to refuse a protection visa.

2. The reason for the Tribunal taking that view was that the applicant failed to make his application for review by the Tribunal within the requisite period of 28 days.  At the hearing before me, the representative of the applicant, Mr K Ramrakha, who is both a solicitor and a migration agent, conceded the application was not lodged within the requisite period. 

3. It seems the decision of the delegate refusing the applicant’s application for protection visa was dated 9 March 1998 and posted that day.  Regulation 5.03(1)(a) of the Migration Regulations deems a document sent from a place in Australia to an address in Australia to have been received seven days after the date of the document. This means that, for the purposes of applying the Act and Regulations, the decision of the delegate is taken to have been received on Monday, 16 March. Section 412(1)(b) of the Migration Act 1958 provides: "An application for review of an RRT-reviewable decision must … be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision". In fact, a period of 28 days has been prescribed: see reg 4.31(2)(b).

4. The decision of the delegate was an RRT reviewable decision see s 411(1)(c). It follows that the effect of s 412(1)(b) is to require any application for review of a refusal of a protection visa to be given to the Tribunal within 28 days of the deemed receipt.

5. In the present case, the 28 days expired on Monday, 13 April.  That happened to be a public holiday (Easter Monday).  Consequently, the period did not expire until the close of business on the following day, Tuesday, 14 April.  Unhappily for the applicant, he did not lodge his application for review by the Tribunal until the following day, Wednesday, 15 April. 

6. It seems clear, and it is conceded by Mr Ramrakha, that the application for review was out of time by one day. There was a failure to comply with s 412(1)(b) of the Act. The Act confers no power on the Tribunal or any other person to extend the stipulated time. It follows that the applicant failed to enliven the jurisdiction of the Refugee Review Tribunal.

7. Mr Ramrakha draws attention to s 420 of the Act. That section reads:

   “420.(1)The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

   (2)The Tribunal, in reviewing a decision:

   (a)is not bound by technicalities, legal forms or rules of evidence; and

   (b)must act according to substantial justice and the merits of the case.”

8. Mr Ramrakha says the fact that the application for review was lodged one day late is a technicality; accordingly, it is not binding on the Tribunal and the Tribunal ought to act in accordance with substantial justice and the merits of the case by proceeding to a review on the merits. This submission must be rejected. Section 420 is concerned with the manner of exercise of the Tribunal's powers. It is not concerned with the circumstances in which the Tribunal has jurisdiction. If an applicant fails to enliven the Tribunal's jurisdiction, by failing to lodge an application in the approved form, within the prescribed time or accompanied by the prescribed fee, the Tribunal has no power to carry out a review. Consequently, the provisions dealing with the manner of exercise of its review powers do not arise.

9. I have some sympathy for the applicant.  It seems hard that he should be deprived of the opportunity of a review by the Tribunal of the delegate's decision because of a delay of only one day.  However, Parliament has set time limits, no doubt for good reasons, and has made no provision for those time limits to be extended.  Applicants who wish to take advantage of the statutory right of review must comply strictly with the statute’s requirements concerning invocation of that right.  The application must be dismissed.

   [There was short discussion regarding costs.]

10. The orders of the Court will be that application is dismissed and the applicant pay the respondent's costs of the application.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             26 March 1999

Representative for the Applicant:	K Ramrakha
Counsel for the Respondent:	R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 March 1999