Slavinskas v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1515

FEDERAL COURT OF AUSTRALIA

Slavinskas v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1515

RAMUNAS SLAVINSKAS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N1990 of 2003

ALLSOP J
15 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1990 of 2003

BETWEEN:	RAMUNAS SLAVINSKAS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	15 DECEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time 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	N 1990 of 2003

BETWEEN:	RAMUNAS SLAVINSKAS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	15 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an application for an extension of time to file and serve a notice of appeal under O 52 r 15 in respect of orders of a Federal Magistrate made on 27 October 2003. The orders made by the Federal Magistrate were that an application, in effect for orders under s 39B of the Judiciary Act 1903 (Cth), be dismissed and the learned Magistrate ordered that the applicant pay the respondent's costs fixed at $3,500.

2. The issues before the Magistrate concerned the refusal of a business visa. The Migration Review Tribunal (the Tribunal) affirmed the decision of the delegate. Prior to doing so on 19 December 2002 the Tribunal sent to the applicant, care of his nominated lawyers, an invitation to comment on information for the purposes of, and within the meaning of, s 359A of the Migration Act 1958 (Cth).  This was sent also by way of copy to the applicant at an address in Waterloo which was the nominated residential address in his application.

3. In the application for the long stay temporary business visa the applicant had given the Waterloo address in section 1 as his residential address and had given the address of Penhall & Co Lawyers of Burwood as his correspondence address.  At no time was there ever any communication with the Tribunal that the address for correspondence or service to Penhall & Co Lawyers was to be changed.

4. There was no reply from the applicant.  This was because it would appear he had moved from Waterloo first to Chatswood, then to Rose Bay, then to Bexley where he apparently now lives.

5. Not receiving a response the Tribunal went ahead to deal with the matter. The arguments before the Federal Magistrate on behalf of the applicant were that the Tribunal was not authorised so to conclude its task because he had not received the material under s 359A. This depended in large part as to whether under s 379A(4) there had been appropriate service Section 379A(4) is in the following terms:

   (4)Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, dating the document, and then dispatching it:

   (a)     within 3 working days (in the place of dispatch) of the date of the document; and

   (b)     by prepaid post or by other prepaid means; and

   (c)     to:

   (i)the last address for service provided to the Tribunal by the recipient in connection with the review; or

   (ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review.

6. It should be noted that the last and only address for service ever provided to the Tribunal was the address of the solicitors.  There was some evidence referred to in the learned Magistrate's reasons in [5] and [8] which would indicate that the Tribunal for the purposes of another application had been told orally that there was a change of residential address from Chatswood to Rose Bay.

7. However, the Federal Magistrate found that this was not the provision of a residential address in connection with the review in question, but with another review. The Magistrate could also have found though he did not, that the last and only address for service was the address of the solicitors. The Magistrate was of the view that the terms of s 379A(4) had been satisfied and therefore, section 359A had been complied with and since there had been no response, s 379C(2) applied and so, s 360(2)(c) applied entitling the Tribunal to complete the hearing.

8. There was also a further difficulty with the applicant's position, that is that the Tribunal was asking him about an issue which was fundamental to his application success.  It would appear that his sponsoring employer was no longer proposing or continuing to sponsor the applicant.  This would have meant that the criterion referred to in cl 457.223(4) and (5)(a) could not be satisfied.

9. That however, was not the basis of the Magistrate's decision.  The learned Magistrate's decision concerned the satisfaction of the service requirement in, and in connection with, s 379A, 359A and consequentially 359C and 360.

10. I see no error in the approach of the Magistrate at all.  I am not hearing an appeal from the Magistrate, I am hearing an application for the extension of time.  The application was filed out of time though only by a period in the order of a week.  There is an affidavit on the file by the applicant whose only explanation was that he thought that the time ran from the time of receiving the letter of the Magistrate not from the date of a hearing.

11. On 1 December 2003 my chambers sent a letter to the solicitors for the respondent and to the applicant at the address for service on the application for an extension of time.  There was no appearance today. I had the matter called three times outside.  Also the letter of 1 December informed the parties that the applicant should file and service submissions and any further evidence which he seeks to rely upon on or before last Wednesday.  No such further submissions or evidence were served or filed. 

12. I see no prospects of success of the appeal.  There has been an inadequate explanation of the delay and though the delay was only brief, I see no reason to put the respondent to any further expense in this matter, given what is apparently an appeal without merit.  The only ground of appeal in the draft notice of appeal is that the Federal Magistrate's decision failed to take into account relevant material and facts, that the decision was made with no consideration of another case which was in the MRT.

13. The appeal from the learned Federal Magistrate is not one of judicial review in this case.  If the Federal Magistrate was wrong as to the factual conclusions that he drew about the service provisions of s 379A having been satisfied, that would be sufficient to warrant orders being made on appeal.  However, as I have said, I see no reason to doubt the factual conclusions drawn by the learned Federal Magistrate.  In these circumstances, the application for an extension of time is dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            18 December 2003

Counsel for the Applicant:	No appearance by or on behalf of the applicant
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	15 December 2003
Date of Judgment:	15 December 2003