SZBWD v MIMA & Anor

[2006] HCATrans 558

[2006] HCATrans 558

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S100 of 2006

B e t w e e n -

SZBWD

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 OCTOBER 2006, AT 9.31 AM

Copyright in the High Court of Australia

GUMMOW J:   The applicant is a citizen of India.  He was refused a protection visa by a delegate of the first respondent on 6 June 2003.  On that date, a notice of the decision was sent to the last residential address supplied by the applicant, 14 Little Albion Street, Surry Hills.  The letter was returned unclaimed.

Section 494B(4) of the Migration Act 1958 (Cth) (“the Act”) allows notice to be given of a decision by prepaid post. The Refugee Review Tribunal (“the Tribunal”) ruled that s 494B(4) had been complied with. The Act and its Regulations prescribe a 28 day period for instigating a review of a delegate’s decision. The Tribunal ruled that, because s 494B(4) had been complied with, this period expired on 16 July 2003, even though the letter was unclaimed. The applicant sought review on 18 July 2003.

Before the Tribunal, the applicant claimed that a migration agent who had helped him to lodge the protection visa application had mistakenly submitted his address to the department as 14 Little Albion Street instead of 14A Little Albion Street.  Further, the applicant alleged mistakes by Australia Post as to the addressee on the letter containing the decision.

The Tribunal held that s 494B of the Act had been complied with. Thus it had no jurisdiction to review the delegate’s decision because the application had been received two days outside the prescribed time limit and there was no provision for extension of time.

The Federal Magistrates Court ruled that there was no jurisdictional error.  Driver FM thus dismissed the application, noting that, although “[t]he inflexible application of jurisdictional time limits in this case appears harsh”, the Tribunal had no option but to apply those limits.

The Federal Court (Allsop J) dismissed an application for an extension of time in which to file and serve a notice of appeal from the decision of Driver FM.  His Honour found no error on the part of Driver FM or the Tribunal and concluded that an extension of time should be refused because an appeal would be bound to fail.

The applicant’s case before this Court discloses no error by Allsop J.  Accordingly, special leave is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish the disposition signed by Heydon J and myself.

AT 9.34 AM THE MATTER WAS CONCLUDED