SZEAN v Minister for Immigration - [2004] FMCA 1071

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEAN v MINISTER FOR IMMIGRATION

[2004] FMCA 1071

MIGRATION – RRT found no jurisdiction – appeal out of time – no basis for application to Court disclosed – application summarily dismissed.

Federal Court Rules, O.54B r.5
Federal Magistrates Court Rules 2001, r.1.05(3)(b), 13.10(a), Sch.3 Pt.2
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.66, 412(1)(b), 483A, 494B, 494C, 494D
Migration Regulations 1994 (Cth), reg.2.16

Applicant:

SZEAN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2286 of 2004

Judgment of:

Smith FM

Hearing date:

13 December 2004

Last Submission:

13 December 2004

Delivered at:

Sydney

Delivered on:

13 December 2004

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms A Alex

Solicitors for the Respondent:

Phillips Fox

ORDERS

Application filed on 21 July 2004 dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules 2001.
Applicant to pay the respondent’s costs in the sum of $2500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2286 of 2004

SZEAN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant filed this application on 21 July 2004 under s.483A of the Migration Act 1958 (Cth) (“the Act”) and s.39B of the Judiciary Act 1903 (Cth), seeking judicial review of a decision by the Refugee Review Tribunal (“the Tribunal”) dated 30 June 2004. I have before me today an application by the respondent for its summary dismissal.
The Tribunal decided that it had no power to review a delegate’s decision refusing the applicant a protection visa which is dated 13 January 2004. The delegate’s decision had been posted to the applicant at his stated residential address and also to his migration agent on 13 January 2004. He lodged his application for review by the Tribunal on 6 April 2004.
The Tribunal considered that it did not have jurisdiction to conduct a review on the ground that the application to the Tribunal had not been filed in accordance with the mandatory time for filing under s.412(1)(b) of the Act. That section provides:
(1)An application for review of an RRT-reviewable decision must:
(a)be made in the approved form; and
(b)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 its decision, the Tribunal considered the provisions of the Act in relation to service of documents by the Minister on an applicant for a visa. It referred to ss.66, 494B, 494C and 494D and reg.2.16 of the Migration Regulations 1994 (Cth), and noted that the Act authorises the dispatch of a document such as the present delegate’s reasons by prepaid post. When that method is used, and if the letter was sent within three days of the date of the letter, the addressee is taken to have received the document seven working days after the date of the document, and the time for appealing from that decision then runs from that date.
These provisions apply whether in fact an applicant has received notice of the letter or not. They are provisions that have been inserted to prevent any dispute about whether an applicant received documents and appealed within the prescribed time. Before the provisions can apply, formalities for such service must be observed. Section 494B(4)(c) requires the letter to be posted to:
(i)the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii)the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.
Section 494D(1) provides that, if an applicant gives written notice of the name and address of another person authorised to receive documents on his behalf, then “the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person”. Section 494D(2) provides that if the Minister gives a document to the authorised recipient, “the Minister is taken to have given the document to the first person”.
In the present case, the Tribunal noted that in his protection visa application the applicant had given an authorisation of his migration agent to act and receive communications. The person was named and his address was specified. I am satisfied that there was evidence both before the Tribunal and now before me allowing the Tribunal to conclude that the delegate’s decision was posted to that person on 13 January 2004. On the same day it was also posted to the applicant at his own residential address shown in the application form at several places.
The Migration Act, therefore, deemed both the applicant and his authorised person to have received notice of the letter containing the delegate’s decision on 22 January 2004, and the mandatory time for bringing an appeal to the Tribunal expired on 19 February 2004.
However, the application for review was not received by the Tribunal until the evening of 5 April 2004, when a facsimile was received in the office of the Tribunal which was stamped as lodged on 6 April 2004. It was, therefore, many weeks out of time.
The application in this Court sets out the following as the “grounds of the application”:
1.I am a citizen of India holder of Indian passport No: XXX. I arrived in Australia on 4th Sep 03 was seeking a Protection in Australia.
2.I have lodged a Protection visa Application with DIMIA on 2nd Oct 03. The DIMIA refused my application on 13th Jan 04.
3.I have lodged for a review of my protection visa application with RRT but the RRT made a decision set aside. Copy of RRT decision attached.
This identifies no ground for an order by way of judicial review.
The applicant has been unable before me today to present an argument that the Tribunal made a wrong decision in finding that it did not have jurisdiction. He claimed to have an explanation for the late lodgement which suggested that this was the fault of his agent. He said that he had given the agent money for bringing an appeal to the Tribunal before the due date, and had been told by the agent that it had been submitted within the due time. However, I know of no principle of law that would allow evidence to this effect to vitiate the decision made by the Tribunal.
In these circumstances, I consider that the application brought in this Court is plainly hopeless, and that it is appropriate to dismiss it on the Minister’s interlocutory application which is before me today. Under r.13.10(a) of the Federal Magistrates Court Rules 2001 read with O.54B r.5 of the Federal Court Rules (see r.1.05(3)(b) and Pt.2 of Sch.3 of the Federal Magistrates Court Rules 2001), the Court has power to dismiss the proceedings summarily if “no basis for the application is disclosed”.
Plainly, no reasonable basis has been disclosed in the application filed in this Court, and examining the decision under challenge in the light of uncontested evidence there is no prospect of a proper ground being put forward through an amendment of the application.
In these circumstances, I consider it appropriate for me to exercise my discretion to dismiss under Rule 13.10(a) and I do so.
RECORDED : NOT TRANSCRIBED
I order the applicant to pay the respondent’s costs in the sum of $2500.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 7 February 2005