SZEAN v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 526

FEDERAL COURT OF AUSTRALIA

SZEAN v Minister for Immigration & Multicultural & Indigenous Affairs  [2005] FCA 526

MIGRATION – Application for leave to appeal from Federal Magistrates Court – application to Tribunal outside mandatory time limit – application dismissed.

Migration Act 1958 (Cth)

SZEAN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 128 OF 2005

HILL J
18 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 128 OF 2005

BETWEEN:	SZEAN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL
DATE OF ORDER:	18 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal against a decision of the Federal Magistrates Court and to extend time for filing that application be dismissed.
2. The applicant pay the respondent’s costs of the application.

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	NSD 128 OF 2005

BETWEEN:	SZEAN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL
DATE:	18 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex tempore – revised)

HILL J

1. Before the Court is an application for leave to appeal against a decision of a federal magistrate given, apparently, on 13 December 2004.  The date 7 February 2005, which appears on the reasons, is presumably a date when the revised reasons were in fact prepared.  Also before the Court is an application to extend time for filing the application for leave to appeal.  This arises because the present application in this Court was only filed on 1 February 2005.  The learned magistrate had dismissed the application for judicial review before him on the ground that no basis for the application was disclosed and that the application to the Federal Magistrates Court was "plainly hopeless".

2. To understand why the application for judicial review was hopeless it is necessary to understand the chronology of this case. 

3. The applicant had applied for a protection visa. That application had been rejected by a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the Minister”). The delegate's decision was given to the applicant by a notice dated 13 January 2004. The notice was sent by registered mail to an authorised recipient on 13 January 2004. Having regard to ss 494B, 494C 494D of the Migration Regulations 1994 (Cth), the applicant was taken to have received the notice on 22 January 2004. On the same day a copy was also forwarded to the applicant at his own residential address.

4. By virtue of s 412(1)(b) of the Migration Act 1958 (Cth) (“the Act”), an application for review of a reviewable decision of the Refugee Review Tribunal (“the Tribunal”) must be given within a period ending not later than 28 days after the notification of the decision. In other words, it was necessary that the applicant give to the Tribunal notice of the application to review the Minister's decision by 19 February 2004. In fact, the applicant did not give that notice until 4 April 2004, that is to say, considerably after the expiration of the 28 day period. In the Federal Magistrates Court, the applicant sought to explain the delay by reference to what he said was the fault of a migration agent who had told him that the application had been submitted within due time.

5. The Tribunal decided that as the application for review was made outside the time limits prescribed, and as those time limits were mandatory, the Tribunal had no jurisdiction to review the decision of the delegate.

6. With respect to the applicant, the Tribunal's decision is correct.  It is to no avail for the applicant to blame his failure to comply with mandatory time limits upon a migration agent.  Perhaps he may have some claim against that agent, but that is not a relevant matter for this Court in the present proceedings. 

7. It follows that the application for judicial review of the Tribunal's decision disclosed no jurisdictional error on the part of the Tribunal. There was, as the learned magistrate found, no basis for an application under s 39B of the Judiciary Act1903 (Cth). The applicant's case was, as the learned magistrate said, plainly hopeless.

8. I appreciate the problem of an applicant who feels that he has been denied justice by not having an opportunity to present his case.  However, the problem lies in the mandatory time limits for the appeal to the Tribunal. 

9. I would, accordingly, refuse leave to appeal on the basis that such leave would likewise be futile.  There is no need for me to consider whether or not to extend the time for filing the application as that too would be futile.  Accordingly, I dismiss the application.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             29 April 2005

The applicant was self-represented
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	18 April 2005
Date of Judgment:	18 April 2005