SZEWV v MIMIA & Anor

[2006] HCATrans 562

[2006] HCATrans 562

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S120 of 2006

B e t w e e n -

SZEWV

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS 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 9.39 AM

Copyright in the High Court of Australia

GUMMOW J:   The applicant is an Indian citizen. On 6 February 2004 a delegate of the first respondent refused his application for a protection visa. A letter enclosing a copy of the decision was sent by registered mail to the applicant and his authorised recipient. By reason of ss 494B(4), 494C(4) and 494D(1) and (2) of the Migration Act 1958 (Cth), the letter was deemed to have been received seven working days later, on 17 February 2004. Section 412(1)(b) and reg 2.16 required that any application for review to the Refugee Review Tribunal had to be filed within 28 days of 17 February 2005, namely 16 March 2004. The applicant’s application to the Tribunal for review was not received until 15 April 2004. There is no power to extend time. The Tribunal concluded that it had no jurisdiction to review the delegate’s decision.

The Federal Magistrates Court (Lloyd-Jones FM) and the Federal Court of Australia (Jacobson J) agreed.

The applicant contends that the failure to comply with the relevant time limit was the fault of his migration agent.  If that is so, it is regrettable.  But it does not reveal error in the courts below.

The applicant’s application for special leave to appeal to this Court was filed late and an extension of time is required.  That should be refused on the ground that, even if it were granted, it is inevitable that the application would be dismissed.

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 9.41 AM THE MATTER WAS CONCLUDED