SZEWV v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEWV v MINISTER FOR IMMIGRATION [2005] FMCA 1525

MIGRATION – Review of Refugee Review Tribunal decision – Tribunal did not have jurisdiction to review the decision of the delegate – review application made outside mandatory time limits – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.66(2), 91X, 412, 483A
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994 (Cth), reg.4.31

Yo Han Chung v University of Sydney & Ors [2002] FCA 186

Applicant: SZEWV

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 2134 of 2004

Delivered on: 28 October 2005

Delivered at: Sydney

Hearing date: 10 October 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of an interpreter.

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2134 of 2004

SZEWV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 12 July 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on

   
   

   30 June 2004 that the Tribunal did not have jurisdiction to review the decision of the of the delegate of the respondent (“the delegate”) made on 6 February 2004 declining to grant the applicant a protection (Class XA) visa.  The applicant seeks relief against the decision of the Tribunal.

Background

1. The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZEWV”.

2. The applicant, who claims to be a citizen of India, arrived in Australia on 6 November 2003 on a Short Stay (Temporary) Business visa.  On

   
   

   4 December 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.3-43) (“CB”). On 6 February 2004 the delegate refused to grant a protection visa. On that date, the Department advised the applicant and his migration agent that his application for a protection visa was refused as he did not meet the criteria to satisfy the requirement of that visa.

   
   

   A copy of the delegate’s decision setting out the reasons for the refusal was attached to that letter (CB pp.46-52).  The letter then set out the applicant’s status in Australia as a consequence of the delegate’s decision.  The letter indicated that the applicant had been granted a bridging visa which allowed him to stay in Australia lawfully for a period of 28 calendar days from the date on which he received the delegate’s letter and decision.

3. The…