SZGMS v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 558

FEDERAL COURT OF AUSTRALIA

SZGMS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 558

Migration Act 1958 (Cth)

SZGMS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 2513 OF 2005

TAMBERLIN J
SYDNEY
18 APRIL 2006

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2513 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZGMS APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	18 APRIL 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal is dismissed with costs.

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 2513 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZGMS APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	18 APRIL 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the decision of Federal Magistrate Smith made on 29 November 2005.  The appellant sought judicial review of a decision of the Refugee Review Tribunal (“RRT”) made on 30 June 2004 that affirmed a decision of a delegate of the Minister made on 5 December 2003 refusing to grant a protection visa.  The appellant lodged an application for a protection visa on 3 December 2003 and this was refused by the Minister’s delegate on 5 December 2003. 

2. The appellant was notified at his current address by a letter which complied with the requirements of the Migration Act 1958 (Cth) and was not returned to the department. On 14 January 2004, the RRT received an application for review lodged by the appellant by facsimile. The RRT wrote to the appellant on 15 January 2004 acknowledging receipt of the application, and again on 18 February 2004 seeking the appellant's comments on its view that it had no power to consider the application, as it had reached the RRT too late. No response to these letters was received by the RRT.

3. On 30 June 2004, the RRT wrote to the appellant notifying him that it did not have the jurisdiction to review the decision because the application was lodged too late to be considered: see s 412 of the Migration Act 1958 (Cth). On 22 August 2005, the appellant filed an application in the Federal Magistrates Court and, on 29 November 2005, Federal Magistrate Smith dismissed the application. On 16 December 2005, the appellant lodged the present proceeding.

4. The RRT’s decision stated that it was satisfied that the contents of the delegate's decision notice complied with the requirements of the Migration Act 1958 (Cth). The RRT found that the notice of the decision dated 5 December 2003 was sent by registered mail to the appellant within three working days at the postal address provided to the Minister. The appellant was taken to have received the notice on 16 December 2003. Accordingly, the 28 day period within which the review application had to be lodged ended on 13 January 2003. The application was not received by the Tribunal until 14 January 2004, after this period had expired.

5. In this matter, neither the Federal Court, the Federal Magistrates Court, nor the RRT has the power to extend this period of time.  Although the application was merely one day out of time, nevertheless, this is fatal to the application.

6. The grounds pleaded in the Notice of Appeal did not identify any particular error in the judgment of Federal Magistrate Smith, and the Minister submits that there is no error in the judgment.  When the matter came on for hearing before me today, it was pointed out and verified by the appellant that he did not receive certain correspondence after 23 February 2006.  On that date, he received a letter from the solicitor for the Minister informing him that the matter was listed for final hearing on 18 April 2006 at 9.30 am and that if he did not attend the hearing, an application would be made to have the case dismissed with costs.

7. Three other letters were sent, but the appellant said that he did not receive these.  These are letters dated 1 March, 30 March and 7 April 2006.  These letters enclose an affidavit and reiterate the hearing date.  The letter of 30 March 2006 also enclosed the bundle of documents, known as the Appeal Book, filed on 30 March 2006.  Finally, the letter of 7 April 2006 enclosed the respondent's outline of submissions.  The only explanation that the appellant gave for not having received these last three letters was because he did not check his mail box as he did not think he would receive any further correspondence.

8. In my view, this explanation is not satisfactory and in view of the mandatory nature of the requirements of s 412, I do not think there is any prospect of success of any appeal in this matter. Accordingly, as I can identify no error of law or principle in the decision of the RRT or in the reasoning of the learned Federal Magistrate, I order that the appeal in this matter be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             14 June 2006

The appellant appeared in person with the assistance of an interpreter
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	18 April 2006
Date of Judgment:	18 April 2006