SZIHN v Minister for Immigration and Citizenship

[2008] FCA 747

FEDERAL COURT OF AUSTRALIA

SZIHN v Minister for Immigration and Citizenship [2008] FCA 747

Migration Act 1958 (Cth) s 412

SZIHN and SZIHO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 289 OF 2008

TAMBERLIN J
7 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 289 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIHN
First Appellant

SZIHO
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	7 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be 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 289 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIHN
First Appellant

SZIHO
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE:	7 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate of 15 February 2008 which dismissed the appellants’ application for review of a decision of the Refugee Review Tribunal (“the Tribunal”), which in turn had affirmed the decision of a delegate of the first respondent (“the Minister”). 

2. The essential question involved is whether the Tribunal had jurisdiction to entertain an appeal from a decision of the delegate. It is common ground in this matter that the time limit for lodging the appeal with the Tribunal, which is stipulated by s 412 of the Migration Act 1958 (Cth) (“the Act”), was not complied with. I have considered the reasons for decision given by the Federal Magistrate dealing with this question, in which her Honour considers the arguments advanced and sets out the relevant provisions of the Act and comes to the conclusion that the Tribunal did not have jurisdiction to entertain the application. Her Honour concluded that the Minister had complied with the legislative scheme in giving notification of the delegate’s decision, and the applicants failed to comply within the prescribed timeframe.

3. In those circumstances, it is not necessary to enter into any consideration of the merits of the matter.  For the reasons given by the Federal Magistrate in this matter, I am satisfied that the appeal in the present case must be dismissed.

4. Accordingly, the appeal is dismissed, with costs, as taxed or agreed.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:       22 May 2008

Counsel for the Appellants:	The appellants appeared in person
Counsel for the Respondents:	Mr D Godwin
Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	7 May 2008
Date of Judgment:	7 May 2008