SZIUK v Minister for Immigration
[2006] FMCA 1581
•24 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIUK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1581 |
| MIGRATION – Application to Migration Review Tribunal lodged out of time – allegation that migration agent failed to inform applicant of decision of delegate – Tribunal found no jurisdiction to accept late application – application to the court dismissed. |
| Migration Act 1958, s.412(1)(b) Migration Regulations 1994 |
| Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 305 Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550 SZEYR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 344 |
| Applicant: | SZIUK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1304 of 2006 |
| Judgment of: | Burchardt FM |
| Hearing date: | 23 October 2006 |
| Date of last submission: | 23 October 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 24 November 2006 (via video link to Sydney) |
REPRESENTATION
| The Applicant: | In person (assisted by an Urdu Interpreter) |
| Counsel for the Respondent: | Ms L. Clegg |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application filed 5 May 2006 is dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1304 of 2006
| SZIUK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this matter the Applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa under the Migration Act 1958 on 9 August 2005. On 10 October 2005 a delegate of the Minister for Immigration & Multicultural Affairs refused to grant a protection visa. The Applicant was notified of the decision by letter dated 10 October 2005 and sought review of the decision by application lodged with the Refugee Review Tribunal (“the Tribunal”) on 23 December 2005. In his review application the Applicant states relevantly:
“Migration agent, Dr Zahirul Hoq Mollah Mig Reg No. 0005214 has not informed me about DIMIA decision to me even I have provided him all my contact details and new address due to which I have missed the due date to lodge this application.”
In essence, the Tribunal, from the decision of which appeal was made to this Court, found that it did not have jurisdiction to entertain that application because the application was lodged out of time and there is no power to extend time to allow the lodgment of the application.
The Tribunal found that the effect of the Migration Act 1958 (“the Act”) and the Migration Regulations 1994 (“the Regulations”) is that if a delegate notifies a visa Applicant within three days of the delegate’s decision, by posting by prepaid post a copy of the delegate’s decision to the Applicant, the Applicant is deemed to receive the decision seven working days after the date of postage. In this instance that means that by operation of the Act and Regulations, the Applicant was deemed to receive the delegate’s decision on 19 October 2005. The material which supported this conclusion is set out at Court Book 35 – 45.
The 28 days for application to the Tribunal prescribed by s.412(1)(b) of the Act expired on 16 December 2005 and the Applicant’s application as I have noted did not take place until 23 December 2005. It is established clearly on the authorities that there is no power in this Court to extend time. (See Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 305, Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550 and SZEYR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 344). In this case, the Applicant’s assertion is that his Migration Agent, who he has assured me by his interpreter from the bar table has been involved at all times with his application, did not forward his change of address form to DIMIA nor did the Migration Agent allegedly inform the Applicant of the delegate’s decision.
It seems at least highly likely from materials filed by the Applicant with the Court that that Migration Agent has in fact had his status as a Migration Agent revoked and withdrawn. Nonetheless, the fact is that the Applicant’s application on 23 December 2005 was, as he himself conceded in it, out of time. There was no power in the Tribunal to extend time. The decision of the Tribunal that it could not extend time and did not have jurisdiction to entertain the complaint is not one that shows any jurisdictional error. To the contrary, it was the only decision which, in the circumstances, the Tribunal could reach.
It therefore follows that the application must be dismissed and the Applicant should pay the First Respondent’s costs. It should be noted that the Applicant sought that the proceedings today be adjourned for an unspecified period of approximately six months to enable him to file further material anticipated to be sent from Pakistan. I have not granted that application for an adjournment. The Applicant has filed several documents being respectively, according to their face at least, from the Pakistan People’s Party and from a body slightly confusingly entitled, “International Human Rights Observer”, which is based in Islamabad.
Two copies of the same letter bearing different dates from the President of the Haripur Branch of the Pakistan People’s Party assert that the Applicant is an active member of the party but do not assert relevantly anything much more. The two copies of a document from the Executive Director of International Human Rights Observer with different dates assert that the Applicant has worked in that organisation as a field worker from January 2001 until July 2005 for which he was said to receive 15,000.00 rupees per month’s salary. The document, rather similarly to that from the Pakistan People’s Party, does not assert anything whatever that might give rise on its face to any assertions of persecution.
Rather, it praises the Applicant’s diligence as an employee and goes on to wish him success in his future life. It has more the appearance of a reference than anything else. The Applicant asserted before me that he was seeking further documents from the President of the International Human Rights Observer Organisation and from another officer who he thought was a research officer with that body. It is not in any way clear that such materials could be of any greater assistance to the Applicant than those he has already filed.
Furthermore, and more importantly, even if documentation were to be received from Pakistan at this stage, which had a significant degree of probative force in assisting the Applicant’s assertions that he is the subject of persecution or possible or likely persecution in Pakistan, it would make no difference to the jurisdictional bar occasioned by the fact that the application he made to the Tribunal was out of time.
There is simply no point in adjourning the proceedings as the Applicant requests and it is for that reason that I have not done so.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Brooke Evans
Date: 24 November 2006
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