SZJQC v Minister for Immigration and Citizenship

[2008] HCASL 66

SZJQC
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 66
S427/2007

1. This is an application for special leave to appeal from the judgment of the Federal Court of Australia, given by Dowsett J on 31 July 2007.  Dowsett J dismissed an appeal from an order of the Federal Magistrates Court (Driver FM).  The Federal Magistrate had found that the relevant decision of the Refugee Review Tribunal ("the Tribunal"), which the applicant wishes to subject to judicial review, was made on 6 October 2006.  This in turn arose out of a decision of the delegate of the Minister made on 3 May 2006, refusing to grant a protection visa. 

2. Notification of that decision was sent to the applicant's nominated postal address on 3 May 2006. The applicant is taken to have received the notification by 12 May 2006. However, the application to the Tribunal, dated 12 June 2006, was not received until 13 June 2006. This meant that the application for review was outside the 28 days time limit expressed in s 412(1)(b) of the Migration Act 1958 (Cth) and Regulation 4.31(2)(b) of the Migration Regulations 1994 (Cth). At the very latest, on the foregoing chronology, the 28 day period would have expired on 9 June 2006.

3. There is no statutory power for the Tribunal, or anyone else, to extend the time limit, whatever the reasons for the default.  The applicant has asserted that at all times he acted promptly by approaching a registered migration agent and instructing her to ensure the protection of his rights.  He states that he trusted the registered migration agent to help him "competently, diligently and fairly"; that he was very disappointed that this had not occurred; that it had involved a breach of duty to him; and that he did now not trust any migration agent.  He contended that, if correct, the unchangeable time limit would deprive him of substantive rights without any judicial consideration of the "substantial justice and the merits of the case" as s 420 of the Act ordinarily requires.  He complains that the delay "is not my fault" and that he had been unaware of the "time limit of my right to appeal".

4. Upon the assumption that the mandatory time limit in this instance is a valid law of the Commonwealth, no error is shown in the reasoning of the Federal Court and the Federal Magistrate.  Without a challenge to the constitutional validity of the time limit, there is no prospect that the decisions below could be altered.  The applicant does not specifically challenge the validity of the subject law.  On that footing, there is no prospect that an appeal to this Court would enjoy any prospect of success.  The application for special leave must therefore be refused.

5. Pursuant to Rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

M. D. Kirby
27 March 2008 J. D. Heydon