SZJQC v Minister for Immigration and Citizenship

[2007] FCA 1349

FEDERAL COURT OF AUSTRALIA

SZJQC v Minister for Immigration & Citizenship [2007] FCA 1349

SZJQC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 746 OF 2007

DOWSETT J
31 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 746 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJQC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	31 JULY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the appeal be dismissed;

2.the appellant pay the first respondent’s costs of the appeal.

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 746 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJQC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE:	31 JULY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a federal magistrate. The proceedings before the magistrate involved an application for constitutional writs pursuant to s 476 of the Migration Act 1958 (Cth). The present appellant had applied for a protection visa, which application was refused, such decision being communicated to him by letter dated 3 May 2006. Pursuant to s 494B(4) such letter had to be dispatched within three working days of its date. Pursuant to s 494C it was taken to be received seven working days after the date of the document. That meant that it was taken to be received on 12 May 2006. Pursuant to s 412(1) and the relevant regulations the appellant then had 28 days in which to apply to the Tribunal for a review of the departmental decision. That is, the last day upon which he could seek such review was 9 June 2006. His application for review was dated 12 June and was received on 13 June. It was, therefore, out of time. The Tribunal determined that it had no jurisdiction. The magistrate upheld that finding.

2. The appellant’s notice of appeal alleges that the magistrate was wrong in finding that no jurisdictional error attended the Tribunal’s decision.  It also points out that the magistrate said that he had, on several occasions, expressed the view that it was unfortunate that the Tribunal lacked power to extend time.  Whatever may be the magistrate’s view, it is not relevant for present purposes.

3. As to the allegation that the magistrate erred, the Tribunal’s jurisdiction depended upon facts which were objectively identifiable.  There can be no doubt about the date of the letter advising refusal of the original application, the date on which the application for review was signed and the date upon which it was received.  It is true that there is only limited evidence as to the department’s compliance with the requirement that the letter be posted within three days of its date.  However, that was a factual matter for determination by the Tribunal.  It was not bound by the rules of evidence.  It found that the letter had been sent within the required period of three days.  There has been no attack upon that finding.  It appears never to have been a live issue in these proceedings.  In any event, there is some evidence from which such an inference might be drawn.  It seems that the appellant told the magistrate in evidence that upon receipt of the letter he saw his migration adviser, and that this was early in May.  He departed from that position in written submissions filed in the present appeal.  He now says that he received the letter in mid‑May and saw her on about 15 May.  That is inconsistent with the evidence given before the magistrate and, of course, the outline of submissions is not sworn. 

4. The migration agent swore an affidavit in these proceedings to which she attached the envelope in which she received a copy of the departmental letter.  That envelope bears what appears to be a franking mark with the date 4 May 2006, suggesting that the letter was posted on that date.  Although it seems that the department was obliged to send the letter to the appellant personally and not to the migration agent, it did so.  One might reasonably infer that such letter was posted at the same time as that sent to the migration agent.  As I have said, this matter was not a live issue before the magistrate.  Such evidence as was before the magistrate, including that of the appellant, supported an inference that the letter had been sent early in May, probably within the three day period. 

5. The appeal must be dismissed.  I order that the appellant pay the first respondent’s cost of the appeal.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:        28 August 2007

Counsel for the Appellant:	The appellant appeared in person
Counsel for the First Respondent:	Ms S A Sirtes
Solicitor for the First Respondent:	Clayton Utz
Counsel for the Second Respondent:	The second respondent did not appear
Date of Hearing:	31 July 2007
Date of Judgment:	31 July 2007