FEDERAL COURT OF AUSTRALIA

Kim v Minister for Immigration & Multicultural Affairs [2006] FCAFC 64

YONG JA KIM v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR

NSD 88 of 2006

HEEREY, CONTI & JACOBSON JJ

4 MAY 2006

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.

REASONS FOR JUDGMENT

1                     The applicant brought an application for leave to appeal from a decision of Lloyd-Jones FM, delivered on 16 December 2005: Yong Ja Kim v Minister for Immigration [2005] FMCA 1863. The Magistrate refused an application for constitutional writs in respect of a decision of a delegate of the Minister to refuse to grant the primary visa applicant, her spouse and their two children educational (temporary) (class TH) visas.

2                     It was thought that the application which was filed in the Court on 19 January 2006 was out of time being more than 21 days after the Magistrate's judgment. However, as is pointed out in the respondent's written submissions, O 3 r 2(4)(a) of the Federal Court Rules has the effect that the period 24 December 2005 to 14 January 2006 is excluded from calculation. Therefore the time for appeal had not expired.

3                     At the suggestion of counsel for the Minister the proceeding was treated as a substantive appeal and it was directed that the draft notice of appeal stand as a substantive notice. We also granted leave to add the Migration Review Tribunal as a respondent.

4                     The appellant was legally represented before the Magistrate but not on the appeal. She was assisted by an interpreter.

5                     In her notice of appeal the appellant says that she lost the opportunity to attend the hearing before an order was made against her and that this was not due to her fault. It is said that the purported decision of the Tribunal was null and void because it denied natural justice and procedural fairness to the appellant.

6                     When invited to put oral submissions to the Court this morning the appellant said that she did not receive any letters from the Tribunal and she had documents ready for the hearing.

7                     It appears from the reasons for decision of the Magistrate that on 3 June 2004 the Tribunal wrote to the appellant inviting her to appear and give evidence before the Tribunal at a hearing on 11 August 2004. There was evidence before the Tribunal in the form of an affidavit by Mr Willoughby-Thomas, the Tribunal’s District Registrar, to the effect that he sent the letter in question by prepaid post to the appellant's residential address as recorded in her application to the Tribunal.

8                     In those circumstances the Magistrate was plainly correct in applying the relevant provisions of the Migration Act 1958 (Cth) (the Act). Section 379A(4) of the Act provides that one means of giving documents to a person for the purposes of proceedings is by prepaid post to the last address provided to the Tribunal by the recipient. Section 379C(4) provides that in such a case the person is taken to have received the document seven working days after the date of the document. This means that the Magistrate, and this Court on appeal, cannot inquire into whether or not in fact the document was received. The Act conclusively provides for this effect. It is therefore not necessary for the purposes of the present appeal to discuss conflicting decisions of single judges as to whether there is a residue of common law natural justice available. On any view, the specific point raised by the appellant is dealt with by the Act.

9                     No error is shown in the Magistrate's decision. The appeal will be dismissed with costs.

Associate:

Dated: 19 June 2006