FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 506

MIGRATION – application for a protection visa – application for review of the decision made by a delegate of the Minister lodged outside the time limit – whether the Tribunal has jurisdiction when an application is lodged out of time.

Migration Act 1958  s 412(1)(b), s 420

Shrestha v Minister for Immigration and Multicultural Affairs (unreported, Sackville J,

13 October 1997) followed

DHARMINDER SINGH v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1150 of 1998

HILL J

20 APRIL 1999

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  No order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

EX TEMPORE REASONS FOR JUDGMENT

1                     The applicant, Mr Dharminder Singh, is a national of India.  He arrived in Australia on 14 November 1997 and applied for a protection visa.  He claims that he is entitled to be considered as being a person to whom Australia has protection obligations under the provisions of the 1951 United Nations Convention Relating to the Status of Refugees as subsequently amended.  He is entitled to a protection visa if the Minister or a delegate is satisfied that he is a person entitled to refugee status.

2                     Mr Singh's application was rejected by a delegate of the Minister, the respondent in the present application, on 6 February 1998.  A letter notifying Mr Singh of the rejection of his application was forwarded to him by registered mail at an address of a friend which he had notified to the Minister as the address for service.

3                     A copy of that letter was sent also to a migration agent, Mr Harold Jones at an address in South Yarra.  This address, in fact, differs from the address that Mr Singh had given the Minister which was a post office box address.  However, nothing seems to turn upon this.  Unfortunately, neither of those letters came to Mr Singh's attention until considerably later than the day on which they were sent.  Mr Singh was away in the country.  The wife of Mr Singh’s friend at the address notified to the Minister, picked up the registered mail of 6 February 1998 but misplaced it.  And for some other reason, the copy forwarded to the migration agent appears also to have been mislaid.  As I say, again, no suggestion could possibly be made that Mr Singh was at fault.  No suggestion is made that he knew about either letter for some time.  Indeed, it seems he first learned about the adverse decision when the migration agent sent to his address a newsletter with a note on the back stating that he had overstayed his visa and requesting that a friend call the migration agent.

4                     When the friend did call the migration agent, he learnt that the application had been refused.  Not only was the application refused but also by that time, the time for application for review of the decision, as stipulated in s 412(1)(b) of the Migration Act 1958 (“the Act”), had expired.  Mr Singh, nevertheless, sought a review of the adverse decision by the Refugee Review Tribunal.  That application was not received until approximately 28 May 1998 and long after 13 March 1998, being the expiration of the period of 28 days from the date of notification of the original letter plus a further seven days.

5                     The Tribunal gave Mr Singh the opportunity to make submissions to it on the question of jurisdiction.  It decided that the time limit imposed by s 412(1)(b) and r 4.31 was mandatory and that the Tribunal had no discretion to entertain an application lodged outside that limit.  Mr Singh now applies to the Court for judicial review of the Tribunal's decision.  He seeks, in essence, an order that would set aside the Tribunal’s decision and facilitate, in some way, a hearing on the merits of his application.

6                     Mr Singh submits that a consequence of s 420 of the Act is that the Tribunal, inter alia, has to act according to substantial justice and the merits of the case.  He submits that the decision which the Tribunal made rejecting his application to it was based on a technicality, that being the lodging of an application out of time.  He relies also upon the circumstance that the fact that the rejection by the Minister did not come to his notice was not his fault.  In written submissions he asked, rhetorically, why did the Tribunal wait until 2 October 1998 to make a decision if there was no power in the Tribunal to consider the merits of his claim.

7                     He complains also that neither he nor his migration agent was given information referring to various sections of the Act which led, ultimately, to the Tribunal's conclusion.  He rightly points out that he has never been given the chance to present his case in person.  He says that he fears harm should he return to India and that his fear of so doing has increased, especially with the recent troubles in that country. 

8                     The question whether the time limits set out in s 412(1)(b) are mandatory so that failure to apply, within those limits, leads to the result that the Tribunal has no jurisdiction has been the subject of a number of cases in this Court.  The latest of these, at least to which my attention has been drawn, is a decision of Sackville J in Shrestha v Minister for Immigration and Multicultural Affairs 13 October 1997 (unreported).  In that case, his Honour summarised a number of other cases which had preceded Shrestha.  His Honour's distaste for legislation which can result in a person's complaint not being dealt with on the merits and for reasons which are not due to the fault of that person, is perfectly clear from his Honour's reasons.

9                     However, his Honour concluded that where the application for review was lodged out of time, the Tribunal had no jurisdiction and further that the consequence of the legislation and the regulations made pursuant to it was that an applicant is taken to have been notified of a decision seven days after the date of the decision and it is not open to an applicant to argue that the decision was not in fact received.  As a matter of comity I should follow decisions of single judges of this Court unless of the view that they are clearly wrong.  I am not of such a view in the present case.  I note that it appears not previously to have been argued that s 420 of the Act, requiring the Tribunal to act according to substantial justice and the merits of the case should be read together with s 412 and perhaps s 414 so as to confer upon the Tribunal a discretion, at least, to extend the time limits in s 412 where to do so is necessary to comply with s 420, that is to say where to do so is necessary for the Tribunal to afford to an applicant substantial justice.

10                  The contrary argument is that s 420 only comes into operation once there is a valid application for review and because the application for review is out of time, the obligation in s 420 does not arise.  I think that the latter view is the better one.  The other view would lead to the conclusion that Shrestha and the cases earlier decided were indeed wrongly decided.  I am not prepared to reach that conclusion.

11                  I should say that Mr Singh could apply to the Minister under s 417.  It may be that would permit the Minister to consider the merits of the case.  After all, it must surely be in the public interest that justice appear to be done as well as that it be done.  Any such decision would, of course, be a matter for the Minister.  Whether any possibility of review of that decision, for example by an application to the High Court, exists is not a matter upon which it is appropriate for me to comment. 

12                  I would dismiss the application.

13                  The Minister seeks costs.  I understand from what has been said to me by Mr Singh from the bar table, that he would be unable to comply with an order for costs in any event.  The Minister says that the fact that the notice was not received by Mr Singh was not the fault of the Minister.  He complied with his obligation by sending the notice by registered mail to Mr Singh.  In parenthesis it might be said that the Minister did not quite comply with his obligation so far as he provided a copy to the migration agent, not to the post office box address which the agent nominated, but to the premises at which the agent either worked or lived or both worked and lived. 

14                  The present is not a case where either party was at fault.  Mr Singh has been let down by the system.  In the circumstances it seems to me that the case is one where no order should be made as to costs.

Associate:

Dated:              20 April 1999