FEDERAL COURT OF AUSTRALIA

SZEWV v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCA 234

SZEWV v Minister for Immigration & Multicultural & Indigenous Affairs AND Refugee Review Tribunal

NSD 2074 OF 2005

JACOBSON J

SYDNEY

8 MARCH 2006

On appeal from a decision of Federal Magistrate Lloyd-Jones

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of the appeal.

On appeal from a decision of Federal Magistrate Lloyd-Jones

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of Federal Magistrate Lloyd Jones given on 28 October 2005 dismissing an application for review of a decision of the Refugee Review Tribunal (“RRT”) made on 30 June 2004.  The RRT affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa. 

Background

2                     The appellant is a citizen of India.  He arrived in Australia on a short stay (temporary) business visa on 6 November 2003.  On 4 December 2003 he applied for a protection visa.  A delegate of the Minister refused to grant the visa on 6 February 2004.

3                     On that date, the appellant was sent a letter informing him of the decision and advising the appellant that should he wish to have the decision reviewed he was to do so by way of an application lodged with the RRT within 28 days. 

4                     The appellant lodged an application for review by the RRT on 15 April 2004 although, as explained below, the appellant contended that he had lodged an earlier application in March 2004.  The RRT was satisfied that the contents of the notice sent to the appellant on 6 February 2004 complied with section 66(2) of the Migration Act 1958 (Cth).  The RRT referred to all of the relevant provisions of the Act and the regulations under the heading "Legislation" in its reasons.

5                     Therefore, it appeared to the RRT that the appellant had filed an application for review outside the 28 day time limit.  Having formed this preliminary view, the RRT sent correspondence to the appellant on 10 May 2004 requesting submissions from the appellant on this issue. 

6                     The appellant provided submissions to the RRT in a letter received by the RRT on 7 June 2004.  The appellant stated that he had by mail, lodged an application for review on 5 March 2004, that is to say, within the prescribed time limit but he did not receive a confirmation of receipt from the RRT.  He said he lodged a second application for review on 15 April 2004 when his inquiries indicated that the RRT might not have received its first application.

7                     In its reasons, the RRT observed that it had no record of the suggested earlier filing.  In the absence of evidence to support the claim of an earlier filed application the RRT found that the application for review was received by the RRT on 15 April 2004.  The RRT concluded that as the application was filed outside the mandatory time limits it was not a valid application and, accordingly, the RRT did not have jurisdiction to review the decision. 

8                     Federal Magistrate Lloyd Jones observed that no evidence was provided by the appellant to support his contention that he had filed an application on two occasions.

9                     The Magistrate considered whether any arguable case arose on the material before the Federal Magistrates Court and was unable to identify any jurisdictional error by the RRT.  Accordingly, the application was dismissed. 

Discussion

10                  The grounds of appeal set out in the notice of appeal failed to grapple with the only issue upon which the RRT determined the application.  That is to say, that it did not have jurisdiction.  Instead, the notice of appeal asserts error of law and jurisdictional error and refers to the decisions of the High Court in SAAP v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 215 ALR 162 and Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. 

11                  The appellant appeared in person this morning.  He was assisted by a Tamil interpreter.  The appellant relied upon his affidavit sworn on 1 March 2004 in which he asserted that his failure to lodge the application for review in the RRT within the time limit was due to the fault of his migration agent.  He made the same point in his written submissions and from the bar table this morning.

12                  However, the difficulty with this submission is that even if the failure to lodge the application within time was caused by the default of the migration agent, that does not overcome the proposition that the application for review was filed out of time.  There was no power in the RRT to extend the time and it is clear that the application was received outside the stipulated time limit.  The reason or reasons for the applicant’s failure to lodge the application in time are irrelevant to the question of whether the RRT had jurisdiction to determine the application. 

13                  There are a number of authorities which establish that the default of an applicant's migration agent does not amount to jurisdictional error; see, for example, VNAA v Minister for Immigration, Multicultural and Indigenous Affairs [2004] 136 FCR 407 at [16] per Sundberg and Hely JJ; see also SZBCS v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1457 at [30] per Bennett J.

14                  In any event, those authorities do not seem to me to bear upon the plain difficulty which the appellant faces; namely, that the failure to lodge the application for review within time led to the necessary consequence that the RRT did not have jurisdiction to determine the application. 

15                  The only other submission which the appellant put to me this morning from the bar table was that he needs some time.  He said that there were problems in his country and he is not in a position to leave.  That is not a matter which I can take into account in determining the fate of this appeal.  I have borne in mind the fact that the appellant is not legally represented, however, in my opinion it is plain that there was no error on the part of the learned Federal Magistrate and that the RRT rightly held that it did not have jurisdiction.

16                  It follows that the appeal must be dismissed with costs.

Associate:

Dated:              14 March 2006