FEDERAL COURT OF AUSTRALIA

SZEBS v Minister for Immigration,
Multicultural and Indigenous Affairs [2006] FCA 456

SZEBS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND Refugee Review Tribunal

NSD 2564 of 2005

JACOBSON J

SYDNEY

27 APRIL 2006

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs in the proceedings.

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

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of Federal Magistrate Smith, given on 2 December 2005 dismissing an application for review of a decision of the Refugee Review Tribunal (“RRT”) made on 7 July 2005. 

2                     The Refugee Review Tribunal determined that it did not have jurisdiction to entertain the application for review because it was functus officio or because the application was filed out of time.

Background

3                     The appellant is a citizen of the Peoples Republic of China.  He arrived in Australia in January 2004.  He made an application for a protection visa on 25 February 2004.  A delegate of the Minister refused to grant the visa on 31 March 2004.  The appellant then sought review of the Delegate's decision by the RRT.

4                     The application for review by the RRT, which is the subject matter of the present proceedings was the second application made by the appellant for a review of the Delegate's decision of 31 March 2004.  The first application was made to the RRT within time on 3 May 2004. 

5                     The appellant was invited to attend a hearing.  He did not attend and the RRT exercised its powers under section 426(A) of the Migration Act 1958 (Cth) (“the Act”) to make a decision on the review without taking any further action to allow the appellant to appear.  The RRT made a decision adverse to the appellant on 2 June 2004.  The appellant sought review by the Federal Magistrates Court of the first decision of the RRT.

6                     The matter was listed before Federal Magistrate Mowbray on 29 November 2004, but the appellant failed to appear.  The learned Federal Magistrate dismissed the application summarily under rule 13.03(A)(c) of the Rules of the Federal Magistrates Court.  The appellant did not make an application to the Federal Magistrates Court to set aside the order, nor did he appeal against the order.

7                     On 11 May 2005 the appellant lodged a second application for review of the Delegate's decision.  As Federal Magistrate Smith observed at [25], the Tribunal declined to exercise jurisdiction on two bases.  The first was that it had already discharged its functions under the Migration Act to review the Delegate's decision, this being done by way of the decision dated 2 June 2004.  The second basis was that the application for review lodged on 11 May 2005 was received by the RRT well outside the mandatory time limit set by section 412 of the Act. 

8                     The learned Federal Magistrate referred to a number of authorities in support of the proposition that the time limit for seeking review by the RRT of a reviewable decision, is mandatory.  The learned Federal Magistrate said at [24] and [26] that he could see no error in the RRT’s reasonings and that he agreed with it.

Discussion

9                     In Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 18, at [35] Merkel J held that the RRT is functus officio upon a valid decision being handed down in accordance with the requirements of the Act.

10                  There is nothing to suggest that the decision of the RRT of 2 June 2005 was not a valid decision.  Accordingly, this is sufficient basis for dismissing the appeal.

11                  Moreover, the course taken by the RRT in relation to the time limit is supported by Full Court authority.  In Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407 at [31], Heerey J said that:

“Sections 412 and 414 of the Act clearly stipulate that the making of an application within the prescribed time is an essential preliminary to the exercise of the Refugee Review Tribunal's jurisdiction.”

Finkelstein Js reasons at [44] are to the same effect; see also Dowsett J at [55]. 

12                  The same approach was stated by a Full Court in VEAN of 2002 v Minister of Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570 at [33].  Gray, Whitlam and Mansfield JJ held that there is no power to override the time limitations prescribed by section 412(1)(b).  They said that the issue is not the procedural obligations imposed upon the RRT in performing its review functions, but whether the RRT has power to entertain the application for review lodged out of time.  Their Honours have observed that the terms of section 412(1)(b) are clear and that they do not admit of qualification. 

13                  The appellant said in his written submissions that the RRT erred in failing to take into account the default of his migration agent.  However the fault of the agent, even if established by evidence, could not confer jurisdiction on the RRT.  Furthermore, there are a number of authorities which establish that the default of an application's migration agent does not of itself amount to jurisdiction error; see for example VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 at [16] per Sundberg and Hely JJ; see also SZBCS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1457 at [30] per Bennett J.

14                  It follows for the reasons that I have given that the appeal must be dismissed with costs.

Associate:

Dated:              4 May 2006