FEDERAL COURT OF AUSTRALIA

SZIUK v Minister for Immigration and Citizenship [2007] FCA 226  

MIGRATION – no point of principle

Migration Act 1958 (Cth) ss 66(2), 412(1)(b), 494D

Migration Regulations 1994 (Cth) reg 4.31(2)

SZIUK v Minister for Immigration & Anor [2006] FMCA 1581

SZIUK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

2412 OF 2006

TRACEY J

27 FEBRUARY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.

2.                  The appeal be dismissed with costs fixed at $2700.00

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 against a judgment of a Federal Magistrate given on 24 November 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 13 April 2006 and handed down on 20 April 2006:  see [2006] FMCA 1581.  The Tribunal had found that it did not have jurisdiction to entertain the appellant’s application.

2                     The appellant is a citizen of Pakistan who arrived in Australia on 6 July 2005.  He entered on a temporary business visa.  On 9 August 2005 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  In his application for a protection visa the appellant claimed to have a well founded fear of persecution because of his membership of the Pakistani People’s Party and his role as a human rights activist.  The appellant claimed that he had been targeted by Pakistan Muslim League supporters and that he feared the ruling authorities and police.

3                     On 10 October 2005 a delegate of the first respondent refused to grant the appellant a protection visa.  Notice of the decision was sent to the appellant by registered post.  The letter was dated 10 October 2005 and was addressed to the appellant at the address given by him in his application form.  On 23 December 2005 the appellant applied to the Tribunal for a review of the decision.

4                     On 23 January 2006 the Tribunal wrote to the appellant informing him that the Tribunal had no power to consider the application because it had been lodged out of time.  The appellant sent the Tribunal a letter dated 13 February 2006 acknowledging that the application had been late lodged and explaining that this had occurred because his Migration Agent, Dr. Zahirul Hoq Mollah, had failed to contact him to inform him of the decision of the delegate of the first respondent.  The appellant claimed that he had contacted his Migration Agent on 20 August 2005 informing him of a change in address and completing a form 929.   He assumed that it would be sent to the Department but did not know if it had been sent.

5                     The appellant claimed that he only became aware of the decision of the Tribunal when he contacted the Department of Immigration and Multicultural Affairs on about 20 December 2005.  He had been unable to contact his Migration Agent throughout September, October and November. He spoke to his Migration Agent’s wife in December and she informed him that his Migration Agent had departed for overseas.

6                     The appellant claimed that he had since learned of the deregistration of the Migration Agent and claimed that the Migration Agent had not legally been able to provide migration advice when he provided advice to the appellant.  

THE DECISION OF THE TRIBUNAL

7                     The Tribunal found that it had no jurisdiction to entertain the application for review because it had been lodged out of time.  The Tribunal was satisfied that the contents of the notice of the of the decision of the delegate complied with the requirements of s 66(2) of the Migration Act 1958 (Cth) (“the Act”).  The Tribunal found that the appellant did not give the Department the name and address of an authorised recipient for the purposes of s 494D of the Act or informed the Department of a new address for service.  The decision advice was sent to the correct address and the application for review was not received by the Tribunal until the prescribed period had expired.

GROUNDS BEFORE THE FEDERAL MAGISTRATE

8                     On 5 May 2006 the appellant applied for judicial review of the decision of the Tribunal. He did so on various grounds. The only ground alleging error by the Tribunal was that it had erred in holding that it did not have jurisdiction to review the delegate’s decision. The other grounds alleged error by the delegate. In an “amended application”, the appellant requested that the Federal Magistrates’ Court accept documents relating to his factual claims.

THE DECISION OF THE FEDERAL MAGISTRATE  

9                     The Federal Magistrate held that neither the Federal Magistrates’ Court nor the Tribunal had power to extend time for filing an application for review.  The decision by the Tribunal not to entertain the application did not involve jurisdictional error.  It was the only decision which, in the circumstances, the Tribunal could have made.

NOTICE OF APPEAL

10                  The notice of appeal to this Court raised the following grounds:

1.      The Federal Magistrate did not consider that Dr Zahirul Hoq Mollah had been authorised by the appellant to act as his authorised recipient.

2.      The judgment involved a breach of procedural fairness as there was no public information to indicate that Dr Zahirul Hoq Mollah was someone who was not a fit and proper person to conduct a review. His licence had been suspended on 6 June 2005. Information was not forwarded to the Department of Immigration and Multicultural Affairs. The appellant was disadvantaged because he was not properly notified of the decision of the delegate of the first respondent.

3.      The Tribunal did not consider the duties of the Migration Agent with regard to the communication received from the appellant.

4.      The Department of Immigration and Multicultural Affairs acted in such a way as to restrict access to a fair consideration of the grounds for the appellant’s claims.

5.      Error of law on the face of the record. It was alleged that the record showed that the appellant was sent a registered letter addressed to the address given at the time the application was lodged. The letter was returned to the Tribunal thereby demonstrating that the Migration Agent or the Department of Immigration and Multicultural Affairs did not carry out their duties as required by law.

None of these grounds had been relied on before the Federal Magistrate.

11                  At the hearing of the appeal before me the appellant appeared in person.  He had the assistance of an interpreter. He said that he had relied on Dr Mollah and had assumed that Dr Mollah had acted appropriately in dealing with the Department on his behalf.

12                  Although the appellant claims that his late application occurred because of the negligent conduct of his Migration Agent it is notable that he did not notify the Department that he had an agent acting for him.  In any event, as the Tribunal and the learned Magistrate have held, the application was lodged a week late.  The Tribunal did not have power to enlarge time or jurisdiction to entertain the application:  see s 412 (1)(b) of the Act and reg 4.31(2) of the Migration Regulations 1994 (Cth)

13                  In my opinion, the Federal Magistrate’s decision was inevitable and correct.  No appellable error was made. 

14                  The appeal should be dismissed with costs.

Associate:

Dated:         27 February 2007