MZNAX v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal from orders of Phipps FM made on 6 April this year, refusing to review by way of prerogative writ a decision of the Refugee Review Tribunal ("the Tribunal"). By that decision, the Tribunal refused to grant the appellant a protection visa. 2 The appellant is a Sinhalese citizen of Sri Lanka. He arrived in Australia on 13 April 2002 on a temporary business visa. On 10 May 2002 he applied for a protection visa. That application was refused by a delegate of the respondent Minister on 29 August 2002. The applicant applied to the Tribunal for review of that decision, but the application was not received by the Tribunal until 8 October 2002. The learned Federal Magistrate made the following relevant findings of fact; '2. … … The application was received by the tribunal on 8 October 2002. The tribunal determined that the application was received later than the 28-day period which was required as a combination of subs 412(1)(b) of the Migration Act 1958 and reg 4.31 of the Migration Regulations 1994. It was in fact one day out of time. … … 4. The circumstances in which the application was received out of time are unfortunate. What was put before the tribunal was that the applicant had a migration agent acting for him. The application for review was prepared and was signed and ready to be sent on 7 October 2002. The applicant's adviser suffered a severe migraine and had to go home. The adviser, the migration agent, left instructions to an assistant for the application to be sent by facsimile to the tribunal. Unfortunately the facsimile machine was malfunctioning and it was not until 8 October 2003 that the migration agent discovered that the fax had not gone through. The application was not sent until 8 October 2003.' 3 Mr Cheung, who appeared as solicitor for the appellant, did not seek to dispute those findings of fact but urged the Court by application of the principles of natural justice to "allow the applicant some leeway" so as to obtain a review on the merits of the delegate's decision. In his written submissions, Mr Cheung referred to Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377 and SQMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 979. 4 In Singh a majority of a Full Court of this Court held to be invalid Reg 5.03 of the Migration Regulations 1994, which was analysed as creating a harsh, unintended consequence for the operation of Reg 4.31. Regulation 5.03 has since been repealed and their Honours cast no doubt on the validity of Reg 4.31 which, as the learned Federal Magistrate observed, underpins, in conjunction with s 412(1)(b) of the Migration Act 1958 (Cth), the absence of jurisdiction in the Tribunal in the present case. 5 SQMB was a recent decision where Lander J granted an extension of time within which to appeal from a decision of a single Judge of the Court, who had, in effect, dismissed an application for review of a decision of the Tribunal for non-compliance with certain procedural directions which the trial Judge had earlier given. There was no suggestion in that case that the Tribunal lacked jurisdiction to make the reviewable decision in question. 6 While I am not without sympathy for the appellant in the circumstances described by the learned Federal Magistrate, I am bound by Full Court authority in Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407, which has subsequently been applied twice by French J in VOAL v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 397 and VOAM v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 396, to uphold the reasoning at first instance and dismiss the appeal with costs. 7 Accordingly that will be the order of the Court.