NACG v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT STONE J: 4 We have before us today two appeals which raise essentially the same issues. Both these appeals deal with applications lodged on 23 August 2000 for protection visas. The appellants were both assisted by the same migration agents and made virtually identical claims of fear of persecution. 5 The decision of a delegate of the Minister to refuse the application for protection visas was made on 12 September 2000 and it would appear that letters advising of these decisions were mailed to both appellants on 13 September 2000. Under s 412(1)(b) of the Migration Act 1958 (Cth) ("the Act") an application for review of such a decision must be made within 28 days of the decision being notified. The Act and its regulations provide that if advice of a decision is posted within three days of the decision having been made then the notification of the decision is deemed to have occurred seven days after the date of the decision. In both these cases then the decision is deemed by those provisions to have been notified by 19 September or, at the very latest, 20 September 2000. 6 It would appear that applications for a review of this decision were signed by both appellants well within the 28 day period and that the appellants were told by their then migration agent that the applications had been sent so that they would be received well within the statutory period. However, it was accepted by the Tribunal and subsequently by the primary judge in this case that the documents were not received by the registry of the Tribunal until 9 November 2000. That date is a date which is well outside the 28 day period provided by the Act. 7 As a result the Tribunal decided that it had no jurisdiction to review the delegate's decision. This is based on the indisputable fact that the Act does not allow for any extension or variation of the 28 day period. The primary judge upheld the decision of the Tribunal. It would appear that the primary judge, with the cooperation of the Minister, went to some effort to allow the appellants time to produce additional evidence which might support their claim that the applications had been made in time and no such evidence was forthcoming. 8 It is very unfortunate that in this case it would appear that, entirely through no fault of the appellants, their applications were not received in time. The inexorable and inevitable result is that the Tribunal had no jurisdiction to review the decisions and the primary judge was correct in so deciding. This Court has no jurisdiction to review the Tribunal's decision and it must uphold the decision of the primary judge. I would therefore dismiss the appeals with costs. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 11 June 2002 Counsel for the Appellant (NACG): The appellant appeared in person