Saurabh KC v Minister for Immigration and Citizenship [2007] FCA 909 (20 February 2007)

Last Updated: 14 June 2007

FEDERAL COURT OF AUSTRALIA

Saurabh KC v Minister for Immigration and Citizenship

[2007] FCA 909

MIGRATION – application to file and serve a notice of appeal out of time - claim of non-receipt of decision of delegate of the Minister for Immigration and Citizenship.






























SAURABH KC v DEPARTMENT OF IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
VID 1073 OF 2006

BLACK CJ
20 FEBRUARY 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1073 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SAURABH KC Applicant
AND:	DEPARTMENT OF IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	BLACK CJ
DATE OF ORDER:	20 FEBRUARY 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The name of the first respondent be changed from ‘Department of Immigration and Multicultural Affairs’ to ‘Minister for Immigration and Citizenship.’
2. The application for leave to file and serve a notice of appeal out of time be dismissed.
3. The applicant pay the first respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1073 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SAURABH KC Applicant
AND:	DEPARTMENT OF IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	BLACK CJ
DATE:	20 FEBRUARY 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT
(revised from transcript)

1 This is an application for extension of time to file and serve a notice of appeal against a judgment of Riethmuller FM, delivered on 1 March 2006, dismissing an application for judicial review of a decision of the Migration Review Tribunal ("the Tribunal") dated 20 December 2005.
2 The applicant appeared today in person assisted by a friend. Without opposition from counsel for the Minister for Immigration and Citizenship (the Minister) I gave leave to the friend to read a short submission on the applicant's behalf, which he did with clarity.
3 The application was dismissed by Riethmuller FM pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 because, in the view of the Federal Magistrate, no arguable case had been raised for the relief claimed. The decision that the applicant sought to challenge before the Federal Magistrate was, as I have said, a decision of the Tribunal. Before the Tribunal the applicant had sought a review of a decision of the delegate of the Minister refusing him a student visa. The problem that the applicant faces is one of time. The Tribunal dismissed the application before it as ineligible because it was not made within 21 days of notification of the delegate’s decision, that time limit being prescribed by s 347 of the Migration Act 1958 (Cth) and regulation 4.10(1)(a) of the Migration Regulations 1994.
4 The delegate’s decision was made on 24 August 2004 and a copy of the decision was posted to the applicant on that day. The applicant was deemed to have received the decision on 2 September 2004, seven working days after it was sent: Migration Act, s 494C(4)(a). The last day for him to file an application before the Tribunal was 21 days later, on 23 September 2004. In fact his application was filed on 6 October 2005, so it was out of time by more than a year.
5 In an affidavit in support of his application to the Federal Magistrate the applicant said:
"The tribunal dismissed my appeal, stating that I was out of time. But the letter that I personally got from DIMIA was within the 28 days time frame when I applied at MRT."

Riethmuller FM noted that a claim by the applicant of non-receipt of the document posted to him was not, of itself, sufficient to found an application for judicial review: Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657; (2004) 135 FCR 550 per Spender J; see also Xie v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 172. The Federal Magistrate concluded that, as the applicant had only given evidence that he had filed his application to the Tribunal within 28 days of personally receiving the department’s letter and had not indicated date on which he received the letter, there was, in any event, no evidence that the letter was received within the 21 to 28 days previous to 6 October 2005. Essentially, the applicant’s affidavit did not help him.
6 Rule 44.12(2) of the Federal Magistrates Court Rules 2001 provides that: ‘To avoid doubt, dismissal under paragraph (1)(a) is interlocutory.’ Because the Federal Magistrate’s decision was interlocutory in nature, the applicant needs leave to appeal to this Court: Federal Court of Australia Act 1976, s 24(1A). The application for leave to appeal must be filed within 21 days from the date of the Federal Magistrate's decision: Federal Court Rules, Order 52 Rule 5(2)(a). As the Federal Magistrate’s decision was made on 1 March 2006 the application for leave to appeal should have been filed by 22 March 2006. In fact the applicant filed a draft notice of appeal and an application for extension of time on 28 September 2006, that is to say, six months later than he should have. He therefore needs an order under Order 52, Rule 5(3) that compliance with the time limit be dispensed with.
7 The only explanation that the applicant has offered for his delay in filing his notice of appeal is that he was looking for a migration agent. That is not a convincing reason for a six month delay. In support of his notice of appeal he has also filed an affidavit stating that the Department of Immigration and Multicultural and Indigenous Affairs (as it was then known) sent the notice of his decision to 22 Wordsworth Avenue rather than to number 24 where he says he actually lives. An affidavit filed by the Minister exhibits a copy of the letter from the Department addressed to the applicant at 22 Wordsworth Avenue and a copy of his application for a student visa which clearly states, in two separate places, that that is his address. The applicant's friend, in his submissions today, was not able to take the matter any further other than to say that the applicant was near the end of his course and only had one semester to complete. He asked the Court to find in favour of the applicant for those reasons, but those are not matters that the Court may consider. The Court has to consider whether the applications have been made within the time limits that the law provides. It is plain that they have not been.
8 The principles upon which leave to appeal from an interlocutory judgment should be granted are very well established and generally leave will only be granted where there is sufficient doubt about the original decision to warrant its reconsideration, and further, where refusal of the leave would result in substantial injustice: see Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Deighton v Telstra Corp Ltd [1997] FCA 1568. I am not able to detect any legal error in the judgment of the Federal Magistrate such as would warrant leave to appeal being granted. The application for an extension of time, which is for a long extension, has not been made out and leave to extend time should be refused.
9 The order of the Court is therefore that the application for leave to file and serve an application for leave to appeal out of time is dismissed. The applicant must pay the first respondent’s costs. In accordance with a request from the first respondent, I further order that the name of the first respondent be changed from ‘Department of Immigration and Multicultural Affairs’ to ‘Minister for Immigration and Citizenship.’

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Black.

Associate:

Dated: 13 June 2007

The Appellant appeared in person with Mr N Sivarajah as a McKenzie friend.

Counsel for the Respondent: Mr W Mosley

Solicitor for the respondent: Australian Government Solicitor

Date of Hearing: 20 February 2007

Date of Judgment: 20 February 2007