VAAZ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 233 (13 August 2002)

Last Updated: 14 August 2002

FEDERAL COURT OF AUSTRALIA

VAAZ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCAFC 233

MIGRATION - no error demonstrated - appeal dismissed

Migration Act 1958 (Cth) ss 53, 66, 412, 477

Migration Regulations 1994 (Cth) Regulations 2.16 and 5.03

VAAZ OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V141 OF 2002

MARSHALL, NORTH AND MERKEL JJ

MELBOURNE

13 AUGUST 2002

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V141 OF 2002

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	VAAZ OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	MARSHALL, NORTH AND MERKEL JJ
DATE OF ORDER:	13 AUGUST 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

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	V141 OF 2002

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	VAAZ OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	MARSHALL, NORTH AND MERKEL JJ
DATE:	13 AUGUST 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT

1 This is an appeal from a judgment of a judge of the Court ("the primary judge") delivered ex tempore on 7 March 2002. On that day his Honour dealt with a motion of the respondent for summary dismissal of the appellant's application for judicial review of a decision of the Refugee Review Tribunal ("the RRT"). The primary judge allowed the motion and dismissed the appellant's application.

2 The appellant is a citizen of Ukraine. He entered Australia on 1 January 2001 as the holder of a temporary business visa, sub-class 456. The business visa was valid until April 2001. The appellant applied for a protection visa on 15 February 2001. On 16 March 2001 he was granted a bridging visa which was valid until 22 May 2001. The protection visa application was refused by a delegate of the respondent on 17 April 2001. On 12 September 2001, the appellant was located by officers of the respondent's department. The next day he was interviewed and determined by the respondent to be an unlawful non-citizen.

3 On 17 September 2001, the appellant was notified by the respondent that arrangements had been authorised to remove him to Ukraine. The next day the appellant sought judicial review in this Court of the delegate's decision to refuse him a protection visa and an interlocutory injunction to restrain his removal from Australia. The application (and the request for interlocutory relief) was dismissed by the primary judge on 19 September 2001. The primary judge observed in his judgment that no application was made to the RRT within the time required under the Migration Act 1958 (Cth) ("the Act") due to the conduct of a Mr Eugene Kravitz, who formerly represented the appellant, apparently in the capacity of a migration agent.

4 An application to review the delegate's decision was made to the RRT on 1 October 2001. In a decision made on 13 November 2001, which was communicated to the appellant by letter dated 16 November, the RRT considered that it had no jurisdiction to determine the application for review as it was lodged more than 28 days after the notification of the delegate's decision. The RRT noted that an application for review of the delegate's decision must be made within a period not later than 28 days after the notification of the decision; see s 412(1)(b) of the Act. It also noted that "(t)here is no provision for extension of time".

5 The RRT referred to ss 53 and 66 of the Act and Regulations 2.16 and 5.03 of the Migration Regulations 1994 and said that:

"Under these provisions, the Minister may notify the applicant of a decision to refuse a visa by sending a notice of the decision to the last address given to the Minister by the applicant under s53(4) of the Act or if no such address has been given, to the last residential address given to the Minister by the applicant. The notice must contain certain information about why the visa was refused and, if there is a right of review, how to apply for review of the decision. If the notice complies with these requirements, and is sent within 3 days after the date of the notice, it is taken to have been received 7 days after that date. This will be so even if the notice was never in fact received.

Therefore, if the notice of a decision to refuse a protection visa was sent within 3 days to the correct address, the 28 day period within which a review application must be lodged with the Tribunal commences 7 days after the date of the notice."

6 The RRT observed that the notice of the delegate's decision was dated 26 April 2001. It said that the letter was sent to the appellant's residential address but was returned unclaimed. Having been sent within 3 days to the correct address the notice was taken to be received by the appellant on 3 May 2001. The relevant 28 day period expired on 31 May 2001 but the application for review was not received by the RRT until 19 September 2001.

7 In his reasons for dismissing the appellant's application to the Court for review that primary judge referred to the application made for an injunction on 19 September 2001 and to the role of Mr Kravitz. The primary judge then referred to the decision of the RRT which was subject to judicial review before him and the related motion filed by the respondent. The primary judge also referred to an allegation made by the appellant that two of the appellant's compatriots had procured consideration by the RRT of the merits of their claims for a protection visa when he had not. An affidavit was filed on behalf of the respondent to contradict that allegation.

8 At [5] of his reasons the primary judge said that:

"The substance of that affidavit has today been conveyed to the applicant through an interpreter. He has been unable to contradict the assertions contained in it but points out that Mr Proniuk was forced to depart Australia because of concern about the unexplained death of his father-in-law. A decision by the Tribunal in Mr Vlakh's case is expected to be given, the applicant says, tomorrow, 8 March. The applicant has urged that arrangements should be made for him to be afforded legal assistance to prosecute his claim for review of the Tribunal's decision. However, for reasons which I have earlier explained, I consider that he has no hope, even with legal assistance, of demonstrating any error by the Tribunal. If it is relevant at all, I consider that Mr Vlakh's prospects of obtaining a review on the merits of his claim are equally hopeless. I therefore decline to invoke in this case the Court's mechanisms for pro bono legal assistance."

9 The primary judge's reference to the appellant's lack of hope of demonstrating any error by the RRT, was no doubt a reference to the appellant's failure to lodge an application for review of the delegate's decision until 19 September 2001.

10 At [6] of his reasons the primary judge said:

"For the reasons which I earlier gave, the Minister's motion for summary dismissal of the application must be upheld. In addition, it seems that the present application for review of the Tribunal's decision of 16 November 2001 is itself out of time, not having been lodged with 28 days of the notification of the Tribunal's decision. It was in fact lodged on 4 February 2002. For all of these reasons the Minister's motion will be allowed. The application will be dismissed with costs."

11 His Honour observed that the application made to the Court in 2002 was filed on 4 February 2002, outside the 28 day time limit. That time limit is provided for in s477 of the Act, which states that:

"(1) An application to the Federal Court or the Federal Magistrates Court under section 39B of the Judiciary Act 1903 for:

(a) a writ of mandamus prohibition or certiorari; or

(b) an injunction or a declaration;

in respect of a privative clause decision in relation to which the jurisdiction of the Federal Court is not excluded by section 476 must be made to the Federal Court within 28 days of the notification of the decision.

(1A) An application to the Federal Magistrates Court under section 483A for:

(a) a writ of mandamus, prohibition or certiorari; or

(b) an injunction or a declaration;

in respect of a privative clause decision in relation to which the jurisdiction of the Federal Magistrates Court is not excluded by section 476 must be made to the Federal Magistrates Court within 28 days of the notification of the decision.

(2) The Federal Court or the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application referred to in subsection (1) or subsection (1A) outside the period specified in that subsection.

(3) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section."

12 Paragraph 10 of the affidavit of Ms Sonia Law, which was filed in support of the respondent's motion raised the question of non-compliance with s477 of the Act. That paragraph states that:

"On 4 February 2002, the applicant filed an application for review in this court, seeking that his review application be accepted by the RRT. Pursuant to section 477 of the Migration Act 1958, an application to the Federal Court for review of a decision made under the Migration Act 1958 must be made within 28 days of the notification of the decision. Sub-section 477(2) precludes the court from making an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the 28 day time limit prescribed by section 477."

13 The primary judge accepted that Ms Law's analysis of the operation of the relevant statutory provisions was correct and concluded that the application before him was out of time. His Honour was therefore entitled to dismiss the application on that ground alone. Further, it is plain that the appellant's application to the RRT was also not made within the time provided for by s412(1)(b) of the Act and was also out of time.

14 For the above reasons we are of the view that no error was made by the primary judge and he was correct in dismissing the application. Accordingly, we would dismiss the appeal with costs.

15 At the commencement of the appeal the appellant applied for an adjournment of the hearing of his appeal. On 1 August 2002 the appellant had filed a motion seeking that the appeal be adjourned to the November 2002 Full Court sittings. In an affidavit filed in support of the motion the appellant said that he was not ready for the appeal to be heard on 13 August 2002 because he had been refused pro-bono representation. He further said that he was finding it difficult to obtain legal assistance because of his financial situation. The appellant asserted in his affidavit that:

"(the) Ukranian community and (a) group of people who support refugees will help me to solve my financial problems and get assistance for (the) Full Federal Court."

16 The appellant was unable to provide an assurance that financial assistance was likely to be forthcoming in time for any appeal in November 2002. In any event it is our view that, as the appeal is without merit, the application for an adjournment should be refused.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Marshall, North and Merkel.

Associate:

Dated: 13 August 2002

The Appellant appeared in person
Counsel for the Respondent:	Mr C Horan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 August 2002
Date of Judgment:	13 August 2002