Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Kumar v Minister for Immigration & Multicultural Affairs [2001] FCA 291
AJITH PATHURA VALAPPIL KUMAR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 59 of 2001 KATZ J 21 MARCH 2001 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 59 of 2001
BETWEEN: AJITH PATHURA VALAPPIL KUMAR
APPLICANT
AND: MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE: KATZ J
DATE OF ORDER: 21 MARCH 2001
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1 The application be dismissed. 2 The applicant pay the respondent's cost of the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 59 of 2001
BETWEEN: AJITH PATHURA VALAPPIL KUMAR
APPLICANT
AND: MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE: KATZ J
DATE: 21 MARCH 2001
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 There is pending in the Court a proceeding in which Mr Ajith Pathura Valappil Kumar is seeking an order of review in respect of a decision made by the Refugee Review Tribunal ("the RRT"). By its decision, the RRT held that it had no jurisdiction to entertain an application which had been made to it by Mr Kumar for review of a decision of the respondent Minister's delegate ("the Minister" and "the delegate" respectively) to refuse to grant Mr Kumar a protection visa. 2 The Minister has moved for summary dismissal of Mr Kumar's proceeding on the ground that no reasonable basis for the application is disclosed: see O 54B, r 5 and O 20, r 2 of the Federal Court Rules (Cth). 3 It is the case that Mr Kumar's application for an order of review does not state any grounds of review of the RRT's decision, but the Minister's motion is not based on that omission from Mr Kumar's application for an order of review; rather, it is based on the evident correctness of the RRT's decision on the jurisdictional question. 4 The relevant background facts are that, on 12 September 2000, the delegate refused to grant Mr Kumar's protection visa application. Then, on 13 September 2000, the delegate sent by registered post, both to Mr Kumar and to the migration agent then acting for him, notice of the decision. Those notices were sent to then-current addresses both for Mr Kumar and for his then-migration agent. Finally, on 9 November 2000, Mr Kumar's then-migration agent presented at the counter at the Sydney Registry of the RRT Mr Kumar's application for review of the delegate's decision. 5 Paragraph 412(1)(b) of the Migration Act 1958 (Cth) ("the Act") provides that an application of the sort which Mr Kumar's then-migration agent gave to the RRT must be given to it within the period prescribed and subreg 4.31(2) of the Migration Regulations 1994 (Cth) ("the Regulations") prescribes the relevant period. That period commences on the day on which the applicant is notified of the decision to which the application relates and ends (relevantly) at the end of twenty-eight days. 6 It is unnecessary for present purposes to delve into the intricacies of the question when Mr Kumar was notified of the delegate's decision within subreg 4.31(2) of the Regulations, since Mr Kumar does not dispute that his application for review was not given to the RRT within the period prescribed. 7 Before the RRT, a migration agent then acting for Mr Kumar, being a different migration agent from the one who had previously represented him, made two submissions as to why the RRT had jurisdiction to entertain Mr Kumar's application for review, nonetheless though that application had been given to the RRT outside the prescribed period. 8 First, the migration agent submitted that Mr Kumar had signed the application for review by the RRT on 5 October 2000, had then been told by his then-migration agent that the application would be given to the RRT in time and had later been told that it had been posted to the RRT on 12 October 2000. Mr Kumar had therefore done all that he could to ensure that his application was given to the RRT within the prescribed period. 9 Secondly, Mr Kumar's then-migration agent, it was submitted, "had the ostensible authority" of the Minister's Department and therefore Mr Kumar's application for review "should [be] deemed to be lodged with the RRT on the … day when the applicant … signed [the] RRT review application". 10 The RRT concluded that neither of those two arguments was acceptable and that, as I have already mentioned, it had no jurisdiction to entertain Mr Kumar's application. It stated, "Th[e] statutory scheme does not contemplate that, whether through some form of agency or otherwise, a review application is lawfully within my jurisdiction at the moment when the review application is signed or at the time when a review application would, but for an agent's alleged lack of attention, have been received by a registry of the Tribunal." 11 Before me, Mr Kumar gave sworn evidence which confirmed the accuracy of those matters of fact which had earlier been put to the RRT by his migration agent as to the conduct of the former migration agent. Mr Kumar also acknowledged before me, in effect, that the RRT had not erred in concluding that his application to it had been out of time. However, because Mr Kumar is not legally represented before me, I have given independent consideration to the question whether either of the two arguments put to the RRT by his migration agent justified a conclusion by the RRT that it did have jurisdiction with respect to his application to it for review of the delegate's decision. 12 Like the RRT, however, I consider that each of those arguments was manifestly untenable and it therefore follows that I accept that no reasonable basis for the application to this Court is disclosed. Accordingly, I will grant the Minister's motion for summary dismissal of Mr Kumar's application for an order of review and will order that Mr Kumar's proceeding be dismissed with costs. 13 Before I conclude these reasons for judgment, I should mention that if Mr Kumar's account of his relations with his former migration agent is to be believed, and I have no reason whatever to doubt the accuracy of that which he told me on oath, then Mr Kumar has been placed in a very unfortunate situation by the conduct of that migration agent. Mr Kumar is aware that it would be open to him to make application to the Minister that the Minister should make a determination under s 48B of the Act. Of course, it is not for me to urge the Minister as to what course should be followed if Mr Kumar does seek a determination under s 48B of the Act, but, if the circumstances are as Mr Kumar has put them before me, then one might think that the Minister would be favourably disposed, all other things being equal, to
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