Guirgis v Minister for Immigration and Multicultural Affairs [2001] FCA 589

FEDERAL COURT OF AUSTRALIA

Guirgis v Minister for Immigration and Multicultural Affairs [2001] FCA 589

MIGRATION – appeal from review of decision of Refugee Review Tribunal that it had no jurisdiction to review a decision to refuse the grant of a protection visa – where finding of fact that notification of refusal received and application for review was filed outside of statutory time limit for application – appeal dismissed Migration Act 1958 (Cth) ss 53(3) & (4), 66(1), 412(1)(b) Migration Regulations reg 4.3.1 Minister for Immigration & Multicultural Affairs v Singh (2000) 171 ALR 53 referred to Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 323 referred to

SAMY YOUSSEF SALEM GUIRGIS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N30 of 2001

RYAN, CONTI, ALLSOP JJ

11 MAY 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N30 OF 2001

BETWEEN: SAMY YOUSSEF SALEM GUIRGIS

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: RYAN, CONTI & ALLSOP JJ

DATE OF ORDER: 11 MAY 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The Appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal, such costs to be taxed in default of agreement.

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 N30 OF 2001

BETWEEN: SAMY YOUSSEF SALEM GUIRGIS

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: RYAN, CONTI, ALLSOP JJ

DATE: 11 MAY 2001

PLACE: SYDNEY

[EX TEMPORE] REASONS FOR JUDGMENT

THE COURT: 1 This is an appeal from a judgment of a Judge of this Court on 15 December 2000 dismissing the Appellant's application for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 3 November 2000 that it had no jurisdiction to review a decision of a delegate of the Minister refusing to grant a protection visa. 2 The Appellant is a citizen of Egypt. He arrived in Australia on 1 November 1991. On 1 September 1999 he applied to the Department of Immigration and Multicultural Affairs for a protection visa under the Migration Act 1958 ("the Act"). On 9 September 1999 a delegate of the Minister refused to grant a protection visa. 3 The material before the Tribunal and the primary Judge revealed that on 9 November 1999 a case officer with the Department signed a letter to the Appellant informing the Appellant of that decision, and that the letter was sent by registered post addressed to the address provided by the Appellant on his application for a protection visa, being the address for the purposes of ss. 53(4) of the Act. 4 The application for review of the delegate's decision by the Tribunal was filed on 10 August 2000. 5 On 3 November 2000 the Tribunal determined that it had no jurisdiction to undertake a review of the decision because it was lodged outside the 28 day period after notification of the decision: see s. 412(1)(b) of the Act and reg 4.3.1 of the Migration Regulations. 6 The learned primary Judge noted that the Tribunal was satisfied that the Minister's letter of 9 November 1999 complied with statutory requirements concerning notification. His Honour also referred, as did the Tribunal, to a letter apparently signed by the Appellant and sent by him to the Minister which bore a "received" stamp of the Department of 25 February 2000. His Honour found that the Appellant wrote this letter in March 2000. As is plain from what follows, it matters not whether the date of sending and receipt was February 2000 or March 2000. 7 The importance of the letter is made clear by both the Tribunal and his Honour. The letter contains a clear admission by the Appellant that he received notice prior to the drafting of the letter (that is prior to March 2000, at the latest) of the decision of the Minister's delegate in that he gave instructions to an agent to act on his behalf "in my case with the Refugee Review Tribunal". The letter also contained a clear admission that the relevant papers had not been filed within the "appointed 28 days time period". 8 The importance of these admissions arises from the fact that it was in contest before the Tribunal whether the Appellant had received notice of the delegate's decision. The Tribunal founded its decision that the Appellant had received notice of the delegate's decision by reference to the contents of this letter. The primary Judge perceived, correctly in our view, no relevant error in this finding. 9 This factual finding of the actual receipt of notification made it unnecessary for the Tribunal or the primary Judge to base its or his reasoning on the posting of the letter to the Appellant by registered post and the operation of ss.53(3) and 66(1) of the Act, the Migration Regulations and s.29 of the Acts Interpretation Act 1901 (Cth) as discussed by this Court in Minister for Immigration & Multicultural Affairs v Singh (2000) 171 ALR 53. 10 In the light of the contents of the letter of the Appellant to the Minister referred to earlier, there can be no doubt as to the correctness of the findings of the learned primary Judge and the Tribunal to the effect that the application was filed more than 28 days after notification of the decision of the Minister's delegate to the Appellant. 11 The learned primary Judge having satisfied himself, correctly in our view, of the relevance and applicability of s.412(1)(b) of the Act, then applied the decision of this Court in Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 324 in deciding that there was no jurisdiction or power in the Tribunal to extend time for filing an application for review of an Tribunal-reviewable decision, as defined in the Act. 12 The learned primary Judge was correct in concluding that Fernando's case prevented the Tribunal from embarking on a review of the decision of the delegate. 13 The Notice of Appeal asserts that the decision of the primary Judge should be set aside on two bases: "misrepresentation of facts" and "insufficient time allocated to hear Applicant's defence". 14 As to the second of these matters, the transcript before his Honour reveals that the Appellant had the opportunity to say whatever he wished to say about the matters relevant to the disposition of the application then before the Court. There is no substance to this ground. 15 As to the first of these matters, no misrepresentation by anyone is evident from the papers; and, further, the letter of the Appellant to the Minister signed by him and referred to earlier makes it impossible, in our view, to accept that the primary factual conclusions reached by the Tribunal and the primary Judge which founded the legal conclusion dictated by Fernando were wrong. Indeed, in our view, they were plainly correct. 16 In these circumstances there is no other conclusion but that the appeal be dismissed. 17 The orders of the Court are: 1. That the appeal be dismissed. 2. That the appellant pay the respondent's costs of the appeal, such costs to be taxed in default of agreement. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Full Court.