In-Ophat v Minister for Immigration & Multicultural Affairs [2001] FCA 1137

FEDERAL COURT OF AUSTRALIA

In-Ophat v Minister for Immigration & Multicultural Affairs [2001] FCA 1137 MIGRATION – notice of objection to competency – where application unclear as to which decision it relates – appeal from decision of Administrative Appeals Tribunal to dismiss proceedings under s 42A(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) Administrative Appeals Tribunal Act 1975 (Cth) s 42A(2)(a), s 44 Migration Act 1958 (Cth) s 411(1)(c), s 412(1)(b), s 475(2)(d), s 485(1) Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407 referred to Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 179 ALR 238 referred to SUKANYA IN-OPHAT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1060 of 2001 STONE J 16 AUGUST 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1060 OF 2001

BETWEEN: SUKANYA IN-OPHAT

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 16 AUGUST 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the application be dismissed as incompetent; 2. the applicant pay the 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

NEW SOUTH WALES DISTRICT REGISTRY N 1060 OF 2001

BETWEEN: SUKANYA IN-OPHAT

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE: 16 AUGUST 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT

background 1 The applicant is a citizen of Thailand who arrived in Australia on 18 November 2000. On 29 December 2000, she lodged an application for a protection visa, which was refused by a delegate ("Delegate") of the respondent ("Minister") on 9 March 2001. On the same day, the applicant was informed by letter that her application had been refused and that she had the right to apply to the Refugee Review Tribunal ("RRT") for review within 28 days. Instead, on about 10 April 2001, the applicant applied to the Administrative Appeals Tribunal ("AAT") for review of the Delegate's decision. That application advised that B.T. & N.G. Consultants ("Consultants") were representing the applicant. How the application came to be made to the AAT is not explained. It is of particular concern that this should occur when the applicant was represented by the Consultants who purport to operate in conjunction with registered migration agents. 2 On 11 April 2001, a Deputy Registrar of the AAT wrote a letter to the Consultants stating that, in her view, the AAT did not have jurisdiction to review the Delegate's decision and suggesting that the Consultants contact the RRT. On 20 April 2001, the Consultants wrote a letter to the AAT asserting that, in their client's view, the AAT does have jurisdiction to review the decision made by the Delegate. The Consultants' letter gives no reasons for its assertion. Unsurprisingly, it appears that neither the Consultants nor the applicant attended the hearing before the AAT on 24 May and 15 June 2001 and, on this basis, on 15 June 2001, the AAT dismissed the application under s 42A(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth). The AAT's order gave the applicant leave to move to set aside the dismissal of her application within 28 days of the date of the order.