Singh v MIMA [2001] FCA 1710

FEDERAL COURT OF AUSTRALIA

Singh v MIMA [2001] FCA 1710

LALIT BHAGWAN SINGH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS V 872 OF 2001 NORTH J 5 OCTOBER 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 872 OF 2001

BETWEEN: LALIT BHAGWAN SINGH

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: NORTH J

DATE OF ORDER: 5 OCTOBER 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The proceeding is dismissed. 2. The applicant is to pay the respondent's costs of and incidental to the application. 3. The order in paragraph 2 is stayed until 5 January 2002. 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 V 872 OF 2001

BETWEEN: LALIT BHAGWAN SINGH

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: NORTH J

DATE: 5 OCTOBER 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The critical issue for determination is whether the applicant, Mr Lalit Bhagwan Singh, made an application for review to the Refugee Review Tribunal (the Tribunal) within the required time. The applicant applied for a protection visa on 9 March 2001. On 3 May 2001 a delegate of the respondent refused that application. Mr Singh was notified of the decision of the delegate and was taken to have received that notification no later than 10 May 2001. 2 Mr Singh filed an application for review of the decision of the delegate. Section 412(1)(b) of the Migration Act 1958 (Cth) (the Act) provides: "An application for review of an RRT-reviewable decision must: … (b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision." 3 On 17 August 2001, the Tribunal determined that it did not have jurisdiction to entertain the application, because the application for review was filed out of time, and the Tribunal did not have power to extend the time for filing an application. 4 On 23 August 2001, Mr Singh filed an application to this Court to review the decision of the Tribunal. 5 By a motion, notice of which was filed on 4 September 2001, the respondent sought orders that the application of Mr Singh be summarily dismissed. The basis of the application for summary dismissal was that the Tribunal was so clearly and unarguably correct in holding that the receipt on 1 August 2001 of the application for review of the delegate's decision was outside the time fixed by s 412(1)(b), and that the Tribunal was also so clearly and unarguably correct in holding that it had no power to extend that time, that judgment should be given for the respondent immediately. 6 This matter has now been before me on three occasions. 7 As Mr Singh was self-represented, and as the respondent relied on a number of legal arguments, the Court was bound to take particular care that Mr Singh was not prejudiced by his lack of legal knowledge. 8 At the first hearing, on 17 September 2001, the respondent contended that not only was the application filed out of time, but also that the Tribunal had no power to extend the time fixed by s 412(1)(b) for the lodging of an application for review with the Tribunal. There is no express prohibition in s 412(1)(b) against extending the time. There is an express exclusion of any power to extend time for filing of an application for review by the Court of a decision of the Tribunal in s 478 of the Act. Consequently, there seemed to be a possible argument that there might be power to extend time in such a case. In the circumstances, I suggested that the matter be adjourned for further argument on this aspect. Both parties agreed. 9 On 21 September 2001, the respondent filed written submissions on the question of the power of the Tribunal to extend time for filing an application for review of a decision of a delegate. The respondent relied on two Full Court decisions – Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407 and Guirgis v Minister for Immigration and Multicultural Affairs [2001] FCA 589 – which, it was contended, established that there was no power to extend time. 10 On 24 September 2001, the matter again came on for hearing. Mr Singh was asked to respond to the written submissions concerning the power to extend time. He had nothing to say concerning the legal issue. I then determined that the respondent's argument on this issue was correct, and that the Tribunal was correct in determining that it had no power to extend time for lodging the application. 11 Mr Singh, however, explained that his argument was that there was no need to extend the time because he had been told by his migration agent that the application had, in fact, been lodged in time, on 12 May 2001. This answer to the application for summary judgment had not previously been raised. 12 The grounds of review of a decision of the Tribunal by the Court are prescribed in s 476(1) of the Act. Usually those grounds do not allow for the leading of further evidence before the Court. The Court must review the decision of the Tribunal and is, consequently, restricted to the evidence before the Tribunal. However, in the circumstances of this case, it did seem appropriate to provide for the parties to lead evidence as to the circumstances in which the application was filed, and the parties did not resist this course. Thus, I gave directions for the resolution of the factual issue as follows: "1. By 28 September 2001 the applicant file and serve any affidavit on which he intends to rely in support of the argument that the application for review of the decision of the delegate made on 3 May 2001 was taken within 28 days. 2. By 4 October 2001 the respondent is to file and serve any affidavit on which he intends to rely. 3. The motion notice of which was filed on 4 September 2001 is adjourned to 5 October 2001 at 10.15." 13 In accordance with the directions, on 28 September 2001, Mr Singh filed a statutory declaration made by his migration agent, Mr Mohamed Habib Tuferu. 14 In response, the respondent filed an affidavit affirmed on 3 October 2001 by the Deputy Registrar of the Tribunal, Ms Katherine Matic. This material was directed to the application of sub-regulations 4.3(1)(iii)(d) and (iv) of the Migration Regulations. The former permits the lodgment of an application for review to the Tribunal by fax. Regulation 4.3(1)(iv) provides, so far as is relevant: "An application transmitted in accordance with regulation 4.3(1)(iii)(d) is not to be taken to be lodged until it is received at a registry of the Tribunal." 15 In Ishmael v Minister for Immigration & Multicultural Affairs [1998] FCA 1654 (11 December 1998), Wilcox J held that where a fax machine malfunctioned and thereby caused the admitted transmission of a fax not to be completed by receipt, there was no lodgment within the meaning of the regulation. His Honour referred to the apparent harshness of the result which followed from the application of this regulation in those circumstances. 16 I now turn to the question of the circumstances of the present case. Mr Habib was cross‑examined in relation to his statutory declaration. He gave evidence that he faxed the application for review on 12 May 2001 to the Tribunal and thereby satisfied the requirements of timely lodgment. Of course, he was not able to say whether the Tribunal received the application. He did indicate that his file does not record whether his own facsimile transmission was successful. 17 Ms Matic's affidavit explained the procedures of the Tribunal in relation to the receipt of both fax and mail applications for review. The Tribunal maintains a log of incoming applications whether received by mail, by fax or over the counter. This register is called the correspondence register. A search was conducted of that register for the period 12 May to 7 June 2001, the latter being the end of the period within which a timely application could have been lodged. No entry in that register recorded a receipt by fax or mail of the application on behalf of Mr Singh. 18 Ms Matic also deposed to two internal memoranda, which referred to a phone conversation between an officer of the Tribunal and Mr Singh's adviser, in which the officer told the adviser that the search of the Melbourne and Sydney database had not revealed any application filed on behalf of Mr Singh prior to 1 August 2001. 19 In the course of oral evidence given by Ms Matic today, an activity report was tendered. This report appears to have been generated by the Tribunal's fax machine, and shows that some faxes were received on 12 May 2001, but no fax was received on behalf of Mr Singh. 20 Mr Gilbert, who appeared as counsel for the respondent, drew attention to the fact that the apparent harshness of the operation of the regulation was mitigated by s 48B of the Act which provides for an application to the Minister, in effect, for permission to lodge a further application for a protection visa. Mr Singh has taken advantage of this provision and there is currently before the respondent an application seeking that permission. 21 I am satisfied, on the balance of probabilities, that the Tribunal did not receive any fax on 12 May 2001 containing an application by Mr Singh for review of the decision of the Minister's delegate. It is not necessary for me to determine whether or not Mr Habib sent a fax on 12 May 2001. Two possibilities exist – either he sent the fax and there was a malfunction, either in his machine or the Tribunal's machine which caused the transmission to fail; or, alternatively, Mr Habib did not send the fax at all. 22 I am not required to determine which of these alternatives is the more likely, because the only issue before me is whether the evidence establishes that the Tribunal received the fax. As I mentioned earlier, it may be, that on the proper view of the nature of the underlying proceeding, the Court is not entitled to have regard to any evidence which was not before the Tribunal. Whichever way the matter is viewed, the Tribunal was plainly correct in determining that it did not have jurisdiction to entertain Mr Singh's claim. 23 For these reasons, the proceeding must be dismissed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.