Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629

FEDERAL COURT OF AUSTRALIA

Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629

MIGRATION – Migration Review Tribunal holds that it has no jurisdiction because an application for review was lodged out of time – whether Tribunal erred - Migration Act 1958 (Cth) ss 347, 494D – Migration Regulations 1994 (Cth) reg 4.10

Migration Act 1958 (Cth) ss 66, 338, 347, 348, 494B, 494C, 494D Migration Regulations 1994 (Cth) regs 2.16, 4.10

ADIL IQBAL DURRANI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 538 of 2005 SACKVILLE J 20 MAY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 538 of 2005

BETWEEN: ADIL IQBAL DURRANI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 20 MAY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. There be no order as to 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 NSD 538 of 2005

BETWEEN: ADIL IQBAL DURRANI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE: 20 MAY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT

the proceedings 1 By an amended application, the applicant seeks review of a decision of the Migration Review Tribunal ('MRT'). According to the amended application, the MRT's decision was made on 2 November 2004, but it appears that the relevant decision was in fact made on 24 February 2005. 2 The MRT decided that the applicant's application for review of a decision of a delegate of the respondent ('the Minister') was 'ineligible'. The MRT's decision record gave the following reasons for its decision: '[Section 347(1)(b) of the Migration Act 1958 (Cth)] requires that an application for review is given to the Tribunal within the prescribed period, being the period stated in [Migration Regulations, reg] 4.10. The prescribed period for applying for review was 21 calendar days from the date of notification of the Department's decision. You are taken to have been notified of the Department's decision on 24 September 2004. The last date for lodgement of the application for review was 15 October 2004. As the review application was lodged with the Tribunal on 19 October 2004, the review application was not lodged within the prescribed period for applying for review.' 3 The applicant has not filed any written submissions in this Court in support of his application for review of the MRT's decision. The amended application, however, acknowledges that the application to the MRT was lodged outside the relevant time limit, but asserts that this was because the applicant was under severe stress at the time. 4 The hearing of the application was listed for 17 May 2005. At that time, the Minister's representative, Ms Nanson, acknowledged that she did not have evidence of the date on which the letter notifying the applicant of the delegate's decision, which was dated 15 September 2004, was sent to the applicant's agent. She asked for an adjournment to obtain the evidence. With some reluctance, I granted the adjournment. 5 The hearing resumed on 20 May 2005. On that date, Ms Nanson read an affidavit from an officer establishing that the letter was posted two days after the date it bears - that is, it was posted on 17 September 2004. The applicant also read an affidavit which asserted that someone had tampered with the letter notifying his migration agent of the decision. (The substance of the affidavit was plainly inadmissible in form, but no objection was taken.)