VAQ v Minister for Immigration & Multicultural Affairs [2002] FCAFC 35; [2002] FCA 170

VAQ v Minister for Immigration & Multicultural Affairs [2002] FCAFC 35; [2002] FCA 170

The Tribunal did not receive the appellant's application for review within the prescribed period, including by facsimile on 12 May 2001. Under the Migration Regulations an application sent by facsimile is not lodged until received, and under the Migration Act and Full Court authority the Tribunal had no power to extend time. The Tribunal therefore lacked jurisdiction to entertain the application, the primary judge was correct to dismiss the review application, and none of the appeal grounds established error.

Jurisdiction
Australia
Judgment Date
27 February 2002
Procedural Posture
Migration Appeal Concerning Protection Visa Review Application / Full Court Appeal From Decision of Primary Judge
Outcome
Appeal dismissed with costs.
Legal Topics
['protection Visa' 'refugee Review Tribunal Jurisdiction' 'time Limits for Review Applications' 'facsimile Lodgement' 'power to Extend Time' 'summary Dismissal']
['migration Law' 'administrative Law'] ['protection Visa' 'refugee Review Tribunal Jurisdiction' 'time Limits for Review Applications' 'facsimile Lodgement' 'power to Extend Time' 'summary Dismissal']

Case Brief

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Procedural Posture

Migration Appeal Concerning Protection Visa Review Application / Full Court Appeal From Decision of Primary Judge

Legal Issues

  1. 1 ['Whether the primary judge erred in holding that the appellant had not applied to the Refugee Review Tribunal for review within the prescribed time.' 'Whether the Refugee Review Tribunal had power to extend time for filing an application for review of an RRT-reviewable decision.' 'Whether the application for review was received by the Tribunal by facsimile on 12 May 2001.' 'Whether the Tribunal was required to give the appellant an opportunity to adduce sworn evidence about lodgement.' 'Whether the distinction between an application being lodged late and being received late involved error.' 'Whether the primary judge erred by not applying the rule in Briginshaw v Briginshaw to the evidence about receipt of the fax.']

Ratio Decidendi

The Tribunal did not receive the appellant's application for review within the prescribed period, including by facsimile on 12 May 2001. Under the Migration Regulations an application sent by facsimile is not lodged until received, and under the Migration Act and Full Court authority the Tribunal had no power to extend time. The Tribunal therefore lacked jurisdiction to entertain the application, the primary judge was correct to dismiss the review application, and none of the appeal grounds established error.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellant pay the respondent's costs of the appeal."]