BZADI v Minister for Immigration and Anor

[2013] FCCA 1358

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZADI v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1358

Catchwords:

MIGRATION – Application for protection visa – applicant had no knowledge of decision – deemed receipt of notice of decision – actual notice not necessary – application dismissed.

Legislation: 
Migration Act 1958 (Cth), ss.66, 412(1)(b), 494B
Migration Regulations 1994 (Cth), r.4.31

Applicant: BZADI

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 967 of 2012

Judgment of: Judge Burnett

Hearing date: 1 August 2013

Date of Last Submission: 1 August 2013

Delivered at: Brisbane

Delivered on: 1 August 2013

REPRESENTATION

The Applicant appeared on his own behalf

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the title to the proceeding be amended by substituting the name "Minister for Immigration, Multicultural Affairs and Citizenship" for the name "Minister for Immigration and Citizenship" as the name of the First Respondent.

2. That the application filed on 1 November 2012 be dismissed.

3. That the Applicant pay the Respondents’ costs fixed in the sum of $4800.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 967 of 2012

BZADI

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Ex tempore Reasons)

1. The applicant makes application for review of a decision made by the Refugee Review Tribunal (“the Tribunal”) on 3 October 2012. The Tribunal was entertaining a review application made by the applicant against the Minister’s determination to refuse the granting of a protection visa to the applicant. 

2. The applicant had applied to the Department for a protection visa on 10 January 2012. The Minister’s delegate decided to refuse the grant of a visa on 19 March 2012. The Minister gave notice to the applicant of his decision and of his review rights by letter sent to the applicant dated 19 March 2012 and, for reasons which follow, the applicant says that he did not receive that letter until late in May 2012.

3. In the result, the applicant did not make application for a review of the Minister’s delegate’s decision until 20 June 2012.  The Tribunal, in its decision of 3 October 2012, determined that it had no jurisdiction to entertain the application because the application was made out of time.

4. The issue in this case is whether or not that decision was correct.  There is no dispute that the applicant did not receive the notice, however as a matter of law that is not material. The Tribunal’s jurisdiction to entertain an application is strictly governed by the Migration Act 1958 (Cth) (“The Act”). It only has jurisdiction if the relevant provisions provided for in the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) are addressed. For the decision to be a reviewable decision, s.412(1)(b) requires:

   “Application for review by the Refugee Review Tribunal

   (1) 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; and

   …”

5. The prescribed periods are set out in r.4.31 of the Migration Regulations 1994 and commence on the day on which the applicant is validly notified of the decision:

   “Applications

   (1)  For the purposes of paragraph 412(1)(b) of the Act, each period stated in subregulation (2) is prescribed as the period within which an application for review of an RRT-reviewable decision to which the period applies must be given to the Tribunal.

   (2)  A period mentioned in subregulation (1) commences on the day on which the applicant is notified of the decision to which the application relates, and ends at the end of:

   (a)  in the case of an application given to the Tribunal by or for an applicant in immigration detention on that day--7 working days (beginning with the first working day that occurs on or after that day); or

   (b)  in any other case--28 days.

   …”

   In this case, 28 days after the day on which the notice is deemed to be received.

6. There is no provision under the statute for any extension of time. Accordingly, as in this case, a failure to make application within time is fatal. Section 66 of the Act provides:

   “Notification of decision

   (1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.

   …”

7. The methods are set out in s.494B of the Act. In this case, one of the methods provided for consists of the Minister dispatching the document within three working days of the date of the document by prepaid post.

8. That method of service requires the Minister to forward the document to the last residential/business address that the applicant provided to the Minister for the purpose of receiving documents, and if the Minister serves a document a person is deemed to have received the document seven working days after the date of the document. This deemed service applies even though the document may not have been received as a matter of fact. 

9. In this case the applicant informed the Minister in his application for a protection visa that his postal address in Australia was 14 Crawford Road, Wynnum West, Brisbane, Queensland, 4178. When the Minister’s delegate made his decision on 19 March 2012, he informed the applicant by a letter of that date, addressed to 14 Crawford Road, Wynnum West, Queensland, 4178, of his decision. It follows by operation of the statute that he is deemed to have received the document within seven days after the date of that document, that is, 19 March 2012. Accordingly, for his application to be competent, it must have been commenced within 28 days of 26 March 2012. That is some time around late April 2012. 

10. His application was made on 20 June 2012 and, accordingly, was well out of time. As I noted earlier, the applicant’s complaint is that he did not have actual notice of the decision. However, the scheme of the legislation, which I have outlined, does not require actual notice provided that deemed notice can be demonstrated. In this case, the respondent has demonstrated, and the Tribunal was satisfied, that the applicant had deemed notice of the delegate’s decision. The applicant cannot demonstrate any error in the Tribunal’s reasoning or decision and, accordingly, the application fails.

11. The respondents seek costs in the sum of $4800.00 which, I note, is less than the sum it would be entitled to claim for on the scale.  The applicant resists the application for costs on the basis that, in essence, he has no capacity to pay. Inability to pay costs is no reason not to order costs. In this case the applicant has been unsuccessful and there is no reason why the usual order as to costs should not follow.  I will direct that the applicant pay the respondents’ costs fixed in the sum of $4800.00

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Burnett

Date:  16 September 2013