Misto v Minister for Immigration - [2008] FMCA 695

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MISTO v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 695

MIGRATION – Review of decision of the Migration Review Tribunal – Tribunal found that it did not have jurisdiction – application for review to the Tribunal lodged out of time – complaint that applicant was not properly notified of the delegate’s decision – no error – application dismissed.

Migration Act 1958 (Cth), ss.476, 347, 338, 347, 66, 494B, 494C
Migration Regulations 1994 (Cth) reg.4.10

Haddara v Minister for Immigration and Multicultural Affairs (1999) 166 ALR 401
Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657
SZFOV & Ors v Minister for Immigration and Anor [2006] FMCA 1280

Applicant:

MAHMOUD MISTO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 3969 of 2007

Judgment of:

Nicholls FM

Hearing date:

9 May 2008

Date of Last Submission:

9 May 2008

Delivered at:

Sydney

Delivered on:

10 June 2008

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Appearance for the Respondents:

Ms B Anniwell

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application made on 24 December 2007 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3969 of 2007

MAHMOUD MISTO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 24 December 2007 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) which found on 29 November 2007 that it did not have jurisdiction to review the decision of a delegate of the respondent Minister made on 19 July 2007 to refuse a student visa to the applicant. The application also seeks review of the delegate’s decision.

Background

When this matter first came on for directions on 2 April 2008 (“the first Court date”) the applicant appeared in person and although an interpreter in the Arabic language was provided, the applicant did not require the services of the interpreter. Ms B Anniwell appeared for the first respondent.
The Minister sought to file in Court, and leave was granted, a response. The Minister’s position was that to the extent that the applicant sought review of the delegate’s decision, with reference to s.476(2)(a) of the Act, the Court did not have jurisdiction to hear an application made in respect of a “primary decision.”
As to the whole of the applicant’s application, the matter was set down for final hearing, which was ultimately conducted on 9 May 2008.
At the first Court date, after noting that a “Mr T Laba-Sarkis” had assisted the applicant in the making of his affidavit of 22 December 2007 (which put the Tribunal decision before the Court) and after the applicant confirmed that he intended that Mr Laba-Sarkis assist him before the Court (and to appear at the final hearing with him), I indicated to the applicant that Mr Laba-Sarkis was not a legal practitioner in NSW and that I was concerned that the applicant understood that it may be in his interest (given that matters involving the Migration Review Tribunal often involve statutory or regulatory interpretation) and given the subject and manner of what was assessed in his application to the Court, to consider obtaining proper legal advice.
At that time, I understood from submissions made by the applicant that his complaint was that he did not receive any “telephone call from immigration” but that nonetheless, his application before the delegate was refused in those circumstances. I understood the applicant to be arguing that there was an obligation on the delegate to have made a telephone call to him before refusing his application for a visa.
In any event, orders were made to enable the parties to file further relevant documentation in this matter.
At the final hearing on 9 May 2008, the applicant appeared in person and Ms Anniwell again appeared for the first respondent (Mr Laba-Sarkis did not appear with the applicant, nor seek to directly assist the applicant before the Court).
The applicant advised that he had consulted a lawyer and that his name was: “Mr Laba-Sarkis” (despite the Court having advised him on the earlier occasion that Mr Laba-Sarkis was not a qualified legal practitioner in NSW).

The Application

The application before the Court asserts the following:
“The Grounds of the Application are:
1. The Tribunal erred in law by not dealing with The Review as the Applicant was not properly notified. Notification returned to sender & never received.
2. The Delegate & the Tribunal erred in law as both acted in bad faith & failed to understand the law. Failed to phone the Applicant.”
In an attachment to the application under the hearing of “Grounds” the applicant also put forward the following:
“1. … the tribunal erred in law by not dealing with the review as the applicant was not properly notified. Notification of Delegate’s decision return to sender.
2. The Tribunal ignored important information and acted contrary to the law.
2. The Tribunal ignored prospects of succeeding on the review.”

Material Before the Court

In addition to the application, the relevant material before the Court for the applicant is as follows:
1)The applicant’s affidavit of 22 December 2007, which annexes the Tribunal decision record of 30 November 2007, and a copy of a letter sent to the Tribunal by the applicant dated 31 October 2007, in connection with the application for review.
2)The affidavit of the applicant of 22 April 2008.
For the first respondent:
1)The response filed on 2 April 2007.
2)The affidavit of Brin Ellen May Anniwell of 29 April 2008 with annexures.
3)The first respondent’s outline of submissions filed on 30 April 2008.
4)Respondent’s Exhibit 1 (“RE1”) – Letter from the delegate to the applicant dated 19 July 2007.
In relation to the applicant’s affidavit of 22 April 2008, Ms Aniwell objected to paragraphs [7] and [9]. I upheld the objection to paragraph [9] but considered the applicant’s “imploring” the Court to take into consideration the cases: Haddara v Minister for Immigration and Multicultural Affairs (1999) 166 ALR 401 (“Haddara”) and SZFOV & Ors v Minister for Immigration and Anor [2006] FMCA 1280 (“SZFOV”) as being made by way of submissions.
Ms Anniwell withdrew the objection to paragraph [7] on the basis that the applicant confirmed that the Court was to understand his evidence in this regard as relating to his not having any further communication with the Minister’s department after responding to a letter dated 19 June 2007 (this letter was not put in evidence before the Court) and that the delegate dealing with his case failed to give the applicant a telephone call to advise as to the progress of his application or even to otherwise write in acknowledgment of the receipt of the documents which the applicant had provided.
The applicant’s affidavit of 22 December 2007 annexing the Tribunal decision and a letter from the applicant of the Tribunal dated 31 October 2007 was admitted into evidence without objection.
The applicant’s evidence at paragraph [5] of his affidavit of 22 April 2008 drew specific attention to his letter of 31 October 2007, which set out for the Tribunal the applicant’s background to his complaint, and the articulation of the central complaint that he now wishes to bring to this Court.
No objection was taken to the affidavit of Ms Anniwell of 29 April 2008 and the Court also had before it “RE1,” being a copy of a letter dated 19 July 2007 from the relevant delegate, which had been addressed and sent to the applicant, which on its face is said to be the notification of the decision to refuse the applicant a student visa for which he had applied on 14 June 2007.

The Factual Circumstances

From the material before the Court, the following relevant background is not in dispute:
1)The applicant applied for a student visa on 14 June 2007.
2)On 19 July 2007, a delegate of the first respondent refused this application (a copy of that decision record is at annexure “A,” at pages 5 to 8 of the affidavit of Ms Anniwell.)
3)On 9 October 2007, the applicant made an application for review of the delegate’s decision to the Tribunal (see annexure “C” to the affidavit of Ms Anniwell).
4)On 23 October 2007, the Tribunal wrote to the applicant (see annexure “D” to the affidavit of Ms Anniwell, at pages 21 to 22). This letter invited the applicant to comment on the issue of whether the Tribunal had jurisdiction to conduct the review. The letter put the applicant on notice that s.347 of the Act, which deals with the requirements for making an eligible application for review, includes the requirement that any such application be made within the prescribed time period. The letter advised the applicant as follows:
“According to Regulation 4.10, you were required to make the application for review 21 calendar days after the date that the Department notified you of its decision. The Department made its decision on 19 July 2007 and is taken to have notified you of the decision on 30 July 2007. As the Department’s letter was posted to an address within Australia to you, you are taken to have received the Department’s letter seven (7) working days after the date of the letter, even if it is was [sic] not received. This means that the last day you could have made the application for review was 20 August 2007. You made the application for review on 9 October 2007.
Your application for review may not be eligible because the application was not made to the Tribunal within the prescribed time period.”
5)The applicant was given the opportunity to respond in writing by 15 November 2007.
6)The applicant’s response is copied as an annexure to his affidavit of 22 December 2007 (and see also annexure “E” to the affidavit of Ms Aniwell, at pages 24 to 26).
In his letter to the Tribunal, the applicant stated that he had made an application for a visa to study in Australia on 14 June 2007. On 19 June 2007, he received a request for further information to which he responded. He claimed that when he made the application, he was informed “in writing” that he would be contacted within eight weeks. When he later contacted the Department, he was told that his application had been refused on 19 July 2007, and when he attended at the Department’s offices the next day, he was given the refusal letter by hand (he said that this was on 2 October 2007). The applicant’s letter stated that he had not received this letter before, and that when he went to the relevant post office he had been told that the letter which had been sent to him: “was never collected.” The applicant’s letter also stated:
“I honestly believed that I had not seen the card which was sent to me by the Post Office and I was not made aware of it until I obtained the attached sample from the post office.”
The applicant’s letter continued, indicating that it was only when he was given the letter that he became aware of the requirement that an application for review must be made within twenty-one days, and that the decision had been made on 19 June 2007, but that he had never received the letter. He claimed that both the Department and the Guildford Post Office were “responsible,” and that he was “innocent,” asking that the Tribunal accept his explanation and “allow [him] to continue with [his] review.” He claimed that he had filed his application within the prescribed period because he had not been notified of the refusal until 2 October 2007, and in fact lodged his application for review on 9 October 2007 (the applicant makes reference in his letter to the period within which the application was required to be made as “28 days after the 2 October”).

Tribunal’s Findings

The Tribunal found that the applicant was seeking review of an MRT reviewable decision “covered by s.338(2)” of the Act and that the applicable prescribed period was twenty-one days, starting from the time at which the applicant was notified of the decision (with reference to s.347(1)(b)(i) and reg.4.10(1)(a)). The Tribunal was satisfied that the delegate’s decision notice complied with the requirements of s.66(2), and that the decision notice (dated 19 July 2007) was sent by pre-paid post on 20 July 2007 to the applicant’s last residential address provided by him to the Minister for the purpose of receiving documents.
The Tribunal stated that evidence from Departmental records showed that the relevant registered mail item was sent to the applicant’s “Yennora” address on 29 July 2007. The Tribunal found that in these circumstances, the decision notice was dispatched within three working days of the date of the letter and that it was sent to the correct address in accordance with s.66(1) and s.494B(4) of the Act. The applicant, therefore, was taken to have received the notice on 30 July 2007, being seven working days after the date of the notice.
The Tribunal further noted that the application for review was lodged on 9 October 2007 and that the applicant had stated on the application to the Tribunal that he had not received any letters from the Department until he went to the Department’s office in Sydney on 2 October 2007, and was then handed a copy of the decision. The Tribunal also noted that the applicant provided a “Receipt for ‘Signature on Delivery’ Articles,” which showed that the Guildford post office received the Department’s decision letter on 23 July 2007. (This appears before this Court at annexure “E” to the affidavit of Ms Anniwell, at page 26) The Tribunal noted that it wrote to the applicant on 23 October 2007, inviting further submissions in relation to the “jurisdiction issue.” But the Tribunal found that it did not accept that the applicant’s submissions provided: “any legal basis for accepting the review application lodged on 9 October 2007.”
In all, the Tribunal found that the applicant had been properly notified of the delegate’s decision, and was taken to have been notified on 30 July 2007. It found that the prescribed period of twenty-one days within which the application for review could be lodged ended on 20 August 2007, and as the application for review was not received by the Tribunal until 9 October 2007, after the prescribed period had expired, it was outside the mandatory time limit. Therefore, it found that it was not a “valid application,” and that the Tribunal did not have jurisdiction to deal with it.

Hearing before the Court

The applicant was cross-examined before the Court and gave evidence that, in effect, repeated what he had put to the Tribunal by way of explanation and submission. He told the Court that he did not become aware of the delegate’s decision until 1 October 2007, that he did not receive a copy of the delegate’s decision notice until 2 October 2007, and made his application for review to the Tribunal on 9 October 2007, which was, he claimed, within the prescribed period. The applicant confirmed that he had not received the notification letter from the Department earlier. It was only after he made inquiries, that he subsequently became aware of the refusal of his visa application.
When a copy of this letter of 19 July 2007 containing, on its face, a registered post number (“RE1”) was shown to the applicant during cross-examination, his evidence was that, notwithstanding that it was addressed to him, he did not receive the letter. The applicant confirmed that he understood that the relevant postal process was that “someone has to sign to receive it,” but that if no one was at home then the “post office leaves a little card.” Asked if he knew what had happened in his case, the applicant said, “Yes, I know, but the wind blew it away.” He subsequently conjectured: “If someone had been going around and taking the letters,” and that if that were the case, it could not be his fault. I understood the applicant’s evidence to be that while his subsequent inquiries with the post office at Guildford revealed that a letter had been sent to him at an earlier time, he did not receive any notice from the Gilford post office to that effect.
The applicant’s evidence was also that when he did contact the Department, a “Mr Robin Reich” (this was the delegate who made the decision) informed him that the letter of notification had been returned to the Department. The applicant’s evidence as to when this telephone conversation was said to have taken place was confused (“I can’t remember exactly, but it was after three moths from the date I submit my paper”). Further in evidence, the applicant stated that he had responded to a letter from the delegate seeking further information from him and that the telephone call took place some two months after he responded to this letter. From the applicant’s evidence, I understood that this telephone conversation took place sometime in late September or the first day of October (the applicant at one point gave evidence that he made this telephone call on “31 of October” – I note, however, that the application for review was made on 9 October 2007).

Consideration

While the application before the Court puts forward grounds which assert error on the part of the Tribunal, it is not clear whether the application also seeks review of the delegate’s decision, and whether it asserts error on the part of the delegate beyond the alleged failure to properly notify the applicant of the decision to refuse him a student visa. During the course of the hearing, the applicant sought leave to put before the Court some documents which he said showed that he had satisfied the requirements for the visa for which he had applied, and that, presumably, therefore, the delegate should have granted the visa.
To the extent that these documents did not relate to the issue of notification of the delegate’s decision (which is clearly a relevant factor to the issue before the Court, namely, whether the Tribunal erred in its analysis that it did not have jurisdiction to hear the application for review), I refused leave for these documents to be filed in Court.
I agree with the respondent that this Court does not have jurisdiction to review the delegate’s decision. The relevant jurisdiction of this Court is set out in s.476 of the Act. Section 476(2) provides that this Court has no jurisdiction in relation to a “primary decision.” In s.476(4) a “primary decision” is said to include, relevantly, a decision that is reviewable under Part 5 of the Act, whether or not the decision has in fact been reviewed, and further relevantly, s.476(4)(b):
“that would have been so reviewable if an application for such review had been made within a specified period.”
Plainly (and noting also the Tribunal’s analysis, with reference to s.338(2)), the delegate’s decision is an MRT reviewable decision, and as such, this Court has no jurisdiction to hear any ground relating to that decision.
The issue before the Court is whether there is any error in the Tribunal finding that it did not have jurisdiction to conduct the review.
The applicant’s complaint is that he did not receive notification of the delegate’s decision (dated 19 July 2007) until October 2007, at which time he filed his application for review to the Tribunal within five days, which was within the relevant prescribed period. Therefore, the applicant submits, the Tribunal was in error to find that it did not have jurisdiction.
In addition, at the hearing before the Court, the applicant pressed that the letter notifying him of the delegate’s decision (see annexure “A” to the affidavit of Ms Aniwell and RE1) made reference to the prescribed period being “21 calendar days” within which the applicant could lodge his application for review and that the correct period was “28” not “21” days. Given the reference to “28 days” appearing in the language of s.347(1) of the Act (relevant to the time within which an application for review must be made to the Tribunal), I felt it appropriate to give the applicant and the respondent the opportunity to further develop this issue by way of written submissions to be put before the Court. Both parties took up this opportunity and made such submissions.

The applicant’s supplementary written submissions of 27 May 2008, for the most part, again seek to press the issue that the applicant did not receive notification of the delegate’s decision until much later than that which was said by the respondent to have been the date of dispatch, and that the delegate “ignored his duties to readdress it or re-dispatch it,” and that it cannot be “deemed received by the Applicant as it was clearly not received nor dispatched.” The applicant’s submissions provided no detail beyond a general reference to the prescribed period as to why there was any further failure to comply with the relevant statutory regime.
The Tribunal’s reasoning as to why it did not have jurisdiction in this matter was that it had before it an MRT reviewable decision, within the meaning of the s.338(2) of the Act. That the applicable prescribed period was twenty-one days starting from the date that the applicant was notified of the decision within which the applicant was required to make his application for review. Further, the Tribunal was satisfied that the contents of the decision notice complied with the requirements of s.66(2) of the Act in that the letter was dated 19 July 2007, and was sent by pre-paid post on 20 July 2007 from a place in Australia to an address in Australia, which was the last residential address provided to the Minister by the applicant for the purpose of receiving documents (the applicant had not notified the Department of any other authorised recipient for this purpose, and the Tribunal said it relied on evidence from departmental records to show that the registered mail item was sent to the applicant’s Yennora address on 20 July 2007).
Further, the Tribunal found that the decision notice was dispatched within three working days of the date of the letter to the correct address (with reference to s.66(1) and 494B(4) of the Act) and that, on that basis, the applicant was taken to have received the notice on 30 July 2007, being seven working days after the date of the notice. In these circumstances, given that the application for review was lodged on 9 October 2007, it found that the applicant had been properly notified of the delegate’s decision, and that with reference to the prescribed period of twenty-one days, the application for review should have been lodged within the period ending 20 August 2007. As it was lodged outside that period, it did not constitute a valid application and the Tribunal had no jurisdiction.
The Tribunal turned its mind to the applicant’s submissions to it, in response to its invitation for comment. The Tribunal noted the applicant’s submission that he only received the letter of notification when he attended the offices of the Department on 2 October 2007. It also noted that he had provided a copy of a “Receipt for ‘Signature on Delivery’ Articles,” which showed that the Guildford Post Office received the decision letter on 23 July 2007. The Tribunal did not accept that the applicant’s submissions provided any “legal basis for accepting the review application lodged on 9 October 2007.” It found that the application had been properly notified of the delegate’s decision, as at 30 July 2007, that the prescribed period of twenty-one days ended on 20 August 2007 and, given that the application for review was not received by the Tribunal until 9 October 2007, after the prescribed period had expired, the Tribunal found it did not have jurisdiction to hear the matter.
I cannot see error in the Tribunal’s reasoning.
First, as to the issue of what is the relevant period within which an application for review must be made following notification of the decision, s.347(1) of the Act is in the following terms:
“(1) An application for review of an MRT‑reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the prescribed period, being a period ending not later than:
(i) if the MRT‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)--28 days after the notification of the decision; or
(ii) if the MRT‑reviewable decision is covered by subsection 338(5), (6), (7) or (8)--70 days after the notification of the decision; or
(iii) if the MRT‑reviewable decision is covered by subsection 338(9)--the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).”
The applicant argued that the delegate’s notice was deficient in that it referred to the relevant period as being “21” rather than “28” days as stated in s.347, and that the Tribunal was in error in agreeing that the applicable prescribed period is twenty-one days.
The delegate’s decision clearly falls within s.338(2) of the Act, given that it was a decision which relates to a visa which could have been granted while the applicant was in the migration zone, and indeed the applicant made the application while in the migration zone. The application for review, therefore, requires pursuant to s.347(1)(b)(i) that it be given to the Tribunal within the prescribed period.
Regulation 4.10(1)(a) of the Migration Regulations provides relevantly:
“Time for lodgment of applications with Tribunal (Act, s 347)
(1) For paragraph 347 (1) (b) of the Act, the period in which an application for review of an MRT‑reviewable decision must be given to the Tribunal:
(a) if the MRT‑reviewable decision is mentioned in subsection 338 (2) or (7A) of the Act -- starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received; or …”
Plainly, s.347 establishes that the application for review must be given to the Tribunal within the prescribed period and for a decision “covered” by subsection 338(2), such a prescribed period must end not later than twenty-eight days after the notification of the decision. Such a period is prescribed at reg.4.10(a) as being twenty-one days after the day on which the notice was received.
I do not see any inconsistency as between the two periods (twenty-one days or twenty-eight days). The reconciliation between the two can be seen with reference to the plain language of the legislation. Section 347 establishes the time limit within which the Regulations may prescribe the applicable time for the making of applications for review. The relevant regulations may prescribe a period shorter than twenty-eight days. That is, prescribe a period within twenty-eight days after the day on which notification of the delegate’s decision is received, but not greater. The prescribed period of twenty-one days complies with this statutory requirement.
This was the view of this part of the legislation and reg.4.10, taken by the Court in similar circumstances in Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657 (“Murphy”) per Spender J (see in particular [20] to [24]). This complaint by the applicant, therefore, does not succeed.
Section 66(1) provides, relevant to the circumstances of this case, that if the Minister refuses to grant a visa, the applicant is to be notified of the decision in the prescribed way. The applicant does not dispute that the letter was sent other than in the prescribed way (other than for the reference to twenty-one rather than twenty-eight days). The material before the Court reveals that the notice was dated 19 July 2007 (see RE1 and annexure “A” to the affidavit of Ms Anniwell) and was sent by pre-paid post on 20 July 2007 from a place in Australia, being the offices of the Department of Immigration to an address in Australia, being the last residential address provided by the applicant for the purpose of receiving documents.
Annexure “B” to the affidavit of Ms Anniwell put before the Court the relevant part of the Departmental “Outgoing Registered Post Report,” showing that on Tuesday 23 October 2007, a registered post item was sent to the applicant at “Yennora” and that this item was given a registered post number: “RP35388852.” This coincides with the registered post number on the Australia Post “Receipt for ‘Signature on Delivery’ Articles” provided by the applicant to the Tribunal (at annexure “E” to the affidavit of Ms Anniwell), which shows that this article, with that number, was received at the Guilford post office on 23 July 2007.
From the material before the Court, therefore, the letter complied with the provisions of s.66(1) and s.494B(4) in that the letter was dispatched by prepaid post within three working days of the date of the letter to the last residential address provided by the applicant (the applicant does not dispute that it was sent to his last notified residential address).
The applicant is taken therefore to have received the document seven working days after the date of the document, given the provisions of s.494C(4)(a). On this basis, the Tribunal was correct to calculate that the applicant was taken to have received the notice on 30 July 2007, being seven working days after the date of the notice. The Tribunal was also correct that the prescribed period of twenty-one days ended on 20 August 2007, and that as the application for review was not received until 9 October 2007, it did not have jurisdiction in this matter.
The applicant complains that he did not actually receive the letter and that the time of the prescribed period should run from the time of actual, rather than deemed, receipt of the notification. The applicant’s supplementary submissions state that: “the Tribunal failed to comply with the Statutory regime prescribed by the Act.” The applicant, however, has not been able to show that this is the case. The applicant’s submissions seem to ignore the provisions of s.494C(4) in that, relevantly, if the Minister gives a document to a person by the method in subsection 494B(4) (as the Minister did in this case) then the person (in this case, the applicant) is taken to have received the document seven working days after the date of the document. That the applicant says that he did not actually receive the notification in time to have made the application within the prescribed period, as stated by the Tribunal, and even his evidence that both the delegate and the Tribunal “knew” that the letter had not been delivered to him, does not assist him in these circumstances.
Given the provisions of s.494C, the applicant is “taken to have received” the letter notifying him of the delegate’s decision seven working days after the date of the document. This is, as was found by Spender J in Murphy (see [69]), “without qualification.” His Honour also stated:
“There is nothing to indicate that the effect of the subsection [s.494C(4)] is to be read as if there was a proviso that the person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only ‘until the contrary is proved.’”
I note further that in Murphy at [55]:
“The present case is a case where the documents were returned undelivered to DIMIA, and at the time when the delegate of the Minister posted the documents, she knew that neither the address at Morayfield nor the address at Caboolture to which the documents were posted was the postal address of Mr Murphy . Further, this is a case where the documents were returned to DIMIA undelivered at a time before the provision deemed service to have been effected.”
In the case currently before the Court, while the applicant gave evidence that the delegate knew that he had not received the letter at the relevant time, at best his evidence was uncertain as to when this was said to have occurred. But whatever the situation, it does not assist the applicant.
Nor is there anything before the Court to show that the delegate’s letter notifying the applicant of the decision to refuse the visa application failed to comply with the requirements of s.66(2). (See the letter at Annexure “A” to the affidavit of Ms Anniwell).
The applicant relies on SZFOV Ors v Minister for Immigration Anor [2006] FMCA 1280 (“SZFOV”) in arguing that he was not contacted by the Minister’s department either by telephone or in writing to be told that either his application had been refused or that the letter of notification had been returned from the post office. The applicant’s evidence, at best, could be understood as that he found out that the letter of notification had been returned to the Department as undeliverable at the end of September, or the beginning of October 2007 (even though the applicant said that he made the telephone call on “31 October 2007”), and was informed that the letter had been returned as undeliverable. There is no evidence before the Court as to when the letter was returned to the Department, even if the Court were to accept the applicant’s evidence that this was what he understood to be the case.
But even in these circumstances, SZFOV does not assist the applicant. SZFOV was a case in which Mr Laba-Sarkis was permitted to address the Court on the applicant’s behalf (see [13]). In that case, the Court had before it a Refugee Review Tribunal decision dated 1 June 1998 and concerning a situation in 1998 involving a letter of invitation to a hearing before the Refugee Review Tribunal, and whether the applicant in that case received that letter. In that case, the Court found that in circumstances where the Tribunal had: “suggested in thereview formthat any telephone number provided would be used to contact the applicant.” That in such circumstances, the absence of evidence of any attempt by the Tribunal to contact the applicant by telephone, as the review application form suggested would occur (see [50] and [48]), was found to be a failure to comply with s.425 of the Act in complying with the obligation to invite the applicant to a hearing.
I understood the applicant’s complaint to be that as in that case, he should have at least received a telephone call from the delegate advising him of the return of the letter notifying him of the decision to refuse the visa.
This case does not assist the applicant in the current circumstances. In SZFOV, the Court was dealing with an invitation to hearing issued by the Refugee Review Tribunal in circumstances where s.422B of the Act was not then in operation, which meant that the principles of procedural fairness at general law were available to the applicant in that case. It was in such a context that the Court found that there had been a denial of procedural fairness in that the Tribunal had suggested to the applicant that the telephone number that had been provided would be used to contact the applicant, presumably in circumstances including some failure of delivery of any communication.
The case currently before the Court presents a situation where the letter notifying the applicant of the decision to refuse him a visa (as found by the Tribunal) complied with the relevant statutory requirements in circumstances where the express statutory provision states that the applicant was “taken to have received” the letter of notification seven working days after the date of the letter. In circumstances as were found in Murphy (at [69]), the relevant “provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification.”
I cannot see, therefore, that the applicant’s complaint that the delegate should have telephoned or should have written to him can assist him in the face of this provision. Nor, for that matter, had any such indication of the possibility of a telephone call had been given to him.
The applicant also seeks to rely on Haddara v Minister for Immigration & Multicultural Affairs [1999] FCA 1319 (“Haddara”), a case which Mr Laba-Sarkis again pressed before the Court in SZFOV (see [13] of SZFOV). Again, Haddara concerned an application before the Refugee Review Tribunal involving the issue of whether the Tribunal had failed to comply with s.425 and 426 of the Act in 1999.
Haddara also does not assist the applicant, as the Court in that case found that relevant procedures in ss.425 and 426 of the Act were “not observed (see Haddara at [20]). That is not the situation in the current case. Relevant statutory and regulatory procedures were observed in relation to the letter of notification, as was in my view, correctly found by the Tribunal.

Conclusion

In all, I cannot see error in the Tribunal’s reasoning, and conclusion, that it did not have jurisdiction in this matter. This application therefore, is dismissed.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: C Darcy

Date: 10 June 2008