MZAIC v Minister for Immigration
[2015] FCCA 2253
•20 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAIC v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2253 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal – application for Protection (Class XA) visa – application for review not in approved form – tribunal had no jurisdiction – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 347, 347(1), 412, 412(1), 412(1)(a), 496(1) |
| MZZCU v Minister for Immigration [2013] FCCA 1060 SZJDS v Minister for Immigration and Citizenship (2012) 201 FCR 1 |
| Applicant: | MZAIC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1401 of 2014 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 10 June 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 20 August 2015 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Mr Wood |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The name of the Second Respondent be changed to the Administrative Appeals Tribunal.
The Application filed on 11 July 2014 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1401 of 2014
| MZAIC |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant seeks judicial review of a decision by the Second Respondent (‘the Tribunal’) that it did not have jurisdiction in relation to a purported application for review of a decision of a Delegate of the First Respondent (‘the Minister’) to refuse to grant the Applicant a Protection (Class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). The Tribunal found that it did not have jurisdiction because the Applicant’s purported application for review was not made in the approved form as required by s.412(1)(a) of the Act.
The Applicant relies upon his Application filed on 11 July 2014 and Affidavit sworn on 8 July 2014. The grounds of application repeated in the Affidavit of the Applicant are as follows:-
“1. RRT has erred in their decision, as given on 23/6/14. As the RRT has decided that it has no jurisdiction to determine my application. Hence it cannot review the decision of the delegate of the Minister for Immigration and Border Protection.
2. I am self represented and when I applied for a review I got the review form from google. It was unfortunate that the form I got was from the tribunal but was an older version.
3. RRT in its decision has admitted at parra 8 “it is extremely regrettable that the use of incorrect form was not identified until after the time in which to lodge a valid review application had passed”.
4. It was not the applicant[‘s] fault, as the tribunal accepted the application and only notified the applicant (me) after the due date to lodge review application was passed.
5. I even send them a written response explaining the matter but they chose to decide not to review my application.
6. It is a miscarriage of justice as the review means life and death for me, and it is of great importance that I get this review.
7. I am on a protection visa and need the review of my protection claim.
8. The tribunal has erred in this decision not to review the (sic) my application.
9. The tribunal even admit in their decision that the use of incorrect form have been through no fault of the applicant.
10. There is a procedural fairness issue, as the tribunal ought to have notified me within the time frame, there decision to notify me after the time of lodgement has passed is unjust, unfair and constitute an error of law.
The Applicant also relies upon Written Submissions filed by him on 17 December 2014.
The First Respondent filed a Response on 24 July 2014. He consented to the application to show cause and to the listing of the matter for final hearing. Otherwise the First Respondent opposed the substantive application and sought costs in the event of dismissal of the Application.
There is before the Court in evidence the material contained in the Court Book. The First Respondent also filed Written Submissions on 27 May 2015.
History
The Applicant was born on 11 November 1987 in India. He is aged 27 years. He was a member of the Sikh community in India. He speaks English, Hindi and Punjabi. He entered Australia on 30 December 2006 on his own passport and as the holder of a Class TU Subclass 572 (Student) visa. On 21 March 2007 he was granted another student visa that was valid until 20 June 2009. He has not held a substantive visa since this date, although he has applied for, and has been declined, ultimately after review processes, and on 14 March 2013, a further student visa. The Applicant also in the period of time leading up to the lodgement of his application for a Class XA (Protection) visa, lodged an application for a Class VC Subclass 457 (Temporary Work) visa and Class UB Subclass 602 (Medical Treatment) visa. The second was refused by a Delegate of the Minister with such decision affirmed on review by the Migration Review Tribunal (as it then was) and the first withdrawn by the Applicant after a denied request for Ministerial Intervention. The Applicant married in Melbourne on the 27 January 2013. On 20 December 2013 he lodged an application for a Protection (Class XA) visa.
The Delegate’s decision
A Delegate of the Minister refused to grant the Applicant a Protection (Class XA) visa because she found the Applicant not to be credible or genuine.
The Delegate summarised the Applicant’s claims to be as follows:-
“The applicant’s written claims are on Department of Immigration and Border Protection (department) file CLF2013/12259 folios 16-19. The claims may be summarised as follows:
·He is a Sikh from the Punjab.
·He was an activist with the Indian National Congress.
·The Khalistan movement opposed his activities and repeatedly kidnapped and beat him.
·His family sent him to Australia because of the risk to his life.”[1]
[1] Court Book filed on 10 October 2014 at [50].
The Applicant failed to attend an interview with the Department. He made no claim to fear harm on return to India in his request for Ministerial Intervention on 15 April 2013 despite his claim that he was persecuted in India prior to his arrival in Australia. He made no claim for protection in Australia for over seven years. The Delegate found in relation thereto:-
“I find that the applicant’s delay in submitting a Protection visa application raises serious concerns about the immediacy, gravity and credibility of his claims to fear harm in India. There is nothing in the information submitted to indicate any circumstances which would have prevented the applicant from seeking protection in Australia at an earlier time.
The delay indicates that on the occasion of the applicant arriving in Australia on 30 December 2006, he did not have a genuine fear for his safety. Furthermore, there is no country information that suggests that circumstances have changed in the applicant’s home country such that a well-founded fear of harm now exists for the applicant. It is far more probable, given the circumstances of this application, and its claims, that the applicant has now sought to make an application for a Protection visa, not out of genuine fear of persecution in India, but in order to prolong his stay in Australia.”[2]
[2] Ibid at [51].
The Delegate concluded:-
“Having considered his visa application, migration history in Australia, lack of details in his claims and lack of documentary evidence, it is far more probable, that the applicant only applied for a Protection Visa in a last bid attempt to remain in Australia. The serious deficiencies in the applicant’s claims lead me to reach a positive state of disbelief in relation to the applicant’s overall case.”[3]
[3] Ibid at [52].
On 1 April 2015 the Applicant was notified in writing of the refusal of his application for a Protection (Class XA) visa.
The Delegate’s notification letter indicated that the Applicant had a right to apply for review of the Delegate’s decision. Under the heading ‘Lodging an application for review’, the letter stated:
“Further information about merits review is… available from the RRT on the Tribunal website at and in the enclosed brochure R10 – Refugee Review Tribunal.”[4]
In the enclosed brochure R10 – Refugee Review Tribunal, the following was relevantly stated:
“How do I apply to the tribunal for review?
You must complete form R1 Application for review to the Refugee Review Tribunal. You can get this form from one of the tribunal offices (registries) or print a copy from the tribunal website.
…
What happens after I lodge my application for review?
The tribunal will send you a letter confirming that it has received your application and invite you to send any documents, information or other evidence you want the tribunal to consider.
The tribunal will ask the department to send us its documents relating to your case. The tribunal will also assess the validity of your application. The tribunal can only review a decision if a valid application for review has been made. The tribunal will advise you if it appears that your application may not be valid”. [5]
[4] Letter from the Department of Immigration and Border Protection to Harminder Singh dated 1 April 2014.
[5] Refugee Review Tribunal – The Review Process [R10] (undated).
The application for review
As accurately summarised in the First Respondent’s submissions:-
a)on 24 April 2014, the Applicant purported to apply to the Tribunal for review of the Delegate’s decision. The Applicant did so using a form which was marked ‘R1 (Design date 06/12)’;
b)on 1 May 2014, a Tribunal officer acknowledged that the Tribunal had received the Applicant’s purported application. However – contrary to the Applicant’s assertion – the Tribunal did not ‘accept the application’. Rather, the Tribunal officer’s letter indicated that the Tribunal would consider whether the application was valid, but that the Tribunal had not done so yet. The Tribunal officer stated:
“Please note that the validity of your application has not yet been assessed. The Tribunal can only review a decision if a valid application for review has been made out. You will be advised if it appears that your application may not be valid”[6];
c)the Tribunal’s ‘acknowledgement letter’ also indicated to the Applicant that it was important that, if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible;
d)on 8 May 2014, the Tribunal officer wrote again to the Applicant. The Tribunal officer relevantly stated:
“I am of the view that your application is not a valid application as it was not made in the approved form. The approved form in this case is Form R1 – RRT application form design dated 03/14, the form you provided to the tribunal has a design date of 06/12. However, this is matter which must be determined by a tribunal member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, within 14 days of receiving this invitation… Your application, with any comments you make, will then be referred to a Tribunal Member to make a decision on your application. If the Tribunal Member decides that you have not made a valid application, you will be given a written statement of decision and reasons”[7];
e)on 16 May 2014, the Applicant wrote to the Tribunal. He explained that he ‘downloaded’ the form from ‘the internet’. He also stated ‘[t]here were no instructions on the internet page that these forms were no longer in use’; [t]he applicant to the best of his knowledge sent the R1 forms as they were available’. The Applicant suggested that he ‘should be given the benefit of the doubt’, and that he ‘is entitled to the mercy and sympathy’ of the Tribunal.
[6] Letter from the Refugee Review Tribunal to Mr Harminder Singh dated 1 May 2014.
[7] Letter from the Refugee Review Tribunal to Mr Harminder Singh dated 8 May 2014.
The Tribunal Decision
I set out the decision in its entirety here as it is brief and relevant throughout to the Application before the Court.
1. “An application has been lodged for review of a decision of a delegate of the Minister for Immigration and Border Protection (the Minister), dated 1 April 2014, to refuse to grant a protection visa under s.65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the tribunal on 24 April 2014. For the following reasons, I have found that the tribunal has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.
2. An application for review of an RRT-reviewable decision must be in the approved form: s.412(1)(a). The expression ‘approved form’ is defined in s.5 of the Act as a form approved by the Minister in writing. Under s.495 of the Act, the Minister may, in writing, approve a form for the purposes of a provision in the Act in which the expression ‘approved form’ is used. The power to approve forms has been delegated to the Principal Member in accordance with s.496 of the Act.
3. There is no scope for partial or substantial compliance with the requirements to use the approved form, so if the applicant uses the wrong form altogether, there is no valid application: see SZJDS v MIAC (2012) 201 FCR 1 at [34] and [63]. However, where a superseded version of the correct form has been used, the precise terms of the Principal Member’s instruments of approval may be relevant to whether a superseded form can be accepted as valid: MZZCU v MIMAC [2013] FCCA 1060 at [3] (upheld on appeal: MZZCU v MIBP [2013] FCA 1178).
4. The approved form at the time the review application was lodged were the July 2013 and March 2014 versions of Form R1. The date of the form used by the applicants is identifiable from the footer where it reads Design date 06/12, indicating June 2012. According to the Principal Member instrument dated 30 January 2014, the June 2012 form used by the applicants ceased to be an approved form after 30 June 2014.
5. The applicant was invited to comment on the issue of jurisdiction by letter dated 8 May 2014. In his response received 16 May 2014, he stated that he had downloaded the form from the “internet” and that information he had read on the form suggested the form was valid.
6. It is not clear from the applicant’s response which website he accessed to obtain the form he used to lodge the application for review. In any event, it does not change the fact that a superseded version of the form was used, even if it may have been through no fault of the applicant. I therefore find that the purported application in this case was not made on an approved form for the purposes of s.412(1)(a).
7. The material before me indicates that the applicant was notified of the decision by letter dated 1 April 2014 and dispatched by post. I am satisfied that the applicant was notified of the decision in accordance with the statutory requirements. Following s.412(1)(b) of the Act and r.4.31 of the Migration Regulations 1994 (Cth), an application for review of this decision had to be made within 28 days after the applicant was notified of the decision in accordance with the statutory requirements.
8. I find that following s.494C of the Act, the applicant is taken to have been notified of the decision on 10 April 2014, seven working days after the decision was sent to him. Therefore the prescribed period within which the review application could be made ended on 8 May 2014. While it is extremely regrettable that the use of the incorrect form was not identified until after the time in which to lodge a valid review application had passed, the tribunal has no discretion to extend time.
9. As the application for review was not made using the approved form for the purpose of s.412(1)(a), it follows that the application for review was not made in accordance with the relevant legislation and the tribunal has no jurisdiction in this matter.
DECISION
10. The tribunal does not have jurisdiction in this matter.”[8]
[8] Refugee Review Tribunal Decision Record dated 23 June 2014.
Consideration
The questions for this Court are:-
a)Did the Applicant use the wrong form?
b)If yes to a) above, did the Tribunal have any ability to determine this matter other than in the manner it did?
The Court finds the answer to a) above is in the affirmative and on a consideration of b) finds the answer to be in the negative because at that date, the 23 June 2014 (being the date of the decision of the Tribunal) the validity requirement under s.412 of the Act, which is that an application for review is made within 28 days, was incapable of being complied with.
Section 412(1)(a) of the Act provides that an application for review of an ‘RRT reviewable decision’ must be made in the ‘approved form’. Section 5(1) of the Act provides that the expression ‘approved form’, when used in a provision of the Act, means ‘a form approved by the Minister in writing for the purposes of that provision.’ Section 495 confers power on the Minister to approve a form for the purposes of a provision of the Act in which the expression ‘approved form’ is used.
Section 496(1) of the Act permits the Minister to delegate his powers under the Act, including the power to approve forms, to another person. The Minister has delegated his power to approve a form for the purposes of s.412(1)(a) of the Act to the Principal Member of the Tribunal.
On 30 January 2014, the Principal Member of the Tribunal:
a)revoked all previous approvals of forms for the purposes of s.412 of the Act; and
b)approved form ‘R1’ designed in July 2013 as an approved form to make an application for review to the Tribunal under s.412 of the Act,
with effect on and from 31 January 2014.
On 11 March 2014, the Principal Member of the Tribunal:
a)Approved form ‘R1’ designed in March 2014 as an approved form to make an application for review to the Tribunal under s.412 of the Act; and
b)Agreed that form ‘R1’ designed in July 2013 would continue to be accepted up to 30 June 2014,
with effect on and from 12 March 2014.
Accordingly, as at 24 April 2014 – when the Applicant purported to make an application for review of the Delegate’s decision – the form ‘R1’ designed in June 2012 was not an ‘approved form’.
In SZJDS v Minister for Immigration and Citizenship (2012) 201 FCR 1 (‘SZJDS’), the Full Court of the Federal Court held that it is ‘essential’ that an Applicant uses the approved form in making an application for review to the Migration Review Tribunal under s.347(1) of the Act.[9] In particular, the Full Court explained:
[33]: “The purpose of s 347(1)(a) requiring an application for review to ‘be made in the approved form’ is so that the Tribunal can identify whether s 348(1) has been engaged. That requires the Tribunal to review an MRT – reviewable decision ‘if an application for review is properly made under s[…] 347’. Given the use of mandatory language in s 347(1)(a), a failure to use the approved form is a failure ‘properly’ to make an application so as to engage the jurisdiction of the Tribunal…”
The Court notes s.347(1) of the Act (which related to the Migration Review Tribunal) corresponded to s.412(1) of the Act (which related to the Refugee Review Tribunal).
[9] SZJDS v Minister for Immigration and Citizenship (2012) 201 FCR 1 at [26], [30]-[34].
In MZZCU v Minister for Immigration [2013] FCCA 1060, this Court applied SZJDS and held:
[8]:“At the time that [the applicant] submitted his Application, the form used by the Applicant was not the approved Form. Section 412(1)(a) of the Migration Act 1958 … provides a precondition for the Tribunal to exercise any power to review a decision by a delegate of the Minister, is that the application for review be on the approved form. The form used by the Applicant did not have that status. Either the approved form was submitted or it was not. The Tribunal had no capacity to treat the form used as if it was an approved form. It had no jurisdiction in the matter. The Tribunal could only deal with a valid application. As the application could only be valid if it was made on the approved form, the Tribunal had no jurisdiction to deal with the Application.”
[9]: There was no discretion to be exercised; the Tribunal was bound by the statue to dismiss the Application as incompetent.
The circumstances in which an applicant uses an incorrect form include, of course, circumstances where an applicant uses an ‘outdated’ form (i.e., a form that used to be, but is no longer, an approved form).[10]
[10] MZZCU v Minster for Immigration [2013] FCCA 1060; Hassan v Minister for Immigration [2013] FCCA 1917; Ali v Minister for Immigration [201] FCCA 369 at [9].
As submitted by the First Respondent’s Counsel it follows from the analysis above that the Tribunal made no error in concluding that it had no jurisdiction in relation to the matter. Indeed, that was the only conclusion open to the Tribunal. Acceptance of that proposition is sufficient to dispose of the present application for judicial review of this Court.
The Applicant’s suggestion that the Tribunal failed to afford him ‘procedural fairness’ with respect to its assessment of the validity of his purported application for review of the Delegate’s decision has no merit. When the Tribunal officer wrote to the applicant on 8 May 2014 and advised him of her ‘view’ that the purported application was invalid on the basis that it was made using the wrong form, the Tribunal did more than it could have been required to do in accordance with ‘common law’ procedural fairness. Further the Tribunal is under no obligation to determine an application for review (including to determine the validity of an application for review) within any particular timeframe – let alone before the period 28 days within which the Applicant is entitled to make an application for review of the Delegate’s decision.[11] The code of natural justice as set out in Part 7 , Division 4 of the Act is inapplicable. No power is being exercised by the Tribunal. No issues of procedural fairness arise.
[11] NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470.
The Application will be dismissed with costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 20 August 2015
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