MZXGL v Minister for Immigration
[2006] FMCA 1724
•27 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXGL v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1724 |
| MIGRATION – Refugee Review Tribunal – power on review – where exercise of power by original decision maker unauthorised – whether applicants notified of decision – whether notification in accordance with s.66(2) of the Migration Act 1958 – application allowed. |
| Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) |
| Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292 Yilmaz v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 100 FCR 495 at (85) – (88) Minister for Immigration & Multicultural & Indigenous Affairs v AHMED (2005) FCATC 58 at (33) |
| Applicant: | MZXGL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 268 of 2006 |
| Judgment of: | Hartnett FM |
| Hearing date: | 21 July 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 27 November 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Niall |
| Solicitors for the Applicant: | Clothier Anderson & Associates |
| Counsel for the Respondent: | Mr C. Horan |
| Solicitors for the Respondent: | Clayton Utz |
ORDER
That the application is allowed.
That the matter be remitted for rehearing by the Refugee Review Tribunal differently constituted to hear and determine according to law.
That the First Named Respondent pay the costs of the applicant as agreed and failing agreement as determined by the Court upon application made to it, such application to be made by telephone mention to the Chambers of Hartnett FM on (03) 8600 4481.
Certify.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 268 of 2006
| MZXGL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court were two proceedings by way of judicial review, the applicants being sisters of Burmese citizenship, Indo-Korean ethnicity and Christian faith. With the consent of all parties the proceedings were heard together. In each proceeding the applicant sought an order in the nature of mandamus compelling the Refugee Review Tribunal to review a decision of a delegate of the Minister refusing the grant of a protection (Class XA) visa.
On 31 March 2004, the applicants arrived in Australia on tourist Class TR Subclass 676 Tourist (short stay) visas. They were accompanied by their brother. On 5 May 2004, the applicants’ brother lodged a protection visa application which named the applicants as his dependants and the applicants also lodged their own individual protection visa applications. Each of the applicants and their brother claimed a fear of persecution based on their imputed political opinion arising from their activities as supporters of Aung San Suu Kyi as well as their Indo-Korean ethnicity and Christian faith.
Each of the visa applications were filed under cover of a single letter dated 5 May 2004 from Mr Clutterbuck, Solicitor with the Asylum Seeker Resource Centre. As part of the applicants’ brother’s visa application, he had signed a form 956 nominating Mr Clutterbuck as the authorized person to act and receive communication. By letter dated 26 November 2004, a delegate of the first named respondent informed Mr Clutterbuck that the applicants’ claim of dependency on their brother was not accepted. It noted that if Mr Clutterbuck intended to act for the applicants, then a separate form 956 was needed for each of them. Under cover of a letter dated 20 December 2004, Mr Clutterbuck filed separate 956 forms by which each of the applicants nominated him as their authorized person to act and receive communications.
By three separate decisions dated 8 July 2005, the delegate refused to grant protection visas to each of the applicants and their brother.
The delegate informed the applicants of the decisions by way of a single letter to Mr Clutterbuck dated 8 July 2005 and deemed to have been received on 19 July 2005.
On 14 December 2005 the Tribunal made separate, but in essence identical, decisions in respect of the applicants. In each decision the Tribunal held that it did not have jurisdiction to review the decision refusing to grant the applicant a protection visa. This is because the Tribunal found that the letter of 8 July 2005 was a valid notification pursuant to s.66 of the Migration Act 1958 (Cth) “the Act”.
The Tribunal noted that each applicant had provided the name and address of an authorized recipient under s.494D of the Act and that the decision notice was sent by registered mail to the authorized recipient on 8 July 2005 and thus deemed to have been received on
19 July 2005. The Tribunal referred to s.412(1)(b) of the Act and Regulation 4.31(2)(b) of the Migration Regulations 1994 (Cth) (“the regulations”) noting that these provisions provided a 28 day period in which a review application could be lodged – that was up until the
16 August 2005. As the application for review in each case was not received by the Tribunal until 13 October 2005 the application was out of time. The Tribunal concluded that neither it nor the delegate had power to extend the time limit or take action to recommence the time period by, for example, renotifying the applicants of the decision.
The applicants argued that in fact each was not notified until receipt by them from the delegate of separate letters addressed to each individually and dated 10 October 2005 forwarded by registered post to Mr Clutterbuck. That therefore their respective applications for review were within time and that the Tribunal was required to conduct the review under s.414 of the Act. The applicants relied on the notification date of 10 October 2005 because it was on that date and by separate letters to each of them the Department notified the applicants (or renotified as the respondent argues) of the delegate’s decision to refuse the grant of protection visas to each applicant. Under cover of single letter dated 13 October 2005 Mr Clutterbuck filed separate applications for review to the Tribunal.
Section 66 of the Act relevantly 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.
(2)Notification of a decision to refuse an application for a visa must:
(a)if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa – specify that criterion; and
(b)if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa – specify that provision; and
(c)unless subsection (3) applies to the application – give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d)if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500 – state:
(i) that the decision can be reviewed: and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made.
In Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292, Gray J considered s.66 and related provisions and observed
44.All of the provisions of the Migration Act and the Migration Regulations to which I have referred reflect a clear scheme. The scheme is that steps should be taken to notify a person of a decision relevant to that person. The result of those steps is to be a notification. Its effect is that the person is notified of the decision. The time limit for an application to review runs from the time of that notification. The time limit for the expiration of a bridging visa runs from the same time. There is an obvious relationship between the time limits on applications for review and the duration of a bridging visa. The intention of item 010.511(b)(ii) is to keep alive the bridging visa until after the time for making an application for review has expired. Item 010.511(b)(iii) then provides for a further extension of time until 28 days after the notification of the decision of the review authority, or of a subsequent review authority.
45.The evident purpose of the provisions in s.66(2) of the Migration Act is to ensure that the legislative scheme in relation to rights of review of decisions operates fairly. The intention is that not only should an unsuccessful applicant for a visa be told that his or her application has been unsuccessful, but he or she should also be given enough information to pursue the right of review if disposed to do so. That information includes the criterion or criteria that the applicant failed to satisfy, any legislative provision that prevented the grant of a visa, in most cases the reasons why the criterion was not satisfied or the provision prevented the grant of the visa, and the steps required to make an application to review the decision. Without all of this information, an unsuccessful applicant would be disadvantaged in the operation of the scheme, in which the time limits are strict and in which there exists no power, discretionary or otherwise, to enlarge them.
Regulation 2.16 sets out the way of notifying a person of a decision to grant or refuse a visa for the purpose of s.66(1). Regulation 2.16(3) of the Migration Regulations provides that the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s.494B of the Act.
Section 494B provides for the ways by which the Minister may give documents to a person for the purpose of any provision of the Act or Regulations that require or permit the Minister to give a document to a person. Section 494D provides:
Authorised recipient
(1)If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person.
Note: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
(2)It the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.
(3)The first person may vary or withdraw the notice under subsection (2) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person’s authorised recipient.
(4)The Minister may communicate with the first person by means other than giving a document to the first person, provided the Minister gives the authorised recipient notice of the communication.
Consideration
The applications raise questions as to the powers of the Tribunal on merits review. The Tribunal’s statutory function of review “is one that operates upon a decision that was not authorized by law or the statute just as much as it does upon an authorized decision. (See the authorities discussed in Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 at (85) – (88).” (Minister for Immigration and Multicultural and Indigenous Affairs v AHMED (2005) FCATC 58 at (33)).
If the Court determines, as argued by the applicants, that the procedural steps under s.66 provided for by the statute have not been completed then the exercise of power by the delegate was unauthorized resulting in jurisdictional error which forms the decision the subject of review.
The Act and Regulations provide for steps which need to be taken to notify an applicant of a decision relevant to that applicant. The time limit for an application for review of a delegate’s decision and then of a Tribunal decision runs from the time of that notification. Each of the matters required to be done as set out in s.66(2) of the Act is an integral part of notification to an applicant.
The applicants were notified of the decision of the delegate by individual communication to each in the form of a letter dated
10 October 2005. Those letters from the Department constituted notification of the decisions for the purposes of the Act and the Regulations. The applications to the Tribunal, lodged on 13 October 2005 were made within the requisite 28 day period in accordance with the requirements of s.412(1)(b) of the Act and Regulation 4.31(2)(b) of the Regulations. The letter of 8 July 2005 did not constitute a valid notification under the Act because it did not notify each applicant.
The letter dated 8 July 2005 was sent to Mr Clutterbuck and referred to the protection applications lodged by his three clients. It advised
“Your clients have been refused a protection visa…”
but then followed with:
“If your client makes a valid review application within this 28 day period your clients bridging visas remain valid for 28 days after you receive a decision…”.
The use of the singular is confusing especially given the earlier inclusion of the two applicants in these proceedings as the dependants of their brother in his protection visa application. Subsequently the Department forwarded individual letters to each applicant of the
10th October 2005. Other than the fact of the forwarding and receipt of that notification there is no other evidence as to the reason for it being forwarded following the letter of the 8th July 2005. Nor is it referred to by the Department - in its contents – as a “renotification” as now claimed by the first respondent.
Section 66(2)(d)(iii) of the Act requires the notification of decision to state – who can apply for the review. The letter of 8 July 2005 referred to Mr Clutterbuck’s “client” being not a clear indication as to the requirement that each of the three individuals referred to in the joint letter could and indeed were required to each individually make application to the Tribunal for the decision to be reviewed.
The Tribunal did have the statutory power to send the 10 October 2005 notification, (despite the first respondent’s now contention that such was a renotification) as no previous notification had been correctly provided to each of the applicants. There is a practical injustice suffered by each of them to not rectify this error.
In my view, the duty of notification has not been carried out in the letter of 8 July 2005. It was carried out in the letter of 10 October 2005 and the Tribunal was obliged to give effect to that later letter. The initial notification of 8 July 2005 was ineffective being forwarded to the authorised recipient of each of the applicants but in a joint and confusing form which did not comply with each and every of the elements required in s.66(2) of the Act. It did not notify “the applicant of the decision in the prescribed way.” This required a notification in proper form to be given subsequently which was in fact done by the Department.
The application will succeed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Andrea O’Halloran
Date: 27 November 2006
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