SZBMF v Minister for Immigration

[2005] FMCA 925

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBMF v MINISTER FOR IMMIGRATION [2005] FMCA 925

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious and political persecution in India – application to RRT made out of time – RRT found it had no jurisdiction – no reviewable error found – judicial review application dismissed.

Migration Act 1958 (Cth), ss.65, 66, 412, 424A, 425, 494B, 494C, 494D
Migration Regulations

Fernandez v Minister for Immigration [2000] FCA 324
Minister for Immigration v Singh [2000] FCA 377
MZNAX v Minister for Immigration [2004] FCA 1126
MZNAW v Minister for Immigration [2004] FMCA 213
SZCTH v Minister for Immigration (No 1) [2004] FMCA 211
SZCTH v Minister for Immigration (No 2) [2004] FMCA 284

Applicant: SZBMF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1948 of 2003

Judgment of: Driver FM

Hearing date: 21 June 2005

Delivered at: Sydney

Delivered on: 21 June 2005

REPRESENTATION

Counsel for the Applicant: Mr A B Slattery

Solicitors for the Respondent: Ms S Burnett
Clayton Utz

ORDERS

1. The Court directs that the name of the applicant is not to appear on the transcript of proceedings.

2. The application is dismissed.

3. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1948 of 2003

SZBMF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 4 September 2003.  The RRT decided that it did not have jurisdiction to review the decision of the delegate sought to be reviewed before the RRT.  The decision of the delegate was to refuse the applicant a protection visa.  Relevant background facts are set out in the respondent's written submissions.  I adopt as background paragraphs 1-7 of those written submissions:

   The applicant seeks to have reviewed in this Court a decision of the RRT made on 4 September 2003 and handed down on 11 September 2003, determining that it had no power to consider the applicant's application for review of a decision of the respondent's delegate made on 27 February 2003 to refuse the applicant a protection visa.

   The Applicant is a citizen on India.   He arrived in Australia on 6 February 2003 and lodged an application for a protection (class XA) visa on 10 February 2003.   He claimed to fear persecution by reason of his religion and political opinion.

   The applicant claimed that as a Muslim he was deprived of basic rights.  He claimed that if there was any religious problem in India the police arrested him and sent him to gaol and asked him to attend at the police station twice a week.  The applicant also claimed to have been tortured by the "Q Branch Police", to have had false cases made against him and to have been sent to a special prison but later released on conditional bail.  The applicant claims that if he returns to India the torture will be a never-ending story and he will ultimately be killed by the police.

   In considering the applicant's claims, the Minister's delegate noted that the applicant presented very vague and non-specific claims and having regard to the manner in which the applicant travelled to Australia (a sub-class 420 Entertainment visa) the applicant had not established any reason why anyone would target him in India.  The Minister's delegate stated the absence of any political or religious activities on the applicant's part and the type of visa he obtained to travel to Australia were matters which contradicted his claims.  The Minister's delegate found that the applicant did not have a real chance of Convention based persecution if he returned to India and that his fear of persecution on return was not well-founded.

   The RRT's decision

   The RRT noted that it had before it the Department's file, including the protection visa application, the letter notifying the applicant of the delegate's decision and the decision record. It was satisfied that the contents of the delegate's decision dated 27 February 2004 complied with the requirements of section 65(2) of the Migration Act 1958 (Cth) ("the Migration Act").

   The RRT noted that the Departmental file indicated that the applicant had not authorised any recipient on his behalf as per section 494D of the Act and that the delegate's decision was sent on 27 February 2003 by registered mail to the applicant's residential address as provided by the applicant to the Minister. It further noted that the letter was returned to the Department unclaimed.

   The RRT found that:

   a)the delegate's decision was sent within 3 working days to the applicant at the correct address and therefore the applicant was taken to have received the notice on 11 March 2003 even though the letter was returned unclaimed to the Department.

   b)the applicant was properly notified in accordance with the requirements of section 494B of the Act;

   c)the 28 day period within which the review application must be lodged ended on 8 April 2003; 

   d)the application for review was not received by the RRT until 27 May 2003.  Accordingly, it was received after the prescribed period had expired;  

   e)as the review application was received by the RRT outside the mandatory time limit, it was not a valid application and the RRT had no jurisdiction to review the delegate's decision.

2. Mr Slattery, for the applicant, presented today an amended application which was filed in Court by leave. In that amended application, the following ground review is advanced, namely, that there was a constructive failure by the RRT to exercise its jurisdiction by providing a wrong answer to the question of law leading to a failure to consider a relevant consideration and a denial of procedural fairness. The particulars are that, first, the applicant failed to lodge an application for review within the statutory period. Secondly, the RRT held that it had no jurisdiction to review an application outside that period, as it would not be a valid application. Thirdly, the RRT held that the prescribed period was mandatory. Fourthly, Parliament, under the Constitution, intended a valid application to be made outside the statutory period if fairness required it. Next, notification was not actually received, due to no fault of the applicant. Further, a third party by innocent mistake prevented actual, as opposed to the legal fiction of notice, occurring by declaring that the intended recipient of the letter was not known at the address of the applicant, although he was previously. Next, the applicant inquired as to the outcome of his application upon developing a concern as to the length of time the decision was taking to be made. Finally, the RRT failed to consider, if fairness required, that the application be deemed valid, despite being lodged outside the prescribed period, and so decided a question of law wrongly and subsequently did not exercise its jurisdiction to review the decision.

3. Mr Slattery also presented written submissions on 20 June 2005 and by leave in Court this morning.  He also made oral submissions.  The substance of those submissions is that the RRT erred in failing to find that it had the power to permit the application before it to be heard by reference to the actual rather than the deemed notification of the delegate's decision, and further that it was procedurally unfair for the RRT to deny the applicant his opportunity for a hearing.  The application is supported by the affidavit of the applicant, filed in Court by leave today.  In that affidavit, the applicant states that at the time of the delegate's decision, and when he lodged his application for a protection visa, he was living at 72 Harrow Road, Auburn.  A friend had arranged his tenancy at that address.  He did not know any of the other persons living there prior to living there.  He had been living there less than a month when the notice must have been sent to him. 

   
   

   A receipt was sent to the address intended to inform him that the notice of the decision to refuse his application was sent to that address when he was not at home or asleep.  The applicant says he does night shift work.  The applicant says that he did not know the people very well and they did not know him very well.  When the receipt arrived no one informed him that it was there.  He believed the other residents thought it was for someone else.  There had been a previous person at the address who was also known by the same first name.  The applicant did not know that person.  When he went to the post office to pick up the notice it had been sent back to the Minister's department.

4. The Minister's written submissions set out the relevant provisions of the Migration Act and Regulations and I adopt, for the purposes of identifying those provisions, paragraphs 11-17 of the Minister's written submissions:

   Section 412(1)(b) of the Act provides that:

   (1)an application for review of an RRT - 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 28 days after the notification of the decision; and

   (c)be accompanied by the prescribed fee (if any)."

   Regulation 4.31(1) of the Migration Regulations (the "Regulations") prescribes the period for the purposes of paragraph 412(1)(b) of the Act.  Regulation 4.31(2) provides that a period mentioned in sub‑regulation (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.

   Section 66(1) of the Act provides that 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.

   Regulation 2.16 (1) of the Regulations provides that for sub-section 66(1) of the Act the way for notifying a person of the decision to grant or to refuse the grant of a visa is set out in that regulation.

   Regulation 2.16(3) provides that the Minister must notify an application of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.

   Relevantly, section 494B(4) of the Act provides that the Minister may notify an applicant of a decision by dating the document and despatching it:

   (a)within 3 working days (in the place of despatch) of the date of the document and by pre-paid post or by other pre-paid means; and

   (b)to the last address of service provided to the Minister by the recipient for the purposes of receiving documents or the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents. 

   Section 494C(4) of the Act provides that if the Minister gives a document to a person by the method in sub-section 494B(4), the person is taken to have received the document:

   (a)if the document was despatched from a place in Australia to an address in Australia - 7 working days (in the place of that address) after the date of the document; or

   (b)in any other case - 21 days after the date of the document.

5. In paragraphs 18 to 21 the Minister submits that the applicant did not lodge an application to the RRT within the prescribed period and the RRT has no jurisdiction to extend that period, and that accordingly the RRT was correct in determining it lacked jurisdiction to entertain the application before it.

6. There is no doubt that s.412 of the Migration Act establishes a 28 day time limit for applications to the RRT that the RRT cannot extend. Numerous decisions of this Court, the Federal Court and the High Court have endorsed that proposition. In particular, the Full Federal Court accepted that proposition unequivocally in Fernandez v Minister for Immigration [2000] FCA 324. Mr Slattery submits that that decision is wrong and I should not follow it. However, I am bound by it. I find that the RRT had no discretion to extend the period for applications to the RRT established by s.412.

7. A related question, on which the available authority appears to be more sparse, is the question whether the RRT has any jurisdiction to depart from the deemed period of notification in s.494C of the Migration Act. In particular, Mr Slattery submits that it was open to the RRT to depart from the deemed period of notification established by s.494C(4)(a) of the Migration Act and to apply a longer period. There is no judicial authority available to me to support that proposition. The decision of Ryan J in MZNAX v Minister for Immigration [2004] FCA 1126 at paragraph 4 appears to be against it. The notification period formerly established by regulation is now contained in ss.494B and 494C of the Migration Act.

8. In my own decision in SZCTH v Minister for Immigration (No 1) [2004] FMCA 211 I proceeded on the basis that there was no power to depart from the periods of notification and appeal established by the Act. I note that another decision of this Court in MZNAW v Minister for Immigration [2004] FMCA 213 appears to proceed on the same basis, in particular, by reference to the decision of the Federal Court in Minister for Immigration v Singh [2000] FCA 377, at paragraph [32].

   
   

   I took the opportunity in SZCTH v Minister for Immigration (No 2) [2004] FMCA 284 at [26] and [27] to draw attention to the unsatisfactory consequences of the inflexibility of the legislation.

9. In its decision on page 61 of the court book the RRT said:

   The Tribunal accepts that the applicant did not receive the letter from the Department advising him of the decision in relation to his application for a protection visa.  However it is satisfied that the applicant was notified in accordance with s494B of the Act, that is, the decision was sent to him by registered post within three working days of the date of the decision to the last residential address provided by him.  Accordingly, the Tribunal is satisfied that the applicant was properly notified, in accordance with the Act.  Therefore as a valid notice was sent to the applicant by correct means, the application is taken to have been notified, whether or not the notice was actually received.

10. In my view, the presiding member was correct in so finding and the RRT had no power to depart from the deemed notification period established by the Migration Act. It follows that there was no jurisdictional error by the RRT in determining that it lacked jurisdiction to entertain the application before it. I also find that there was no procedural unfairness in the decision of the RRT to the extent that general law obligations of procedural fairness or s.424A of the Migration Act required notification of adverse information to the applicant. Any such objection was, in my view, met by the letter sent by the RRT to the applicant dated 2 July 2003. The letter appears at page 52 of the court book.

11. There was no obligation on the RRT to provide a hearing pursuant to s.425 of the Migration Act, once the RRT had determined that it had no jurisdiction to entertain the application to review the delegate's decision. I find that the decision of the RRT is free from jurisdictional error. It follows that the decision is a privative clause decision and I must dismiss the application, and I do so.

12. On the question of costs, the application having been dismissed, Ms Burnett seeks an order for costs fixed in the sum of $3,000.  Mr Slattery did not wish to be heard in opposition to that application. 

    
    

    I am satisfied that the amount of $3,000 has been reasonably and properly incurred on behalf of the Minister in dealing with the application.  I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  29 June 2005