SZBWD v Minister for Immigration - [2005] FMCA 1736

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBWD v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1736

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in India – applicant applying out of time to the RRT – RRT finding it lacked jurisdiction – no reviewable error found – application dismissed.

Migration Act 1958, ss.66, 412, 494B, 494C
Migration Litigation Reform Act 2005 (Cth)
Migration Regulations 1994

SAAP v Minister for Immigration & Anor (2005) 215 ALR 162

Applicant:

SZBWD

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2418 of 2003

Judgment of:

Driver FM

Hearing date:

24 November 2005

Delivered at:

Sydney

Delivered on:

24 November 2005

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Ms L Clegg

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Refugee Review Tribunal is joined as the second respondent to the proceedings.
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2418 of 2003

SZBWD

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application to review a decision of the Refugee Review Tribunal (“the RRT”). That decision was made on 23 October 2003. The decision was notified to the applicant by letter dated 24 October 2003. The RRT decided that it did not have jurisdiction to review the decision of the delegate that was the subject of the review application to the RRT. The reason the RRT found it did not have jurisdiction was that the review application was lodged out of time. I accept as accurate the description of background facts contained in the Minister's written submissions. I adopt for the purposes of this judgment paragraphs 2 to 7 of those written submissions:
The applicant, a citizen of India, applied to the Department of Immigration and Multicultural and Indigenous Affairs (Department) for a protection visa on 23 April 2003.[1] The delegate refused the application on 6 June 2003.[2]
On 6 June 2003 the Department wrote to the applicant informing him that he had been refused the protection visa and that he had 28 days from the notification of the decision to seek a review of the decision[3] (the notification letter).
On 18 July 2003 the RRT received an application for review of the delegate’s decision.[4]
On 3 September 2003 the RRT wrote to the applicant advising him that the application to the RRT had been received out of time.[5] In that letter, the RRT informed the applicant that it had no power to consider the late application, but invited the applicant to write to the RRT if he disagreed with the RRT’s assessment that it did not have such power.[6]
On 23 October 2003 the RRT made a decision that it did not have the power (jurisdiction) to consider the application.[7]
The application for review of the RRT’s decision was filed in the Court on 10 November 2003. An unfiled amended application has been served on the respondent.
[1] court book, page 1
[2] court book, page 45
[3] court book, page 34
[4] court book, page 52
[5] court book, page 61
[6] court book, page 61
[7] court book, pages 72 - 76
I also adopt as factually accurate the chronology and facts contained in paragraphs 11 through to 15 of the Minister's written submissions:
The application for review was received by the RRT two days after the 28 day period for lodgement had expired.[8]
The applicant did not receive the notification letter from the Department. Both the first letter from the Department to the applicant dated 1 May 2003 and the notification letter were returned to the Department as unclaimed: see court book, pages 33a and 43.
In his application for review the applicant explained that his flatmate did not know that the letter was addressed to him because he thought it was for another person with the same name: see court book, page 54.
The applicant later explained in writing an additional error involving the migration agent who had helped him to fill in the application for a protection visa (and presumably the application for review to the RRT)[9] had given the wrong address on the application so that the notification letter was forwarded to 14 Little Albion St, Surry Hills instead of 14A Little Albion St: see court book, page 63.
The applicant provided the RRT with a number of documents supporting the genuineness of his claim not to have received the notification letter, and providing a number of explanations as to why this was the case: see court book, pages 64- 68. This included material demonstrating that Australia Post used a variation of the applicant’s name on the notices of postal items awaiting collection.
[8] The application for review was reviewed on 18 July 2003 whereas the 28 day period for lodgement expired on 16 July 2003 as the applicant was deemed to have received the notification letter on 18 June 2003
[9] See reference to 14 Little Albion Street on application to the RRT
The Minister's written submissions also accurately set out the legislative framework concerning the requirements for a valid application to the RRT. I adopt for the purposes of this judgment, paragraphs 8 to 10 of the Minister's written submissions:
The RRT’s jurisdiction to review a decision of the delegate of the Minister is dependent upon the RRT receiving a valid application.
Section 412(1)(b) provides that the application for review must be given to the RRT within the prescribed period, being a period not later than 28 days after notification. Regulation 4.31 of the Migration Regulations 1994 (Regulations) provides that the period referred to in s412(2) commences when the applicant is notified of the decision and ends 28 days later.[10]
Section 66 of the Act provides that notification of the decision of the delegate must be done in the prescribed way. Section 494B of the Act sets out the methods by which the Minister may give a document to a person. This includes by dispatching the document within 3 working days[11] of the date of the document to the last known address for service or last residential or business address provided to the Minister by the recipient: section 494B(4). Section 494C provides that where a document is dispatched by post in Australia to another address in Australia by the method described in section 494B(4), the person is taken to have received the document within 7 working days of the date of the document.
[10] Other than when the person is in immigration detention, which is not the case here
[11] working day is defined in section 5(1) of the Act to mean any day that is not a Saturday, Sunday or Public Holiday
The RRT decision is summarised in paragraphs 16 to 19 of the Minister's written submissions. I also adopt those paragraphs for the purposes of this judgment:
The RRT set out the legislative framework governing the RRT’s jurisdiction to receive a valid application.
The RRT noted:[12]
a)the contents of the notification letter complied with s.66(2) of the Act;
b)the notification letter was forwarded by the RRT by registered mail on 6 June 2003 to the applicant’s correct address in accordance with section 494B(4) of the Act;
c)the applicant was taken to have received the notice on 18 June 2003;
d)the 28 day expiry period within which the application for review was required to be lodged expired on 16 July 2003; and
e)the application for review was not received by the RRT until 18 July 2003, after the prescribed period had expired.
The RRT considered the explanations and the material submitted by the applicant supporting his claim that he had not received the notification letter.[13]
The RRT found that the Department notified the applicant in accordance with section 494 of the Act. The RRT found that the application was received by the RRT outside the mandatory time limit, and was not a valid application. The RRT concluded that it did not have jurisdiction to review the delegate’s decision.[14]
[12] court book, pages 75.3 – 75.5
[13] court book, page 75.5
[14] court book, pages 75.9 – 76.1
The applicant relies upon his amended application filed on 13 July 2004. Consistently with the decision of the High Court in SAAP v Minister for Immigration& Anor (2005) 215 ALR 162 I will order that the Refugee Review Tribunal be joined as the second respondent to the application. In that application, the applicant points out what he had already told the RRT. That is, that an agent who was assisting him caused the incorrect address to be placed on his protection visa application. The applicant asserts that because of this error he did not receive notification of the delegate's decision in time to permit him to make a valid application to the RRT. In his oral submissions, the applicant also drew to my attention an error made by Australia Post in delivering the registered letter to him containing the notification of the delegate's decision. Australia Post omitted an important part of the applicant's name which he says was necessary for persons living at his home to identify him.
The judicial review application also asserts that the RRT did not properly consider the risk of persecution faced by the applicant. There was, of course, no consideration of that issue by the RRT because of its finding that it lacked jurisdiction.
The judicial review application further asserts that the RRT did not observe the Migration Act properly in making its decision. The applicant also asked me to take into account the humanitarian considerations raised by his case. I explained to the applicant that humanitarian considerations were for the Minister to consider rather than this Court. The inflexible application of jurisdictional time limits in this case appears harsh. However, it is clear that in this case the RRT had no option but to apply those time limits. The court book establishes that notification of the delegate's decision was given by a prescribed manner to the applicant correctly named and sent to the correct address. I say “correct address” in the sense that it was the address identified as the correct address for service on the application for the protection visa.
I reject the assertion that the RRT did not properly apply the Migration Act. By operation of the Act the applicant was deemed to have received notification of the delegate's decision on 18 June 2003. In order to make a valid review application his application needed to reach the RRT by 16 July 2003. The application was not received until 18 July 2003 and the RRT was bound to reject it as invalid.
I have informed the applicant of his rights during the course of the hearing in this matter. He has the option of appealing against my decision dismissing his judicial review application. He also has the option of seeking judicial review of the decision of the delegate if he considers there is a legal error in it. He will lose that option in this Court and the Federal Court on 1 December 2005 on the commencement of the Migration Litigation Reform Act 2005 (Cth). Further, the applicant may invite the Minister to consider whether he should be permitted to make a fresh protection visa application. It is, in my view, important that applicants are given a fair opportunity to have their protection visa claims considered on their merits. That is properly a matter for the Minister to consider.
There is no jurisdictional error in the decision of the RRT. It follows that the decision is a privative clause decision and the judicial review application must be dismissed.
On the question of costs, the judicial review application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $3,500. I accept that costs of that amount have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis. The applicant stated that he would abide by whatever the Court decided on that issue. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, fixed in the sum of $3,500.

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

Associate:

Date: 1 December 2005