SZECC v Minister for Immigration - [2004] FMCA 1031

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZECC v MINISTER FOR IMMIGRATION

[2004] FMCA 1031

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal that the Tribunal does not have the jurisdiction to review a decision not to grant the applicant a protection visa – where application for review received out of time – no provision to extend time – no reviewable error.

Applicant:

SZECC

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG2403 of 2004

Delivered on:

14 December 2004

Delivered at:

Sydney

Hearing date:

14 December 2004

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Mr Beech-Jones

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $4,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2403 of 2004

SZECC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision by the Refugee Review Tribunal that it does not have jurisdiction to review a decision of a delegate of the Minister refusing to grant the applicant a protection visa. The applicant is a citizen of the People's Republic of China. He applied for a protection visa on 7 March 2004. He seeks to be declared a refugee and granted the appropriate visa which will allow him to remain in Australia.
He has given an explanation that he had a strong fear of further persecution by the Government of China for the reason that he is a member of the Falun Gong Association. He has given in his application an explanation of his fears and pointed out that some members of Falun Gong had been sent to prison, some had been hurt, some have gone insane and some have died.
A delegate of the Minister reviewed his application for a protection visa. The refusal was by way of a letter dated 8 March. The letter was sent by registered post to the applicant's address at Westmead in New South Wales. The applicant has then made an application for a review of the decision of the Refugee Review Tribunal. The Refugee Review Tribunal received his application on 3 May 2004. The application was dated 30 April 2004. With his application for review the applicant submitted a statement describing why he felt that he should be declared to be a refugee. In the final paragraph of his statement he said:
I know I passed 28 days to apply to RRT. I will mail you more details for the delay reasons.
He accompanied that application with a letter dated 30 April 2004. In paragraph 2 of that letter he explained that he left his address in Westmead on 9 March to go to Canberra. He said he was going to go to Canberra until 24 April. In his letter which was translated into English on his behalf by a Migration Agent, Mr Ruomin Zou, the applicant said that he lived at Westmead in a flat owned by Mr Lee Ping. He goes on to say that Mr Lee Ping gave him the letter from the Department of Immigration and Multicultural and Indigenous Affairs which was a registered letter informing him that his application for a visa had been refused. The applicant said:
Mr Lee Ping gave me the letter from DIMIA it was a refusal letter dated March 8, 2004. Lee told me it was registered letter and he received in on March 15, 2004. As I authorised Mr Zou Ruomin to act for my case I did not realise that DIMIA would send letter to me on March 8, 2004. Mr Zou got my bridging visa on March 17, 2004. When the visa was issued Mr Zou should be advised that my application was refused. Why no one tell him about it? When the officer changed my correspondence address for Mr Zou why no one contact Zou for my application refusal?
The applicant has told the Court today that he does not speak or read English. He said that he was in Canberra when the letter was sent to him. He said today that the migration agent did not look at the letter that was sent to him. He said that the migration agent thought that it was a letter of acknowledgement that is why the migration agent did not look at the letter.
After a long while he opened it, he then said:
It's a rejection.
He said in his experience the department usually did not send you a rejection in your first letter. The applicant told the Court that the migration agent took about one month to open the letter, that was March and he opened the letter in April. By the time the migration agent told the applicant it was already past the closing date for an application to be lodged. He said that he lodged his application through the migration agent. He said that he gave no other address other than that of the migration agent. His reason for that is that he neither speaks nor writes English, from that I infer that there would be no point in sending a letter in English to the applicant as he would not be able to understand it.
Explanation given today differs greatly from the explanation to the Refugee Review Tribunal. Mr Beech-Jones of counsel who appears for the respondent has drawn my attention to a copy of the document submitted to the department along with the application for a protection visa. It is a form 956 which is an authorisation of a person to act and receive communication. A copy of that document appears on page 11 of the court book. In that authorisation the applicant's address is given as the Westmead residential address. It also is clear that a male person was originally nominated as the authorised person. It appears from the form that that person's name and postal address and telephone number have all been obliterated by means of white out or correcting fluid.

I note that the date has been whited out as well.
It is unclear how or by whom the details of the authorised person were whited out. For the respondent Mr Beech-Jones told the Court that he had no evidence of who might have done that except that he was confident that it had not taken place when the document was in the hands of the department. I accept that explanation, as I said at the time why would the department want to alter the form to delete details of the applicant's authorised person.
All that I can infer is that at some stage the applicant had an intention to authorise someone else to receive documents on his behalf. This may well have been the migration agent as the applicant submitted. As I am not able to read the details of the name and address of the person which have been obliterated I cannot say. What is clear is that the form 956, the form of authorisation, is attached to the form of application for a protection visa.
On the same page of the application as the interpreter's declaration a copy of which appears at page 10 of the court book, these words appear:
Complete form 956 on the next page if you're authorising another person to act and receive communication on your behalf.
If there was no intention for anyone else to receive communications on the applicant's behalf there would have been no need to fill in the form 956 at all. For some reason some person changed their mind.
Whichever explanation I accept the end result is the same. The department sent a letter of rejection to the applicant by registered post. They sent that letter to his residential address, the applicant had given his residential address in his application. The applicant did not receive that letter in the sense that he became aware of its contents until the time for lodging an application for review to the Refugee Review Tribunal had passed. I am satisfied that the department complied with the requirements placed upon it to notify the applicant of the refusal of his visa.
Whichever explanation of the delay I accept the answer in each case is that the applicant did not lodge his application for review within 28 days of having been notified of the decision. He acknowledged that the application was out of time when he sent it in.
Section 412 of the Migration Act, subsection 1, makes it clear:
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 period prescribed 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.
There is no provision in s 412 or anywhere else in the legislation for either the Refugee Review Tribunal or the Court to extend that time. When the Tribunal refused to accept the application on the basis that it did not have the jurisdiction to do so, the Tribunal did not make any error. When the Tribunal received the application the time had passed and the Tribunal no longer had a jurisdiction to hear the application.
As there is no reviewable error the application must fail. I dismiss the application.
This is a matter that is appropriate for an order for costs to be made, costs follow the event. The applicant has been wholly unsuccessful. I note that the respondent seeks the sum of $5400 by way of costs on the basis that more work was done than would normally be the case. I am not prepared to set a figure as high as that but in my view it would be appropriate to fix costs in the sum of $4750.
The application is dismissed. The application is to pay the respondent's costs fixed in the sum of $4750. I require a transcript of my reasons for this decision. The application is removed from the list of cases awaiting finalisation.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 10 January 2005