SZEDN v Minister for Immigration
[2005] FMCA 106
•31 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEDN v MINISTER FOR IMMIGRATION | [2005] FMCA 106 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.412, 414, 494B, 494C
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994, reg.2.16, 4.31
VOAW v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 251
NACG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 173
SPCB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 26
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZEDN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2480 of 2004 |
| Delivered on: | 31 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 31 January 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The self represented applicant failed to appear.
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2480 of 2004
| SZEDN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made and handed down on 12 July 2004 dismissing the application on the grounds that the Tribunal did not have jurisdiction to review the decision of a delegate of the respondent (“the delegate”) to refuse to grant the applicant a protection (Class XA) visa.
Background
The applicant arrived in Australia from the People’s Republic of China on 21 January 2004 and lodged an application with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) for a protection visa a week later on 28 January 2004. She claimed to fear persecution in China for reason of her religion. In particular, she claimed that she would be arrested under the Anti-Evil Religion Act for conducting Christian activities (Court Book p.25) (“CB”).
On 6 February 2004 the delegate refused to grant the applicant a protection visa. A letter dated 6 February 2004 enclosing notification of that decision under s.66 of the Migration Act 1958 (Cth) (“the Act”) was sent by pre-paid post to the applicant at her address on 9 February 2004 (CB pp.26, 40). The applicant received that letter on 12 February 2004. On 18 March 2004, the applicant, by her migration agent, Mr Meng, lodged an application for review of the delegate’s decision (CB p.41).
On 27 April 2004, the Tribunal wrote to the applicant to inform her that her application for review had been lodged out of time (CB p.45). On 19 May 2004, the Tribunal received a letter from the applicant to say that she had received a refusal letter on 12 February 2004 and another copy of it on 17 February 2004 (CB p.48). On 12 July 2004, the Tribunal decided that it had no jurisdiction to review the delegate’s decision (CB pp.51-55).
The Tribunal’s findings and reasons
The Tribunal found that the review application was received by the Tribunal outside of the mandatory time limit and consequently it was not a valid application and the Tribunal had no jurisdiction to review the delegate’s decision. The Tribunal sets out its reasons as follows:
“In her application for review to the Tribunal on 18 March 2004, the applicant appointed an authorised recipient. On 17 May 2004, the Tribunal received a letter from the applicant’s new authorised recipient, her initial authorised recipient having become an “inactive agent”. Her new authorised recipient advised that the previous authorised recipient had calculated the due date for an application for review on the basis of the applicant receiving notification from the Department on
18 February 2004.
On 19 May 2004, the Tribunal received a written submission from the applicant. She stated that she received her notification from the Department on “about 12 February 2004” and another copy on 17 February 2004. She then met with the person appointed as her initial authorised recipient on 19 February2004. She also states that she had “done everything I needed to lodge my appeal in time” and that her initial authorised recipient “had plenty of time to lodge an appeal to the RRT”.
I have found the Department complied with the requirements of the Act in terms of correctly notifying its decision, and the Act requires that an application for review must be lodged at a registry of the Tribunal within a period not later than 28 days after the notification of the decision: s.412(1)(b) of the Act, r.4.31 of the Regulations. There is no provision for extension of time.” (CB p.54)
Hearing
The applicant is a self represented litigant who failed to attend the hearing. The applicant appeared before me at a directions hearing on 25 August 2004 where she signed Consent Orders regarding the further administration of the matter before this Court. The applicant was provided with clear directions that the matter would be heard on this date in the John Maddison Tower, 88 Goulburn Street, Sydney. She was also provided with a map of the Court location. None of the other orders made that day in relation to the filing of an amended application or written submissions was complied with.
The respondent solicitors wrote to the applicant on 4 January 2005 enclosing by way of service the respondent’s submissions and the additional Court Book pages 40A and 40B. That letter also indicated that the matter would be heard on this date and this time before me at the John Maddison Tower and that the applicant was required to attend on that occasion. There was no appearance of the applicant at the scheduled time. Attempts were made to contact the applicant on the mobile telephone numbers provided however, these were unsuccessful.
The matter was called and attempts were made to locate the applicant outside the Court. However, the applicant did not appear and the matter was proceeded with twenty-five minutes after the scheduled starting time.
Mr J Smith of Counsel, appearing for the respondent, filed written submissions prior to the hearing which set out the regime that the Tribunal was obliged to follow during its review process. This was supported by the relevant authorities.
Respondent’s submissions
The Tribunal refused to review the decision of the delegate because it took the view that there was no valid application for review. This application turns on whether or not the application made to the Tribunal lodged on 18 March 2004 was valid.
Section 414 of the Act provides:
(1)Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.
Section 412 provides:
(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 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).
It was submitted that although there is no definition of a “valid application” in the Act, it is clear that, in order to be valid, an application must be made in accordance with s.412: VOAW v Minister for Immigration and Multicultural and Indigenous Affairs at [4].
Regulation 4.31 of the Migration Regulations 1994 provides:
(1)For the purposes of paragraph 412 (1) (b) of the Act, each period stated in subregulation (2) is prescribed as the period within which an application for review of an RRT-reviewable decision to which the period applies must be given to the Tribunal.
(2)A period mentioned in subregulation (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.
It was submitted that there is a complicated regime governing the notification of decisions made by the respondent and receipt of that notification by an applicant. The first provision is s.66 which provides:
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 provides:
Refusal to grant visa
(3)The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
Section 494B provides:
(4)Another method consists of the Minister dating the document, and then dispatching it:
a.within 3 working days (in the place of dispatch) of the date of the document; and
b.by prepaid post or by other prepaid means; and
c.to:
i)the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
ii)the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.
Section 494C provides:
(4)if the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
a.If the document was dispatched 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.
Counsel submitted that in this case, the applicant provided details of her last residential address (CB p.23). In accordance with the regime set out above, the delegate dated the relevant documents (with the date 6 February 2004) (CB pp.27, 40); and dispatched it by prepaid post within three working days of that date (on 9 February 2004 being the next business day, a Monday) (CB pp.26, 40). It was submitted that by operation of s.494C(4), the applicant was taken to have received the documents on 17 February 2004. This means that, in order to make a valid application, the applicant had to lodge with the Tribunal an application in the approved form by (on or before) 17 March 2004. She did not do so and this application must fail: NACG v Minister for Immigration and Multicultural and Indigenous Affairs at [6] – [7] per Stone J; SPCB v Minister for Immigration and Multicultural and Indigenous Affairs at [7].
Reasons
An application was made for the dismissal of this matter pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 on the basis of default of appearance of a party. However, having reviewed the Tribunal’s decision, the content of the application of that decision, the respondent’s written submissions and the general circumstances of this matter, I believe it appropriate that the matter be heard and ruled upon in respect of the substantive issues. I believe that the ultimate outcome was going to be the same regardless of whether the matter was heard on the day of the hearing or adjourned to a later date or dismissed for non appearance. Had the matter been dismissed summarily it may have given the applicant an opportunity to reapply to this Court seeking to vary or seek aside the order in order to pursue the issue further. I am also aware of my obligations to self represented litigants to determine whether there is any merit in their applications despite their inability to file submissions in support of their application or to give oral presentation: Yo Han Chung v University of Sydney & Ors.
Regretfully, the applicant’s migration agent appears to have ceased business during the preparatory stage of this application and the matter was handed to a new agent whose persistence with this application does not achieve the relief that the applicant seeks. I believe it would be unfair to the applicant to allow this matter to continue in its current form with the ultimate outcome being a dismissal because of the initial invalidity of the application.
The absence of the applicant at the hearing is unexplained. However, I am satisfied that she was provided with clear instructions as to the time, date and place of this hearing which was subsequently reinforced by correspondence from the respondent’s solicitors providing her with their written submissions in response to her application. I also note that attempts were made to contact the applicant on the day of the hearing on the mobile telephone numbers she had provided to the Court as the appropriate contact numbers. A more desirable outcome would have been the appearance of the applicant so that the decision of this Court could be explained to her in person via an interpreter so that she understood the reasons for her application to be denied.
Conclusion
For the reasons set out above, I am satisfied that the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 17 February 2005
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