SZEWV v Minister for Immigration
[2005] FMCA 1525
•28 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEWV v MINISTER FOR IMMIGRATION | [2005] FMCA 1525 |
| MIGRATION – Review of Refugee Review Tribunal decision – Tribunal did not have jurisdiction to review the decision of the delegate – review application made outside mandatory time limits – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.66(2), 91X, 412, 483A
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994 (Cth), reg.4.31
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZEWV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2134 of 2004 |
| Delivered on: | 28 October 2005 |
| Delivered at: | Sydney |
| Hearing date: | 10 October 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2134 of 2004
| SZEWV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 12 July 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
30 June 2004 that the Tribunal did not have jurisdiction to review the decision of the of the delegate of the respondent (“the delegate”) made on 6 February 2004 declining to grant the applicant a protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZEWV”.
The applicant, who claims to be a citizen of India, arrived in Australia on 6 November 2003 on a Short Stay (Temporary) Business visa. On
4 December 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.3-43) (“CB”). On 6 February 2004 the delegate refused to grant a protection visa. On that date, the Department advised the applicant and his migration agent that his application for a protection visa was refused as he did not meet the criteria to satisfy the requirement of that visa.
A copy of the delegate’s decision setting out the reasons for the refusal was attached to that letter (CB pp.46-52). The letter then set out the applicant’s status in Australia as a consequence of the delegate’s decision. The letter indicated that the applicant had been granted a bridging visa which allowed him to stay in Australia lawfully for a period of 28 calendar days from the date on which he received the delegate’s letter and decision.
The applicant was also advised that he was taken to have received the letter seven (7) working days from the date of the letter. He was further advised that if he made a valid application for review of the delegate’s decision to the Tribunal within the specified 28 day period a bridging visa would be valid until 28 days after he was notified of the final decision of his application to the Tribunal. The applicant’s application for review of the delegate’s decision was received by the Tribunal on 15 April 2004 which was outside the 28 calendar days in which the applicant was required to file his application for review (CB pp.54-57). The last valid day the Tribunal could accept an application for review was 16 March 2004.
The Tribunal’s findings and reasons
The Tribunal found that the review application was received by the Tribunals outside the mandatory time limits and consequently not a valid application. The Tribunal, therefore, had no valid jurisdiction to review the delegate’s decision. The Tribunal was satisfied as to the contents of the delegate’s decision notice and that it complied with the requirements of s.66(2) of the Act. The Tribunal then considered the relevant dates and confirmed the 28 day period in which the review application must be lodged, ended on 16 March 2004 and that the application for review was not received by the Tribunal until 15 April 2004.
After forming the preliminary view that the Tribunal did not have jurisdiction to review the application because it had been received outside the prescribed time limits, the Tribunal wrote to the applicant inviting submissions on this issue (CB p.61). The applicant responded to the invitation suggesting that he had in fact lodged two applications, with the second application being lodged after he had enquired as to why he had not received a response from the Tribunal in respect of his initial filing (CB p.62). The Tribunal had no record of this alleged earlier filing and had only received the one application on 15 April 2004.
As a result of this review process, the Tribunal formed the view the application had been filed outside of the mandatory time limit and was therefore not a valid application and the Tribunal had no jurisdiction to review the delegate’s decision (CB p.63).
Application for review of the Tribunal’s decision
On 12 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 30 March 2005 the applicant filed an amended application which contained the following grounds:
“That the RRT decision was effected to take into account a relevant consideration when it assessed weather the delegate of the Minister raised reasonable grounds for not granting a protection visa.
Particulars
The tribunal did not properly consider in assessing the frame schedule by the Migration Act 1958. I filed my review application within the statutory time limit. Unfortunately the tribunal did not received my review application. I will provide a statutory declaration to support my claim.
I have real chance of persecution and I will be persecute if I return to India, based on the member of a particular social group minority Muslim in India. I was persecuted because of my religious believe. Because of my religious rights as a Muslim I was persecuted by the authority & Hindu extremist. If I persecuted by the authority it is not possible for me relocate any other place in India.
It is a convention base persecution. I did not have documentary evidences to established my persecution. No one help me to collect the document.
I was persecuted because of my political popularity. I refer my claim CB pages no. 0009-0012. It is true I provided a rational or logical foundation for this belief.
The tribunal did not consider my circumstances to consider my review application.
The Tribunal’s satisfaction that I did not file the review application was not based upon reasoning which provided a rational or logical foundation for this belief.
The tribunal did not observe Migration Act 1958 properly to making the decision.
The Tribunal fail consider my documentary evidences with the proper way which the Migration Act 1958 provided in my claims.
I will provide more details to support my judicial review application in my outline of submission.” (Errors included)
Applicant’s submissions
The applicant appeared self represented with the aid of a Tamil interpreter. On 5 October 2005 the applicant filed written submissions addressing a ground that the Tribunal decision was infected by actual bias. Although the structure of the submissions was supported by detailed particulars, it was in fact a general formulaic submission which covered a wide range of issues in relation to that ground. The submissions contained a number of references to recent Court decisions in the migration jurisdiction without any specific reference to this application. The applicant makes reference to legal counsel, with the suggestion that he was not provided assistance from the Pilot RRT Legal Advice Scheme (NSW). The Court file indicated this claim was not correct as a panel adviser was allocated and a conference took place in the presence of a Tamil interpreter on 25 January 2005 and written advice was provided on 28 January 2005.
The applicant’s submissions also raised the issues of bad faith and breach of the rules of natural justice but are completely unparticularised.
Respondent’s submissions
Written submissions were prepared by Mr T Reilly of Counsel and
I adopt paragraphs 1-5 of those submissions for the purpose of this judgment:
The amended application purports to challenge the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 30 June 2004. However the amended application is largely of a template nature that does not engage with the Tribunal’s decision. Contrary to statements in the amended application the Tribunal did not affirm the delegate’s decision refusing the applicant a protection visa, but found that it did not have jurisdiction to review the delegate’s decision.
The Tribunal’s decision explains why it came to this conclusion: the delegate’s decision of 6 February 2004 (RD 46-52) was sent on
6 February 2004 to both the applicant and his authorised recipient: RD 27, 53. It was therefore deemed to have been received by both of them 7 working days thereafter: see s 494C(4) and s 494D(1) and (2) of the Migration Act 1958 (the Act) ie on 17 February 2004. The 28 day time limit in s 412(1)(b) of the Act and reg 2.16 of the Migration Regulations 1994 for the applicant applying to the Tribunal for review therefore commenced on that day and expired on 16 March 2004.The Tribunal records that the applicant’s application for review was not received until 15 April 2004: RD 67 (consistent with the stamp at RD 54). The applicant had claimed that he sent the application on 5 March 2004: RD 62. Even if this is so an application sent by post is not “given” to the Tribunal for the purposes of s 412(1)(b) until it is received by the Tribunal registry: see reg 4.31(iv) and “Vaq” v MIMIA [2002] FCAFC 35 at [9].
The amended application claims that the Tribunal’s decision to this effect was not based upon reasoning which provided a rational or logical foundation, and that the Tribunal did not observe procedures in the Act. In the absence of particulars these claims are meaningless and raise no case to answer.
As there is no jurisdictional error in the Tribunal’s decision it is a “privative clause decision” within s 474 of the Act.
Reasons
I appreciate the practical difficulties with which the applicant is confronted because he is in a foreign country whose language he cannot speak and whose legal system he cannot understand. The applicant has been provided with the grounds and supporting submissions in a template format commonly seen in matters of this type but unfortunately for this applicant are completely irrelevant because the Tribunal did not undertake a review of the delegate’s decision because it formed the view that to undertake such a decision making process was outside its jurisdiction as the review application had been filed outside the mandatory time limits.
Where an applicant is self represented the Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. All of the materials, the grounds and submissions provided by the applicant were done so on the misunderstanding that the Tribunal had made a decision affirming the delegate’s decision to refuse to grant a protection visa. Clearly this was not the case and the Tribunal’s decision was based on a completely different and unrelated issue.
I am satisfied the Tribunal performed the correct decision making process in respect of the relevant dates for lodgment of review applications and ensured they complied with the wording of the Act and the Migration Regulations 1994 (Cth). There is no evidence provided by the applicant to support his contention that he filed an application on two occasions, the first being by mail. This explanation was contained in a letter forwarded to the Tribunal by facsimile transmission but contained no supporting evidence other than a bare assertion of the posting of the earlier application (CB p.62). This letter appeared to have been prepared for the applicant by an unidentified third party as the applicant did not appear to comprehend its significant or the assertion contained when the matter was raised during the hearing.
Conclusion
As the grounds and the submissions in the applicant’s application bore no relation to the issues or the decision made by the Tribunal, the Court has considered whether an arguable case arises on the materials before it. As I have not been able to identify any ground that the Tribunal committed jurisdictional error, the applicant’s claim must 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 sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 28 October 2005
4
1
0