SZEYR v Minister for Immigration
[2005] FMCA 1344
•22 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEYR v MINISTER FOR IMMIGRATION | [2005] FMCA 1344 |
| MIGRATION – Refugee – natural justice – procedures required by law – failure to exercise jurisdiction – bias. |
| Migration Act 1958, ss.66(1), s.66(2)(a),(c),(d), 347(2)(b), 411(1)(c), 412, 412(1), 414, 494B, 494C Migration Regulations.rr.2.16, 4.10, 4.31 |
| Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629 |
| Applicant: | SZEYR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2313 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 15 September 2005 |
| Date of Last Submission: | 8 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 22 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. J. Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Refugee Review Tribunal to be joined as the second respondent to the proceedings.
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2313 of 2004
| SZEYR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
1st Respondent
REFUGEE REVIEW TRIBUNAL
2nd Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 22 July 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 June 2004 in which the Tribunal determined that it did not have jurisdiction to review the decision of a delegate of the respondent Minister made on 22 October 2003, to refuse a protection visa to the applicant, as the application to the Tribunal was not lodged within the prescribed period for applying for review. The Tribunal is joined as the second respondent in these proceedings.
The applicant as a citizen of the People's Republic of China who arrived in Australia on 13 September 2003 and applied for a protection visa on 10 October 2003. His claims are set out in his application for a protection visa at Court Book 1 to CB 30, particularly in an attached statement at CB 25 to CB 26. His application to the Tribunal is at CB 50 to CB 53. The central issue in this case is the validity of the application made by the applicant for review of the delegate’s decision, and therefore whether the Tribunal had jurisdiction to determine the application. The relevant background is:
1)On 10 October 2003 the applicant applied for a protection visa.
2)On 22 October 2003 a delegate of the first respondent decided to refuse the application for a protection visa (CB 33 to CB 44).
3)The notification of that decision was sent by letter to the applicant dated 22 October 2003 (CB 31 to CB 32) and this enclosed a copy of the decision record (CB 33 to CB 44). The letter was sent by registered post (RP 19237567) to the residential address provided by the applicant to the first respondent's Department in his application for a protection visa (CB 12.6).
4)The letter was returned to the first respondent's Department on
12 November 2003 (CB 45).5)By letter dated 18 November 2003 the applicant notified the first respondent’s Department of a change of address and this was received by the Department on 20 November 2003.
6)On 17 February 2004 the applicant lodged an application for review with the Tribunal (CB 50 to CB 53).
7)On 22 March 2004 the Tribunal wrote to the applicant and advised the applicant that it appeared that the application had reached the Tribunal “too late” and that the Tribunal had no power to consider late applications. The Tribunal also explained that applications to the Tribunal must be made within 28 calendar days of being notified of the delegate’s decision and the Tribunal set out the dates of the relevant events as it saw them:
§The delegate notified the applicant of the decision to refuse the application for a protection visa in a letter dated
22 October 2003.§That letter is taken to have been received within 7 working days after the date of the letter even if in fact it had not been received.
§That the applicant was taken to be notified of the decision on 31 October 2003.
§The last day to apply to the Tribunal was 28 November 2003.
§The Tribunal did not receive the application until
17 February 2004.8)The Tribunal provided an opportunity to the applicant to comment (CB 58).
9)The applicant responded by letter received by the Tribunal on
26 March 2004 (CB 59) in the following terms:“I write to you in confidence, in the hope of being able to enforce my right to a fair hearing via your Tribunal, because of an administrative error in the way the Department regarding my refusal notified me.
If I had not employed the help of an agent to ascertain the progress of my application, I would still be none the wiser to the decision. I never changed my postal address, so how I was not notified in the correct manner is hard to fathom. I believe that the decision should be posted via a registered postal system, thereby requiring my signature to receive its arrival. At no stage did this happen, nor I would imagine the Department would be able to verify that I did so. I clearly did not receive my letter of the refusal, so I therefore ask Tribunal (after investigation) to adjudicate that my right to natural justice has been denied, and order a new hearings please.”
10)On 30 June 2004 the Tribunal decided that it did not have jurisdiction to review the decision. Its decision record is at CB 61 to CB 65.
The Tribunal's reasons for its decision are set out at CB 64.7 to 64.9. The critical findings are:
“The Tribunal finds that the decision notice was sent within
3 working days to the applicant at the correct address, in accordance with s.494B(4) of the Act. Therefore, the applicant is taken to have received the notice on 31 October 2003. This is so even though the letter was returned unclaimed. Therefore, the
28 day period within which the review application must be lodged ended on 28 November 2003. The application for review was not received by the Tribunal until 17 February 2004, after the prescribed period had expired.As the review application was received by the Tribunal outside the mandatory time limit, it is not a valid application and the Tribunal has no jurisdiction to review the delegate’s decision.”
In his application to this Court filed on 22 July 2004 the applicant states the following four grounds of review:
“1. That in making the decision the Tribunal has denied the applicant natural justice.
2. That the procedures required by law was [sic: were] not observed when making the decision.
3. That there is a failure by the Tribunal to exercise jurisdiction.
4. That the Tribunal may appear to be biased towards the applicant.”
The applicant has not filed any amended application giving complete particulars of each ground of review as directed, nor has the applicant filed any written submissions. The applicant appeared before me unrepresented and was assisted by an interpreter in the Mandarin language. He submitted at the hearing before me that he did not receive the letter from the Minister’s Department and therefore missed the opportunity to have his case reviewed.
The respondents were represented by Mr. Potts of Counsel.
The relevant applicable legislation is helpfully set out in full in the written submissions filed by the respondents on 9 September 2005.
A.In relation to notification of the delegate’s decision to refuse the application for a protection visa the relevant parts of the Migration Act and Regulations:
“At the time that the application for a protection visa was made, s66(1) of the Act provided:
“66. (1) 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 relevantly provided at that time:
“2.16. (1) For subsections 66(1) and 501G(3) of the Act (which deal with giving notice of decisions), this regulation sets out the way of notifying a person of a decision to grant or refuse to grant a visa.
…
(3) The Minister must notify an applicant of the decision to refuse to grant a visa by one of the method specified in s.494B of the Act.”
Section 494B of the Act provided:
“494B.(1) For the purposes of the provisions of this Act or the regulations that:
1) require or permit the Minister to give a document to a person (the recipient); and
2) state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.
…
Dispatch by prepaid post or by other prepaid means
(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 of the Act provided:
“494C.(1)This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).
…
Dispatch by prepaid post or by other prepaid means
(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.”
B. The time limit for the application for review to the Tribunal.
“Section 412 of the Migration Act provided:
“412. (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).”
Regulation 4.31 prescribed the relevant time periods, as follows:
“4.31. (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.
Note If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
(3) Subject to this regulation, an application must be lodged at a registry of the Tribunal:
(a) by posting the application to that registry; or
(b) by leaving it at that registry in a box designated for the lodgement of such applications; or
(c) by leaving it with a person employed at that registry and authorised receive such document; or
(d) by means of electronic facsimile transmission to that registry.
(4) An application posted in accordance with paragraph (3)(a) or transmitted in accordance with paragraph (3)(d) is not to be taken to have been lodged until it is received at a registry of the Tribunal.”
The first respondent’s Department advised the applicant of the refusal of the protection visa application by letter dated 22 October 2003, sent by registered post to the latest residential address provided by the applicant to the first respondent’s Department. The letter was sent within 3 working days of the date of the letter (CB 57 - Item 6 shows the letter was sent by registered post dated 22 October 2003). This was required by s.494B(4)(a) of the Act. In accordance with s.494C(4)(a) this letter was deemed to have been received 7 working days after the date of that letter. In the case before me therefore, this was deemed to have been received on 31 October 2003. The actual return of the letter to the Department does not affect the provisions of s.494C as those provisions clearly state that the person is taken to have received the document in this case, 7 working days after the date of the document. Also I note in this case, that the letter deemed to have been received on 31 October 2003 was not returned to first respondent’s Department as undeliverable until 12 November 2003.
In the case before me and on what is set out above the application to the Tribunal needed to be made within the prescribed period ending no later than 28 days after notification of the delegate’s decision. In this case Mr. Potts submits that the notice was deemed to have been received on 31 October 2003 and therefore the time limit for lodging the application for review to the Tribunal expired on 28 November 2003. The application was not lodged until well after, being
17 February 2004. The relevant authorities establish that this prescribed time limit is mandatory: Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629 at [24] (although dealing with the Migration Review Tribunal):“The application to the MRT for review of the delegate’s decision in order to be effective, had to be given to the MRT on or before 15 October 2004: Migration Act s 347(2)(b); Migration Regulations, reg 4.10. Since the application for review was not given to the MRT until 19 October 2004, the application was not made within the prescribed period. It follows that the MRT did not make any error of law when it concluded that it had no jurisdiction to determine the application for review of the delegate’s decision of 15 September 2004.”
There was no power in the Tribunal to extend this time limit and a valid application for review lodged within the prescribed time limit is a clear precondition to the Tribunal having jurisdiction to proceed with the application.
At the hearing before me I raised with Mr. Potts whether the words in s.494B(4)(c), “for the purposes of receiving documents”, are words of limitation such that there needs to be some further consideration beyond simply saying that an address had been provided and the notification of the refusal of the visa application was sent to this address. Mr. Potts’s submission was that it is essentially a question of construction of paragraph (c)(ii) in subsection (4) of s.494B and an interpretation of the evidence as to whether or not the address provided was an address provided for the purposes of receiving documents. In the case before me, clearly, the issue for the Tribunal was to determine whether it had jurisdiction to consider the application for review of the Minister’s delegate’s decision. Pursuant to s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a reviewable decision by the Tribunal. An application for review of a “RRT-reviewable decision” must, as the Tribunal itself recognised in its decision record, pursuant to s.412 of the Act, amongst other things, be given to the Tribunal within the period prescribed, being a period ending not later than
28 days after the notification of the decision under review (s.412(1)(b)). Pursuant to s.414, if a valid application is made under s.412 for review of an RRT-reviewable decision, the Tribunal must review the decision. The issue therefore, in the circumstances before me, was whether the Tribunal was correct in finding that it did not have jurisdiction to review the decision of the delegate of the first respondent because the application for review was made to it outside the 28-day period, after the notification of the decision was taken to have been received by the applicant. The Tribunal found that the relevant decision notice was sent within three working days to the applicant at the correct address, and that as a result the applicant was taken to have received a notice on 31 October 2003. The application for review was not lodged until 17 February 2004, well after the expiry of the 28-day period on 28 November 2003.
The critical issue therefore, in relation to whether the Tribunal had jurisdiction or not turns on, in the circumstances of this case, the notification of the decision. Section 66(1) of the Act provides that when the Minister grants or refuses to grant a visa, that the Minister is to notify the applicant of the decision in the prescribed way. The Minister's letter at CB 31 to CB 32 relevantly meets the other requirements of s.66(2)(a), (c) and (d). Section 66(1) refers to the notification of the decision being done in the prescribed way. Relevantly, Regulation 2.16 set out above, provides that for the purposes of s.66(1) the Minister must notify an applicant of the decision to refuse to grant the visa by one of the methods specified in s.494B of the Act. Relevantly, s.494B(4) provides that one method of such notification is dispatch by prepaid post, as occurred in the case before me, to one of the addresses as set out in s.494B(4)(c)(i) or (ii). That is, the Minister complies with the requirements of the legislation by sending the notice, within the relevant time periods, to either:
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.
The applicant (who is from a non-English speaking background and who appeared unrepresented) now before me appears to be arguing (by inference at least on what he said at the hearing before me and in context of what he said to the Tribunal in writing on 20 March 2004 – CB 59) that he had provided two addresses to the Minister's Department (see the answers to questions 14 and 17 in his application for a protection visa to the Minister's Department reproduced at CB 12). The applicant appears to argue now that he had some expectation that the notification would be sent to his postal address, and that he had not changed his postal address during the relevant period and that the Minister did not send anything to his postal address and thereby failed to notify him of the decision to refuse the application for a protection visa. Mr. Potts submitted that the residential address provided by the applicant to the Minister met the description of a residential address provided to the Minister by the recipient. The issue was, as raised by me with him, whether there was any limitation because of the concluding words, “by the recipient for the purposes of receiving documents”. His submission was:
1)That s.494B(c) contemplates that a residential address can be provided for the purposes of receiving documents.
2)That the legislation contemplates that the address provided for the purposes of receiving documents can be any one of the three types of addresses. The legislation is clearly drafted in the alternative.
3)That the relevant part of the Act contemplates that notwithstanding that the applicant can give other addresses, including an address for service, the alternative expression as between (c)(i) and (c)(ii) means that there can still be an address for service given for the purpose of receiving documents, and a residential address provided to the Minister for the same purpose.
4)That in the case before me, no conclusion can be drawn from the fact that there has been provided both a residential address and a postal address and because of the existence of both of those addresses that an inference can be drawn that there was an intention that only the postal address was provided for receiving documents and that the residential address was not. His argument was that in the case before me there was nothing, that is, there was no limitation in the application from (the vehicle for the conveying of the information) or in the information given, to show that whatever other purpose may have been involved in the provision of the residential address, there was nothing to show that it was not also given for the purposes of receiving documents from the Minister.
I accept Mr. Potts’s submission in this regard. It is clear that the obligation imposed on the Minister by s.66(1) is that the Minister must notify an applicant of the decision in the prescribed way. To the extent that the legislation provides for the dispatch of the notice to any one of possibly three different, alternative addresses provided to the Minister, by the recipient for the purposes of receiving documents, then at least one of the addresses must have been provided by this applicant in the protection visa application for the purposes of receiving documents. This is reinforced by the fact that no other addresses, whether for this or any other purposes were provided by the applicant to the Minister. One at least must have been provided for this purpose of receiving documents. The issue is whether the residential address can be so regarded. One address is a postal address and the other is a residential address. There is nothing to distinguish between the two addresses as to which was provided for the purpose of receiving documents, or that one was not provided for this purpose. I should note that the application form itself (one vehicle used for the giving of information by an applicant to the Minister) is clearly silent in this regard. This compares unfavourably with the Tribunal's form for an application to it, where the question as to where correspondence about the application is to be send is specifically dealt with (in this case see CB 51). The applicant did not, in the case before me, indicated on the application form to the Minister's Department, nor in any other way, whether only one of the addresses provided, was provided for the purposes of receiving documents, and if so, which one. Further, the applicant at the hearing before me after hearing Mr. Potts’s submissions (with the assistance of an interpreter) and the issue that I raised, did not raise any complaint as to the issue of the residential address. His complaint was:
“I really didn’t receive the letter and that is why I missed the opportunity to review my case and for such a long time I haven’t got a work permit. When I am here in Australia I always receive help from a friend. So that is why I really hope government can give me an opportunity. That’s all.”
On the material before me therefore the Tribunal did not have jurisdiction and it was clearly open to the Tribunal to find (CB 64.8) the decision notice was sent within three working days to the applicant at the “correct address” in accordance with s.494B(4) of the Act. The Tribunal's specific reference to that part of the Act shows that it had those provisions in mind, and in the circumstances of its decision record, given that it had set out the relevant provisions comprehensively, found that the residential address was the last residential address provided to the Minister by the recipient for the purposes of receiving documents. The Minister sent the notification, which on the reasoning above was the last residential address provided by the recipient for the purpose of receiving documents. The Tribunal found that, as that was the case, and the notice had been sent in accordance with the relevant legislation, that the applicant was taken to have received notice on 31 October 2003, and that as the application for review was lodged later than that date, this meant that the prescribed period had expired, and as the application was received by the Tribunal outside the mandatory time limit it was not a valid application. The Tribunal did not have jurisdiction to review the delegate’s decision and I can see no error in the Tribunal's reasoning and decision. The application is dismissed.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 22 September 2005
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