SZEZY v Minister for Immigration
[2005] FMCA 1521
•28 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEZY v MINISTER FOR IMMIGRATION | [2005] FMCA 1521 |
| 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(1), 91X, 412(1)(b), 424A, 494B, 494C, 494D
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994 (Cth), regs.2.16, 4.31
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZEZY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 3027 of 2004 |
| Delivered on: | 28 October 2005 |
| Delivered at: | Sydney |
| Hearing date: | 5 October 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Advocate for the Respondent: | Ms S Burnett |
| Solicitors for the Respondent: | Clayton Utz |
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 sum of $3,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3027 of 2004
| SZEZY |
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 8 October 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
13 September 2004 and handed down on 14 September 2004, declining to review the decision of the delegate of the respondent (“the delegate”) made on 30 September 2002 to refuse to grant the applicant a protection (Class XA) visa on the grounds that the Tribunal had no jurisdiction to review the delegate’s decision. The applicant seeks unstated 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 “SZEZY”.
The applicant, a citizen of the Ukraine, arrived in Australia on
10 October 2001. On 23 November 2001 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.1-28) (“CB”). On 30 September 2002 the delegate refused to grant a protection visa (CB pp.33-52) and on 7 July 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.55-58).
In his original visa application lodged with the Department, the applicant did not provide any substantiating details of the events he claimed constituted persecution, the death threats he received, the physical attacks he claimed he suffered, the ransacking of his house and office and the claims he was being followed. The applicant’s claims were extremely general and he did not provide any detailed explanation of the political opinion he claimed to hold in opposition to the current government in the Ukraine, apart from a statement that he believes his reporting embarrasses the Ukrainian government in regard to its political and commercial relations with Croatia.
The Tribunal’s findings and reasons
A convenient summary of the Tribunal’s findings and reasons are contained in the respondent’s submissions prepared by Ms Burnett and I adopt paragraphs 7-9 as follows:
At pages 2 to 3 of the Tribunal’s reasons for decision, the Tribunal set out the relevant provisions of the Act and Regulations which it considered applied to the decision under review (CB pp.67-68).
The Tribunal noted that:
(a)the Department’s file records indicated that the applicant had given the Minister written notice of the name and address of an authorised recipient under section 494D of the Act (CB pp.25, 69);
(b)the decision notice was sent by registered mail to the authorised recipient on 30 September 2002 (CB pp.33-34, 69);
(c)the decision notice was sent to the applicant at his residential address. The Tribunal noted that the Department’s file contained one change of address lodged with the Department on 7 February 2004 and that it was to this address that the copy of the Department’s letter notifying the applicant of the rejection of his visa application was sent (CB pp.32-33, 69);
(d)the letter addressed to the applicant was returned unclaimed
(CB pp.53, 69);(e)in response to its invitation to comment on the Tribunal’s preliminary view that it did not have jurisdiction, the applicant’s migration agent wrote informing it that the applicant was unable to apply to the Tribunal within the statutory limit due to reasons beyond his control namely, that the applicant’s former migration agent did not notify the Department of the applicant’s new address and further did not notify the applicant of the Department’s decision (CB p.69).
The Tribunal found that:
(a)the decision notice was sent within three working days to the applicant’s authorised recipient in accordance with sections 494B(4) and 494D of the Act;
(b)the applicant was taken to have received the notice on 10 October 2002;
(c)the 28 day period within which the review application must be lodged ended on 7 November 2002;
(d)the application was not received by the Tribunal until 7 July 2004, after the prescribed period had expired; and
(e)the applicant’s application for review was received by the Tribunal outside the mandatory time limit.
The Tribunal noted that there was no provision under either the Act or Regulations for an extension of time in which to lodge an application for review to the Tribunal. Accordingly, it found that the applicant’s application for review was not a valid application and that it had no jurisdiction to review the delegate’s decision (CB pp.59, 70).
Application for review of the Tribunal’s decision
On 8 October 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
(a)The Tribunal breached s.424(A) of the Migration Act because it failed to provide the applicant with relevant information or legislation in relation to issue of jurisdiction.
(b)The Tribunal decided that it had no jurisdiction under s.412 & 414 of the Act to review the applicant’s case. However, it did not give the applicant an opportunity to respond or to comment on information, which would have been a reason or part of the reason not to accept his application.
(c)In addition, the Tribunal did not give any weight to the fact that the applicant was legally represented by a migration agent, who being the applicant’s authorised recipient failed to advice him of the Department’s decision. Hence, the applicant did not apply to the RRT within statutory time limit because of reasons beyond of his control.
(d)Even though there is no provision under the Act for extension of time in which to lodge an application for review with the Tribunal, still the Tribunal had to comply with s.424(A) of the Act. (Errors included)
Legislation
Section 412(1)(b) of the Act and Regulation 4.31 of the Migration Regulations 1994 (Cth) (“the Regulations”) provide that an application for review must be lodged at the Tribunal within 28 days after notification of the delegate’s decision. Section 412(1)(b) of the Act provides that an application for review of a Tribunal reviewable decision must be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision. Regulation 4.31 provides that a period mentioned in paragraph 4.12(1)(b) of the Act commences on the day on which the applicant is notified of the decision to which the application relates and, relevantly, ends with the end of 28 days.
Section 66(1) of the Act provides that when the Minister grants or refuses to grant a visa, she must notify the applicant of the decision in the prescribed way.
Regulation 2.16 of the Regulations provides that for the purposes of s.66(1) of the Act, the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods prescribed in s.494B of the Act.
Section 494B specifies a number of alternative methods for giving a document to a person. One of those methods consists of despatching the document within three working days of the date of the document by prepaid post or other prepaid means to the last residential address notified to the Minister for the purposes of receiving documents: s.494B(4) of the Act.
Section 494C of the Act provides that if a document is given to a person by this method and the document was despatched from a place in Australia to an address in Australia, the person is taken to have received the document seven working days after the date of the document.
Section 494D provides that if the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the applicant.
Applicant’s submissions
On 7 January 2005 the applicant filed a document headed “Particulars (Applicant’s Outline of Submissions)” which contained the following points:
1.The Tribunal decided that it had no power to review the applicant’s application.
2.The decision not to determine the case was based on the fact that the applicant had not applied to it within statutory time limit (i.e. 28 plus 7 days after the decision was made by the delegate of the Minister).
3.The Tribunal made its decision pursuant to s.412 & 414 of the Migration Act 1958.
4.According to s.412 of the Act an application for review of an RRT-reviewable decision must:
a)be made in the approved form;
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).
d)an application for review may only be made by the non-citizen who is the subject of the primary decision.
e)an application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.
5.The Tribunal failed to provide the applicant with relevant information or legislation in relation to issue of jurisdiction.
6.By not providing the applicant with an opportunity to respond or to comment upon information, which would have been a reason or part of the reason not to accept (to refuse) his application for review of the delegate’s decision the Tribunal breached s.424(A) of the Migration Act.
7.The issue is relevant, because it appears that the applicant is not affected by paragraph ‘b’ of s.412 of the Act set out above as the applicant was not notified by the delegate’s decision.”
Respondent’s submissions
Ms S Burnett, Solicitor appearing for the respondent, indicated that the respondent relied on the written submissions filed on 28 September 2005. In respect of those submissions, I adopt paragraphs 12-19 for the purpose of this judgment:
Grounds outlined at paragraphs [6] (a), (b) and (d) above are essentially the same ground of review.
The Minister despatched the decision refusing the applicant’s application for a protection visa by registered post to the applicant at the last address for service nominated by the applicant namely, [address] (CB pp.32-33). That document was dated 30 September 2002.
Accordingly, pursuant to section 494C(4) of the Act the Minister is taken to have notified the applicant of the decision on 10 October 2002. In accordance with Regulation 4.31 of the Regulations the time for lodgement of the application for review with the Tribunal expired on
7 November 2002.The applicant’s application to the Tribunal was lodged on 7 July 2004 (CB p.55) and, as acknowledged by the applicant, was not filed within the prescribed period.
Section 412(1)(b) is mandatory. An application for review of a “RRT – reviewable decision” must be given to the Tribunal within the period prescribed. The Act does not provide the Tribunal with a discretion to accept an application filed outside of the prescribed period. The obligation (and the entitlement) of the Tribunal to review a decision of the Minister’s delegate refusing to grant a protection visa is subject to a valid application being made under section 412 of the Act. The language of section 412 of the Act is clear and unambiguous and effect must be given to it. As there was no valid application made the Tribunal correctly concluded that it lacked jurisdiction to determine the application: see NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 487.
Section 414(1) of the Act clearly provides that “if a valid application is made under section 412 for review of a Tribunal – reviewable decision, the Tribunal must review the decision”. However, once the Tribunal has determined that it has no jurisdiction to entertain an application for review, because the application has not been made in accordance with the requirements of section 412 of the Act, it cannot proceed to conduct a review of the delegate’s decision: Minister for Immigration & Multicultural Affairs v Hayman (1999) 90 FCR 120. Accordingly, the respondent submits that section 424(A) of the Act does not apply.
The respondent also notes that, the Tribunal did in fact provide the applicant with relevant information, in relation to the question of jurisdiction, by its letter dated 2 August 2004. Further, the applicant responded to that letter by letter dated 18 August 2004 from his migration agent.
[In respect of paragraph 6(c)], this ground of review should be rejected. The Tribunal referred to the nature of the allegations made by the applicant concerning his former authorised recipient. However, the Tribunal correctly noted that there was no provision under the Act or Regulations for an extension of time in which to lodge an application for review with the Tribunal. As acknowledged by the applicant, the Tribunal has no discretion to extend the mandatory time limit by which an application for review is to be lodged with the Tribunal.
Reasons
I accept the approach adopted by Ms Burnett in her written submissions in respect of Grounds (a), (b) and (d) in that they are essentially the same ground of review. The respective dates set out in the Tribunal’s letter of 2 August 2004 are not in dispute (CB p.62). The Tribunal provided the applicant with an opportunity to raise any queries in respect of those dates in its letter of 2 August 2004. The Tribunal requested that any reply was to be received by the Tribunal by 25 August 2004. The applicant’s new agent responded to that invitation with a brief explanation as to why the applicant had been unable to apply to the Tribunal within the statutory time limit specified by the Act. The Tribunal’s letter of 14 September 2004 (CB p.65) clearly indicated that the Tribunal had decided it had no power to determine the application and could not review the delegate’s decision in respect of its refusal to grant the applicant a protection visa. A copy of the Tribunal’s decision made on 13 September 2004 and handed down on 14 September 2004 (CB pp.66-70) clearly indicated that no review of the delegate’s decision took place and the Tribunal’s decision sets out its reasoning. I accept the respondent’s submissions in respect of Grounds (a), (b) and (d) in that they refer to the correct legislative provisions in this circumstance and have applied those provisions correctly.
The grounds that contain reference to an alleged breach of s.424A are misconceived as s.424A falls within Division 4 of Part 7 of the Act which addresses “the conduct of review”. That Division of the Act addresses the review procedure to be adopted by the Tribunal in any review that it undertakes. The decision of the Tribunal was that it did not have jurisdiction to undertake the review with the consequence that no review occurred. Any claim that s.424A was in any way breached by the Tribunal cannot be sustained.
Ground (c) made reference to a discretion to be exercised by the Tribunal to waive the time limit set for the receipt of applications for review of decisions of the delegate. This argument is misconceived as the requirements contained in the Act and Regulations are mandatory in nature and contain no discretionary elements.
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. In order to make that assessment I have reviewed all the material contained in the Court Book prepared for these proceedings and re-read the decision of the Tribunal dated 13 September 2004. On the face of that material and supporting material I am satisfied that no jurisdictional error is apparent. The Tribunal letter dated 2 August 2004 (CB p.62) invited the applicant to provide an explanation for the delay in the filing of the requested review. The applicant raised no dispute in respect of the timing of the issue of the decision and the subsequent filing of a request for review. An explanation was offered that the delay was the fault of the applicant’s migration agent in that the agent failed to perform certain tasks.
During the hearing, the applicant advised the Court that during this period he had suffered a serious accident which resulted in a broken leg. The applicant submitted that this was a contributing factor in his failure to respond to the application for review in a more timely manner. No evidence or explanation was provided by the applicant in respect of the period of the alleged injury and the extent of any incapacity due to that injury.
Conclusion
Insofar as the application seeks relief in relation to the decision of the Tribunal, the application is 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-one (21) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 28 October 2005
0
2
0