SZFVV v Minister for Immigration

[2006] FMCA 1154

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFVV v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1154

MIGRATION – Application to review decision of Refugee Review Tribunal – letter notifying applicant of decision of Department not actually received – deemed notification – no jurisdictional error on part of Tribunal.

Migration Act 1958 (Cth), ss.48B, 412, 417

Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550
SZBMF v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 485
Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172

Applicant: SZFVV

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG588 of 2005

Judgment of: Barnes FM

Hearing date: 3 August 2006

Delivered at: Sydney

Delivered on: 3 August 2006

REPRESENTATION

Applicant: In Person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the Refugee Review Tribunal be joined as second respondent to the proceedings.

2. That the application is dismissed.

3. That the applicant pay the costs of the first respondent fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG588 of 2005

SZFVV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 7 February 2005 that the Tribunal had no jurisdiction to review a decision of a delegate of the first respondent refusing to grant the applicant a protection visa. 

2. The applicant applied for a protection visa on 28 July 2004.  In Part C of his application he provided a street address in Campsie as his current residential address and as his current postal address.  He did not provide any contact telephone numbers in his protection visa application and he did not nominate an authorised recipient. 

3. The delegate refused the application for a protection visa on 30 July 2004.  The decision was sent to the address provided by the applicant by letter sent by registered mail dated 30 July 2004.  According to a Departmental note for file dated 10 August 2004 (and consistent with a copy of an envelope in the court book addressed to the applicant, marked return to sender and stamped received by the Department on

   
   

   6 August 2004) the refusal decision and covering letter was returned to the Department by Australia Post on 6 August 2004 with a notation on the envelope of “insufficient address” for the advised address in Campsie.  The Departmental file note of 10 August 2004 recorded that the file had been checked and that the applicant had provided no other address details, no telephone contact numbers, no alternative postal address, nor an authorised contact.  It recorded that no further action could be taken to notify the applicant of the decision until or unless he advised the Department of his correct address.  However on that note, with an exclamation mark, are the words “Mobile on folio 1!”. 

4. Annexed to an affidavit of Brooke Marie Griffin sworn on 1 August 2006 and filed in these proceedings is a copy of an additional document which is a copy of an Express Post envelope addressed to the Department with the applicant’s name and residential address provided as details of sender and including a mobile telephone number.  It is not disputed that this is a copy of the envelope in which the applicant’s protection visa application was posted to the Department. 

5. The applicant sought review of the decision of 30 July 2004 of the delegate of the respondent not to grant him a protection visa by application lodged with the Tribunal on 14 October 2004.  In that application he stated that he had called the Department that day and that the Department had informed him that the refusal letter had been posted to his residential address on 6 August 2004.  It is not clear whether this is a reference to the letter of 30 July 2004 or to the “return to sender” of that letter on 6 August 2004 or a mistake in the date.  The applicant claimed that he had been living at the Campsie address but that he had never received the refusal letter, although he had received the first two letters sent to that address. 

6. In his review application the applicant provided the same address to the Tribunal as his home address, but also provided a separate post office box mailing address. 

7. The Tribunal wrote to the applicant on 25 November 2004 informing him that his application appeared to be out of time.  He responded by letter advising the Tribunal that he had never received the refusal letter from the Department and stating that he did not receive any notification of registered mail from the post office. 

8. In its reasons for decision the Tribunal outlined the relevant provisions in relation to a valid application under the Migration Act 1958, the fact that an applicant has 28 days after notification of the decision to apply to the Tribunal pursuant to s.412(1)(b) of the Act and Regulation 431 of the Migration Regulations and that there was no provision for extension of time. It considered the provisions of the Migration Act in relation to deemed notification of decisions by the Department, in particular the requirement that the Minister must notify an applicant of the decision to refuse to grant a visa by one of the methods specified in s.494B of the Act. One of those methods consists of despatching the documents within three working days of the date of the document by pre-paid post to the last address for service or the last residential or business address provided to the Department by the applicant.

9. The Tribunal also referred to s.494C(4) of the Act which provides that if a Minister gives a document to a person by such method the person is taken to have received the document, relevantly, seven working days after the date of the document. The Tribunal stated that this would be so even if the document was never in fact received. On that basis, the Tribunal found that the 28-day period within which a review application must be lodged commenced seven working days after the date of the notice. The Tribunal was satisfied in this instance that the content of the delegate’s decision notice complied with the requirements of the Migration Act. It referred to the sending of the letter by registered mail on 30 July 2004, the applicant’s claim that he did not receive it and the fact that it was returned to sender and found it clear that the applicant did not receive the letter or any notification cards. However, it also found that the letter was correctly addressed according to the information provided by the applicant in his visa application form.

10. The Tribunal referred to the fact that on the express post envelope sending his protection visa application to the Department the applicant did provide a mobile phone number and that the Department did not record this in the file note, nor attempt to contact the applicant by this means. Nonetheless, it found that the Department complied with the Migration Act and that the applicant was validly notified in accordance with s.494B(4) of the Act. It found, therefore, that the applicant was taken to have received the notice on 10 August 2004 (even though the letter was returned unclaimed.) Therefore it found the review application had to be lodged by 7 September 2004. It did not reach the Tribunal until 14 October 2004. The Tribunal found that as the review application was received by it outside of the mandatory time limit it was not a valid application and that it had no jurisdiction to review the delegate’s decision.

11. The applicant sought review of the Tribunal decision by application filed in this court on 9 March 2005.  He relies on an amended application filed on 10 June 2005 in which he claims that the Tribunal fell into jurisdictional error and that the Department did not send the decision letter to him.  It is claimed by the applicant that the Department failed to send the decision letter to the right address, that he had never received the letter from the Department and that the Tribunal had erred in not accepting his application and failing to consider his claims despite his explanation.  He claimed that as he could not get his application reviewed at the Tribunal he could not ask the Minister for intervention and lost the chance to have his application reviewed or considered again. 

12. In oral submissions the applicant reiterated these issues.  When he was asked if he was claiming that he had provided more than the residential address to the Department he was not able to assist the court other than to state that when he first came here he did not receive letters and later he could.  He claimed that he believed that the Department had made a mistake and that this led to him being unable to appeal in time.  He did not elaborate on the manner in which he claimed that the Department did not send the decision to the right address. 

13. It is apparent from the material before the court as set out above that the only address provided by the applicant to the Department was the residential address in Campsie which was also provided as his postal address.  There is nothing in the material before the court to indicate that the post office box address that the applicant provided to the Tribunal was also provided by him to the Department.  Accordingly, as the Tribunal found and as contended for by the respondent, no error has been established in the Tribunal’s decision arising from the fact that the delegate’s decision was sent by registered post to the applicant’s stated and only address. 

14. The applicant is taken to have received the letter of 30 July 2004 by virtue of ss.494B(4) and 494C(4) of the Act seven working days after the date of the letter despite the fact that the Tribunal accepted that he did not actually receive it. As his application to the Tribunal was not made until 14 July 2004 it was, as the Tribunal found, outside the time limits in section 412 of the Act and Regulation 4.31. There is no provision in the Act for an extension of time by the Tribunal. No jurisdictional error has been established, nor is any apparent, in the manner in which the Tribunal considered these provisions.

15. Insofar as the applicant claimed that the delegate’s letter was sent to the wrong address, there is nothing in the material before the court to suggest that any other address was provided to the Department or to clarify the manner in which this was said to be the wrong address.  While the ‘return to sender’ document indicated that insufficient details were provided, the same address (which is a street number in Campsie) was provided to the Tribunal by the applicant as his residential address. 

16. As the Tribunal explained in its reasons for decision, notifying the applicant of the delegate’s decision by letter sent to that nominated address was a permitted means of notifying the applicant of the delegate’s decision. Unfortunately for the applicant, because s.494C(4) deemed him to have received that letter on 10 August 2004, the fact that he did not in fact receive the notification does not mean that the delegate did not notify him in accordance with the provisions of the Migration Act. That is so even though the Tribunal accepted that the applicant did not actually receive either the letter or any notification cards from the post office and despite the fact that he had recorded a mobile phone number on the envelope containing his protection visa application. (See Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550, Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 and SZBMF v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 485). The application before the Court is to review the decision of the Tribunal. No jurisdictional error has been established in the Tribunal decision.

17. The applicant was understandably concerned because of his view that he would not be able to seek any reconsideration of his claims to fear persecution, apparently on the basis of his understanding of the scope of s.417 of the Migration Act. As pointed out by counsel for the respondent it is always open to him to apply to the Minister under section 48B of the Act. However that is not an application that can be made to this court. The power under s.48B to allow an applicant to make a further application for a protection visa is a power that may only be exercised by the Minister personally. The court has no alternative but to dismiss the application for review of the Tribunal decision.

RECORDED : NOT TRANSCRIBED

1. The respondent also seeks that the Tribunal be joined as the second respondent.  This is appropriate and I will make such an order.  The applicant has been unsuccessful and there is nothing to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent.  His lack of funds is not a reason for not awarding the costs although it may be a matter to be taken into account by the respondent in determining when and how to seek to recover such costs. 

2. The respondent seeks costs in the sum of $5,500.  However, in the light of the nature of this and other similar matters I consider that an appropriate amount is the sum of $5,000. 

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

Associate:

Date:  22 August 2006