SZGMS v Minister for Immigration
[2005] FMCA 1861
•29 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGMS v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1861 |
| MIGRATION – RRT decision – measurement of time for lodgement of application – no power to extend. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1), 66(1), 412, 412(1), 412(1)(b), 483A, 494B, 494B(1), 494B(4), 494B(4)(a), 494C, 494C(1), 494C(4), 494C(4)(a)
Migration Regulations 1994 (Cth), regs.2.16, 2.16(1), 2.16(3), 4.31, 4.31(1), 4.31(2)
Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629
Fernando v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 407
SZEYR v Minister for Immigration [2005] FMCA 1344
Tio v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 36 AAR 549
VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570
| Applicant: | SZGMS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1507 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 29 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 29 November 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr J A C Potts |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1507 of 2005
| SZGMS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) seeking orders which would compel the Refugee Review Tribunal (“the Tribunal”) to exercise jurisdiction to review a decision made by a delegate refusing to grant a protection visa to the applicant.
This Court has the same jurisdiction as the Federal Court under s.39B of the Judiciary Act 1903 (Cth) to make such orders if it is satisfied that in fact the Tribunal has jurisdiction in relation to the application which was filed by the applicant.
The applicant arrived in Australia in November 2003 on a visitor’s visa, and applied for a protection visa on 3 December 2003. A brief statement attached to his application claimed that he feared persecution as a result of his practising the Christian religion as a Roman Catholic. However, few details were given by him in his application form and the delegate was not satisfied that he was at risk of persecution in China.
I am satisfied that the delegate’s decision was posted to the applicant by registered post in a letter dated and posted on 5 December 2003. The letter was addressed to the applicant’s “current postal address in Australia” given in his visa application.
I am also satisfied that an application for review was first received by the Tribunal on 14 January 2004, either at 11.50 am or 15.07 pm.
The Tribunal subsequently invited the applicant to comment on whether the review application was lodged within the prescribed period for the purposes of s.412(1)(b) of the Migration Act, and then made a decision that it did not have jurisdiction.
Counsel for the Minister has in his written submission extracted the relevant statutory provisions and explained their effect on current authority in [10]‑[21] of his written submission, which I attach to these reasons. I am satisfied that he correctly identified the provisions and their effect. He cites authority binding on me, holding that the time limit for bringing an application for review is, to use the language adopted in Fernando:
an inflexible and imperative requirement that denies the Tribunal jurisdiction to entertain an application for review lodged out of time. (See Fernando v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 407 (“Fernando”) at [17]).
There is an interesting but immaterial difference between the submission of the Minister and the reasoning of the Tribunal. This concerns the construction in reg.4.31(2) of the Migration Regulations 1994 (Cth) of the words “commences on the day” in the phrase:
[The prescribed] period … commences on the day on which the applicant is notified of the decision to which the application relates, and ends at the end of … 28 days.
In the present case, if the commencement time for calculating the 28 days is at midnight on 16 December 2003, then the Tribunal correctly calculated a 28 day period ending on midnight on 13 January 2004. If “commences on” includes part of 16 December 2003, as was contended by counsel for the Minister, then it ended at midnight on 12 January 2004.
In the circumstances of the present case I do not need to decide this interesting point of construction (c.f. Tio v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 36 AAR 549). In a situation of some ambiguity, I think it was wise of the Tribunal to adopt the construction more generous to applicants. On either interpretation, the present application for review filed on 14 January 2004 was out of time.
The applicant’s application to this Court, his amended application, and his oral submissions to me today have not disputed that his application was lodged with the Tribunal outside the strict 28 day time period. Rather, he pointed to various reasons for being out of time, and urged that the very brief period of delay should be overlooked. He made a moving submission pleading for a further opportunity to allow his claims to be addressed.
It may well be in the present case that the strict time limit has operated unjustly on the applicant. However, I do not have power to dispense with the effects of s.412 as interpreted by the Federal Court, and must agree with the opinion of the Tribunal that it did not have jurisdiction to review the delegate’s decision. In those circumstances, I must dismiss the present application.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 20 December 2005
SCHEDULE
Notification
At the time that the application for a protection visa was made, s.66(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 a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
Section 494B of the Act provided:
494B.(1) For the purposes of provisions of this Act or the regulations that:
(a)require or permit the Minister to give a document to a person (the recipient); and
(b)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 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.
Thus, s.494C deems a document to have been received on the date specified in that section.
In this case, the 5 December 2003 letter advising the applicant that his visa application had been refused was sent to him on 5 December 2003 by registered post (CB at 32‑34 and postal log at CB 50 entry 15). It was sent to his postal address. It was open to the Department to send the letter to this address, see: SZEYR v MIMIA [2005] FMCA 1344 at [8]‑[11]. That the 5 December 2003 letter was in fact sent within 3 working days of the date of the letter (as required by s.494B(4)(a)) is evident from the postal log (CB at 50). The letter itself bears a handwritten annotation “5/12/03” next to the Registered Post label (CB at 32, top‑right hand corner). In accordance with s.494C(4)(a), the 5 December 2003 letter was deemed to have been received 7 working days (see s.5(1)) after the date of the letter, so that in this case it was deemed to have been received on 16 December 2003.
Time Limit for the Application for Review to the Tribunal
Section 412(1) of the 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.
NoteIf 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.
In this case, the application for review to the Tribunal needed to be made within the prescribed period, being a period commencing on the day on which the applicant was notified of the decision and ending at the end of 28 days. In this case, notice was deemed to have been received on 16 December 2003, and therefore, the time for lodging an application for review expired on 12 January 2004.
The prescribed time limit was mandatory: Fernando v MIMA (2000) 97 FCR 407; VEAN of 2002 v MIMIA (2003) 133 FCR 570 at [33]; Durrani v MIMIA [2005] FCA 629 at [24].
The application for review in this case was not lodged until 14 January 2004 (CB at 43‑46). Under s.412(1)(b), a valid application for review was a pre‑condition to the Tribunal having jurisdiction. Jurisdiction was never validly invoked in this case.
The Tribunal erred in stating that the last day for lodging the application was on 13 January 2003 (CB at 59.4), but the Tribunal was correct in its conclusion that it had no jurisdiction.
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