SZGOQ v Minister for Immigration

[2006] FMCA 331

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGOQ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 331

MIGRATION – Application to review decision of Refugee Review Tribunal – application for review of delegate’s decision lodged out of time – whether Tribunal made an error of law in determining that it had no jurisdiction. 

Migration Act 1958 (Cth), ss.66, 411, 412, 414, 424, 494B, 494C & 494D
Migration Regulations rr.2.16(3) & 4.31(2)(b)

Applicant: SZGOQ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1625 of 2005

Judgment of: Barnes FM

Hearing date: 22 February 2006

Delivered at: Sydney

Delivered on: 22 February 2006

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Clayton Utz

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 First Respondent’s costs set in the sum of $4,250. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1625 of 2005

SZGOQ

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 16 May 2005.  The Tribunal found that it did not have jurisdiction to review the decision of a delegate of the respondent not to grant the applicant a protection visa.  The applicant had applied for a protection visa on 18 November 2004.  On

   
   

   13 January 2005 a delegate of the respondent refused to grant the applicant a protection visa.  The applicant was notified of that decision by letter dated 13 January 2005 which is marked as sent by registered post to the applicant’s home address, to her postal address as notified in her protection visa application and also to a migration agent authorised to act on her behalf in an authorisation form (Form 956) dated

   
   

   18 November 2004 which was sent to the Department. 

2. On 28 February 2005 the Tribunal received an application for review of the decision of the delegate.  In that application the applicant provided her residential address and nominated her migration agent to act for her in relation to the application.  She indicated that she wanted correspondence about her application sent to her migration agent as her authorised recipient. 

3. The Tribunal acknowledged receipt of the application by letter dated 1 March 2005 sent to the migration agent with a copy to the applicant.  The letter stated as the agent had been appointed to receive correspondence on behalf of the applicant no further correspondence would be sent to the applicant and that it was important that the adviser tell the review applicant about future correspondence. 

4. On 30 March 2005 the Tribunal sent a letter to the applicant to the applicant care of the authorised recipient.  That letter advised the applicant that her application for review had been received on

   
   

   28 February 2005 but that it appeared to be too late and that the Tribunal had no power to consider late applications.  The letter stated that applications to the Tribunal must be made within 28 calendar days of notification of the Department's decision and explained the manner in which such dates were calculated.  It expressed the view that the last day for the applicant to apply to the Tribunal was 21 February 2005.  The Tribunal letter concluded that if the applicant disagreed and thought the Tribunal had power to consider her application she should write to it by Friday, 22 April 2005. 

5. An affidavit affirmed on 17 February 2006 by Hilary Lovibond, a District Registrar of the Refugee Review Tribunal, annexes a record of letters sent by registered post with a date stamp indicating that the letter in question, identified by registered post number, name and address was sent by registered post on 30 March 2005. 

6. It is apparent from the Tribunal reasons for decision that no response to this letter was received by the Tribunal.  On 17 May 2005 the Tribunal sent a letter to the authorised recipient notifying the applicant that it had decided it had no power to consider the application for review. 

7. The Tribunal reasons for decision referred to the fact that it had written to the applicant putting to her its preliminary view that it did not have jurisdiction because the application was received out of time. The Tribunal found that in accordance with the provisions of the Migration Act and Regulations to which it referred, an applicant who is not in immigration detention (and there is no suggestion that this applicant is or was in immigration detention at any relevant time) must lodge an application for review within a period not later than 28 days after the notification of the delegate’s decision and that there is no provision for an extension of time.

8. The Tribunal considered the notification by the Department to the applicant of the decision of the delegate.  It found that the contents of the delegate's decision notice complied with the requirements of the Act and that written notice was sent by the Department by registered mail to the authorised recipient and to the applicant at her residential address within three working days of the date of the notice so that the applicant was taken to have received the notice on 24 January 2005.  On this basis the Tribunal found that the 28 day period within which the review application must be lodged ended on 21 February 2005.  As the application for review was not received until 28 February 2005, the Tribunal found that it was outside the mandatory time limit.  Hence it was not a valid application and the Tribunal found that it had no jurisdiction to review the delegate's decision. 

9. The applicant sought review of the Tribunal decision by application filed in this Court on 23 June 2005.  That application contains a generally expressed and unparticularised ground.  The applicant now relies on an amended application filed on 14 September 2005 which raises a number of contentions.  First it is contended that the Tribunal misconstrued and misapplied the law concerning its determination. Second that many of the applicant’s “important claims, facts and evidence” were not considered and assessed carefully when the decision was made by the Tribunal.  It was claimed in the amended application that the application for review was lodged outside the time limit because the applicant was “not contactable due to serious illness” and that she could provide medical evidence to prove her claims and that her strong and compassionate compelling reasons should be taken into consideration.  There is no medical evidence before the Court and the applicant told the Court in oral submissions that she did not attend the doctor at the relevant time. 

10. The application also claims that the nature of refugee claims “involves risky factors when hard evidence was to be transferred from China to Australia” and that when some hard evidence was not yet available, she should be given some opportunities and benefits of doubts and her written and oral claims should be treated as evidence and given sufficient weight.  Finally it was claimed that the applicant needed time to engage a proper solicitor to prepare for the case and that she had not received free legal advice from the lawyer appointed under the Court's legal advice scheme. 

11. Dealing first with the last of these grounds, insofar as this might be taken as an application for an adjournment, it was opposed by the respondent. The respondent's submissions indicate that the applicant has had an adviser appointed to assist her under the legal advice scheme and there is nothing in the material before me to indicate that it is in the interests of justice that further time be allowed prior to the hearing of this application (which was filed in June 2005). 

12. The applicant’s contention that the Tribunal misconstrued and misapplied the law appears to address its findings that her application was lodged out of time and that it had no jurisdiction.  The applicant does not dispute that her application was lodged outside the time limit for the filing of applications for review with the Refugee Review Tribunal.  She provides an explanation based on claimed ill-health and asks the Court to take into account compassionate and compelling circumstances.  However there is no evidence of ill-health before the Court and, in any event, the Court’s role is limited to reviewing the decision of the Tribunal and determining whether there is a jurisdictional error.  The claim of ill-health and “compassionate and compelling circumstances” does not establish a ground for judicial review.  I note that at all relevant times the applicant had the assistance of a registered migration agent acting on her behalf in relation to her application for review by the Tribunal. 

13. The Tribunal sought further information from the applicant pursuant to section 424 of the Migration Act 1958.There is nothing in the material before me to suggest that the applicant sought to avail herself of any opportunity to put forward her explanation to the Tribunal through her migration agent or otherwise provided any explanation, information or submissions to the Tribunal. 

14. Moreover no jurisdictional error is demonstrated in the Tribunal's construction and application of the law in its determination that it had no jurisdiction to consider the review application.  The Tribunal identified the issue it had to determine, that is whether it had jurisdiction to review the delegate's decision to refuse the grant of a protection visa.  It had regard to the provisions of the Migration Act 1958 and Regulations relevant to its decision, in particular ss.66, 411, 412, 414, 494B, 494C and 494D, and Regulations 2.16(3) and 4.31(2)(b).

15. The time limit applicable to an application to the Tribunal for review of a delegate's decision is to be found in section 412 of the Act (to which the Tribunal referred). An application must be given to the Tribunal within the prescribed period, being a period ending not later than 28 after notification of the delegate’s decision. Regulation 4.31(2)(b) states that the period within which an application for a Tribunal review of the delegate's decision must be made commences on the day when the applicant is notified of the decision to which the application relates and ends at the end of 28 days.

16. Section 66 of the Migration Act 1958 requires the Minister to notify the applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act, which provides a number of alternative methods for giving a document to a person. One of the methods specified is dating the document and despatching it within three working days by prepaid post or other prepaid means to the last address for service provided to the Minister by the recipient or the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents. If a document is given to a person by this method and the document was despatched 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 under section 494C(4).

17. The applicant had notified the Minister in writing that he or she authorised an authorised recipient to receive documents in connection with matters arising under the Act or Regulations.  Hence the Minister had to give the authorised recipient, instead of the applicant, any documents the Minister would otherwise have given to the applicant.  If that was done then the Minister would be taken to have given the documents to the applicant (although that does not prevent the Minister giving the first person a copy of the document).  I note in that respect that lest there be any doubt in relation to the scope of the authorisation of 18 November 2004 naming the authorised recipient, the letter of notification of the decision from the Department to the applicant which was dated 13 January 2005 was sent by registered post not only to the person nominated by that authorisation but also to the applicant at the residential and postal addresses nominated in her protection visa application. 

18. No error in the Tribunal’s consideration of these provisions is apparent. On this basis it found that the applicant was taken to have received notice of the delegate’s decision on 24 January 2005 (ss.494B(4) and 494C(4)). It calculated the 28 day period within which the review application must be lodged from that date. It is apparent from the Tribunal's reasons for decision that it understood and applied the provisions of the Migration Act and Regulations. It has not been established that it misconstrued and misapplied the law concerning its determination. It correctly noted the relevant provisions, found that the delegate had complied with the notification procedures and correctly calculated the date on which the applicant had to lodge her Tribunal application. The Tribunal’s finding that it did not have jurisdiction to review the delegate’s decision was open to it on the material before it and no jurisdictional error is established in that respect.

19. In light of the Tribunal's finding that it did not have jurisdiction to review the delegate's decision, it was not obliged to address the substance of the applicant's claims to fear persecution.  Insofar as the applicant's claims (about misapplication of the law, failure to consider her claims and the nature of refugee claims for people from China) take issue with the Tribunal's failure to consider her application for a protection visa, the applicant seeks merits review of the Tribunal's decision which is not available. 

20. The applicant has failed to demonstrate jurisdictional error in the Tribunal's reasons for decision or in its procedures and the application must be dismissed.  I note that the respondent consents to the joinder of the Tribunal as party to the proceedings and I will so order.  Before I do so I will hear submissions in relation to costs. 

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful and the respondent seeks that she pay costs in the sum of $4,250.  The applicant told the Court that she did not have money at the moment.  However, her impecuniosity is not a reason for not awarding costs.  There is nothing in the material before me to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent.  The amount sought is appropriate in the light of the nature of this and other similar matters. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  8 March 2006.