SZHGG v Minister for Immigration

[2007] FMCA 340

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHGG v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 340

MIGRATION – Application to review decision of Refugee Review Tribunal – application received by Tribunal out of time.

Migration Act 1958, ss.412, 494D
Migration Regulations 1994

NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 487
Plaintiff S157 v Commonwealth (2003) 211 CLR 476
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162

Applicant: SZHGG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2817 of 2005

Judgment of: Barnes FM

Hearing date: 8 March 2007

Delivered at: Sydney

Delivered on: 8 March 2007

REPRESENTATION

Solicitors for the Applicant: In person

Counsel for the Respondents: Nil

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The title of the respondent be changed to Minister for Immigration & Citizenship.

2. The Refugee Review Tribunal be included as the second respondent.

3. The application be dismissed.

4. The applicant pay the costs of the first respondent fixed in the sum of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2817 of 2005

SZHGG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application filed on 4 October 2005 seeking review of a decision of the Refugee Review Tribunal (the Tribunal) made on 14 September 2005, and notified by letter of 15 September 2005, that the Tribunal did not have jurisdiction to review a decision of a delegate of the first respondent refusing to grant the applicant a protection visa. 

2. The background to these proceedings is that on 22 February 2005 the applicant lodged an application for a protection visa.  On 17 May 2005 a delegate of the first respondent refused to grant the protection visa.  The delegate wrote to the applicant by letter dated 17 May 2005 informing him of that decision and attaching a copy of the decision record. 

3. The material before the Court indicates that on 30 July 2005 the applicant lodged an application with the Tribunal for review of the delegate’s decision.  The Tribunal wrote to the applicant on 1 August 2005 acknowledging receipt of the application and wrote again on 19 August 2005 inviting his comments on the fact that it appeared to the Tribunal that the application was received out of time as it should have been lodged by 23 June 2005.  The applicant responded by letter dated 31 August 2005 stating that he sent his review application to the Tribunal before 23 June 2005 but that:

   Unfortunately, tribunal did not receive my application. When I did not receive any letter from Tribunal.  Then I call to the tribunal, tribunal informed me that they did not receive my review application.  After that I lodged another review application to the RRT.  Due to this, the tribunal received my application 30/07/2005.

4. The letter continued that the situation was beyond the applicant’s control and asked the Tribunal to consider the review application. 

5. However, in its reasons for decision the Tribunal found that it did not have jurisdiction to review the decision to refuse to grant the applicant a protection visa.  The Tribunal referred to the relevant provisions of the Migration Act 1958 (Cth) and the Migration Regulations. It was satisfied that the contents of the delegate’s decision notice complied with the requirements of section 66 of the Migration Act (the provision that requires the Minister to notify the applicant of the decision in the prescribed way and including certain material).

6. The Tribunal had regard to the fact that no notice had been given by the applicant under s.494D of the Act in relation to appointment of an authorised recipient and found that the decision was sent on 17 May 2005 by registered mail to the applicant to the last residential address provided to the Minister by the applicant.

7. No issue was taken by the applicant with the address to which the letter was sent.  It is apparent that this was the address he provided in connection with the protection visa application.  In its reasons for decision the Tribunal stated that the letter was returned unclaimed but nonetheless found that it had been sent in compliance with section 494B of the Act so that the applicant was taken to have received the letter on 26 May 2005 and therefore the 28 day period within which the review application must be lodged ended on 23 June 2005.  The Tribunal found that the application for review was not received by the Tribunal until 30 July 2005 (after the prescribed period had expired). 

8. The Tribunal referred to the applicant’s claims that he had sent an application for review to the Tribunal before 23 June 2005 and that when he did not receive an acknowledgement from the Tribunal he telephoned the Tribunal to discover the application had not been received and then lodged another application.  The Tribunal noted that the applicant did not provide any documentation to support these claims but also that under Regulation 4.31(4) of the Migration Regulations 1994 an application sent to the Tribunal by post or electronic facsimile is not taken to be lodged until it is received at a registry of the Tribunal.  The Tribunal found that as the review application was received outside the mandatory time limit it was not a valid application and the Tribunal had no jurisdiction to review the delegate’s decision. 

9. In his application for review filed on 4 October 2005 the applicant relies on a number of grounds, in particular that the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction to consider the review application, that the applicant did not get an opportunity to provide oral evidence and did not get invited to a hearing and that the Tribunal did not take any initiative to investigate regarding filing of his application to the Tribunal.

10. The application sets out the substance of the applicant’s letter to the Tribunal of 31 August 2005 referred to above.  He referred to the High Court decision in SAAP v MIMIA (2005) 215 ALR 162 without elaboration and sought that the Tribunal be joined as a party to the proceedings. He referred generally to Plaintiff S157 v Commonwealth (2003) 211 CLR 476.

11. Taking the applicant’s contentions in reverse order, there was nothing said in these proceedings to elaborate on the references to Plaintiff S157 or SAAP.  Nor is there anything in those decisions directly relevant to the issue of whether the Tribunal fell into jurisdictional error in finding that it had no jurisdiction.  It is appropriate that the Refugee Review Tribunal be joined as a second respondent to the proceedings. 

12. As to the substance of the grounds in the application for review and the applicant's concern in relation to the Tribunal’s finding that it had no jurisdiction, the difficulty for the applicant is that the Tribunal does not have jurisdiction to consider applications made outside the 28 day time limit under the Migration Act and Regulations. (See NAJT v MIMIA [2003] FCA 487).

13. In this case the Tribunal considered, as it was required to do, whether the notification of the delegate’s decision met the requirements of the Migration Act 1958 (Cth) and the time of notification of that decision. Consistent with the requirements of s.412 of the Migration Act, in particular s.412(1)(b) which requires that an application for review 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. (Reg 4.31) the Tribunal addressed the provisions in relation to notification of decisions by the Minister, in particular s.494B. It found that those requirements were met. There is nothing before the Court to suggest that the requirements of s.494B were not met. In fact the applicant does not dispute that he was notified of the delegate’s decision.

14. The applicant takes issue with the Tribunal’s finding that the letter of notification from the delegate of the first respondent was returned unclaimed.  There is nothing in the material before the Court in the form of a document returned to sender on the Departmental file.  However, the critical issue for present purposes is whether the Tribunal erred in finding that the Department had complied with the notification requirements in the method, timing, address and a dispatching of the notification under section 494B and whether the applicant was taken to have received such document from the Minister under s.494C. 

15. Even if the Tribunal was factually incorrect in finding that the letter was returned unclaimed (a matter that cannot be resolved on the material before the Court), nonetheless no jurisdictional error is established in the findings that s.494B was met and therefore the applicant was taken to have received the notice from the delegate on

16. 26 May 2005 and that the application was lodged outside the 28 day period within which the application to the Tribunal must be lodged which ended on 23 June 2005. 

17. The legal representative for the respondent referred to the fact that the applicant had provided no affidavit or other documentary evidence to the Court to support his claim that he posted an initial application for review to the Tribunal prior to 23 June 2005, other than the assertions that he made in the letter to the Tribunal of 31 August 2005. He told the court he had no documentary evidence. The difficulty for the applicant is that even if there was evidence to that effect, the fact of posting or transmitting an application to the Tribunal would not suffice for the purposes of the Migration Act and Regulations.

18. As was pointed out for the respondent there is no provision in the Migration Act and Regulations for deemed notification to the Tribunal for the benefit of an applicant in such circumstances. This is in contrast to the position under the Act and Regulations in relation to notification to an applicant by the Minister or the Tribunal. Indeed, Regulation 4.31(4) provides that an application posted in accordance with Regulation 4.31(3) or transmitted by electronic facsimile transmission is not to be taken to have been lodged until it is received at a Registry of the Tribunal. There is no evidence that any earlier application was received by the Tribunal and Registry.

19. In these circumstances I cannot be satisfied on the evidence before the Court that the Tribunal erred in finding that it received the application on 30 July 2005.  It has not been demonstrated that the Tribunal erred in finding that the application for review was not received within the applicable time limits.  Hence, as it was outside the mandatory time limit, it was not a valid application (see s.414 of the Act).  No error has been established in the Tribunal conclusion that it had no jurisdiction to review the delegate’s decision.

20. The applicant raised what might be seen as compassionate circumstances, that is, that he did post an application to the Tribunal within the time limit and that it was not his fault that it was not received.  He also raised his personal circumstances.  However, the Court has no discretion either to compel the Tribunal to determine an application or to take such matters into account, although these may be matters that the applicant (who has not had the opportunity to have the merits of his claim to be a refugee considered by the Tribunal) may seek to raise with the Minister. 

21. As no jurisdictional error has been established in relation to the Tribunal decision that it had no jurisdiction to review the decision of the delegate, there is no basis for the substantive grounds in the application to this Court.  The requirements under the Act for the Tribunal to invite an applicant to a hearing apply only to applications for review in relation to which the Tribunal has jurisdiction.  Hence no error is established in the Tribunal’s failure to invite the applicant to a hearing.  

22. Nor was the Tribunal under an obligation to investigate regarding the filing of the application for review as contended.  I note in that respect that the account of the applicant’s call to the Tribunal in the letter of

    
    

    3 August 2005 indicates that he raised with the Tribunal the fact that he had made an application prior to 23 June 2005, but that the Tribunal informed him that it had not received such an application.  In this sense it addressed his contention that he had filed an earlier application. 

23. Accordingly, as no jurisdictional error has been established, the application must be dismissed. 

24. The respondent also seeks that the Tribunal be included as the second respondent and that the title of the first respondent be changed to Minister for Immigration & Citizenship.  These orders are appropriate. 

RECORDED  :  NOT TRANSCRIBED

1. The applicant has been unsuccessful and it is appropriate in those circumstances that he meets the costs of the respondent.  He submitted that he could not meet the costs.  He has no permission to work and a wife and daughter to support.  However his lack of funds and his commitments are not reasons for not awarding costs, although they may be matters to be taken into account by the respondent in determining when and how to seek to recover such costs.  The amount sought is appropriate in light of the nature of this and other similar matters. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  20 March 2007