SZHKQ v Minister for Immigration
[2007] FMCA 317
•6 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHKQ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 317 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error in Tribunal finding that it had no jurisdiction. |
| Migration Act 1958 (Cth), ss.36, 52, 412, 494 |
| Singh vMinister for Immigration & Multicultural Affairs [1999] FCA 353 Taylor vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 281 |
| Applicant: | SZHKQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3079 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 6 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2007 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The title of the first respondent be amended to ‘Minister for Immigration & Citizenship’.
The Refugee Review Tribunal be added as the second respondent to the proceedings.
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3079 of 2005
| SZHKQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for a review of a decision of the Refugee Review Tribunal (the Tribunal) made on 5 October 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.
The applicant is a citizen of the People’s Republic of China who applied for a protection visa along with her husband on 6 January 2005. The applicant’s husband was the primary applicant for a protection visa in the sense that he was the person who completed Part C indicating a wish to submit his own claims to be a refugee.
The applicant in these proceedings (who I will at times refer to as the applicant wife) was described as applicant 2 on Part B of the application for a protection visa and the wife of applicant 1. The form states that:
Applicant 1 should be the person you wish the Department to contact about this application (although you may wish to authorise another person or your migration agent to receive written communications).
The applicant wife completed Part D of the protection visa application form, indicating that she made an application as a member of the family unit of her husband. Attached to the protection visa application was a statement of claims expressed as a statement of claims by the husband and listing the wife as the joint agent. The applicant husband claimed to fear persecution in China on the basis of his Falun Gong activities. The statement also referred to the applicant wife being a Falun Gong practitioner.
Relevantly, on 10 January 2005 the Department wrote to the applicant’s husband acknowledging receipt of the protection visa application. On 15 February 2005 a delegate of the first respondent wrote to the applicant’s husband by letter sent by registered post to the address he had provided in the protection visa application as both his residential address and postal address. I note that in Part D of the protection visa application the applicant, while ticking the box to indicate that she did not live at the same address as her husband, in fact provided the same residential address.
The letter of 15 February 2005 informed the applicant husband that his application had been refused and that as he had been refused a protection visa, his wife who was included in the application but had no claims of her own to be a refugee, had also been refused a protection visa. The letter stated that it attached the decision record giving the reasons for the refusal.
On 16 June 2005 the Tribunal received an application from the applicant wife for review of the decision of the delegate dated 14 June 2005. Her husband lodged a separate application for review.
The applicant provided a ‘joint’ statutory declaration in which she described the other applicant as her friend. Putting that on one side, in that statutory declaration she relevantly stated that they had received “notifying papers” to advise them to go to the post office to pick up registered letters, which they guessed should be from the Immigration Office. They stated that they did not get the letter as they did not know “how to pick up letter and where to go” and so missed the time limit for applications to the Tribunal which they later found out about.
Subsequently the Tribunal wrote to the applicant at the address provided by her in “change of address” details notified on 11 July 2005, seeking comment on the fact that it appeared that her application was too late and that the Tribunal had no power to consider late applications.
The applicant wrote to the Tribunal by joint letter dated 30 September 2005 stating that they had decided to tell the truth about the reasons they lodged the review application out of time. She conceded that it was correct that she and her husband had lodged their Tribunal application out of time, but stated that this was not their fault and that a named migration agent had assisted them in lodging their application, had not explained procedures to them and that they had not received any letters from the Department.
In its reasons for decision the Tribunal outlined the fact that the applicant had applied along with her husband to the Department for a protection visa, that the application had been refused and the applicant was notified of the decision by letter dated 15 February 2005 but sought review by the Tribunal on 16 June 2005.
The decision turned solely on the Tribunal’s consideration of whether or not it had jurisdiction, which in turn depended on whether a valid application had been made for review of the delegate’s decision. The Tribunal referred to the applicant’s submissions and set out the relevant provisions of the Migration Act 1958 (Cth). It was satisfied that the contents of the delegate’s decision notice complied with the requirements of s.66(2) of the Act. It noted that the file records indicated that no notice had been given by the applicant under s.494D of the Act, (that being the provision that relates to the appointment of an authorised recipient) and that the decision notice was sent on
15 February 2005 by registered mail to the applicant’s husband, with whom the applicant had made a combined application, at the last residential address provided to the Minister by the applicant’s husband.
The Tribunal found that the notice was sent in accordance with the requirements of s.494B(4) of the Act. Hence, in accordance with s.494C(4), the applicant was taken to have received the notice on
24 February 2005, that is, seven working days after the date of the document. It found, therefore, the 28 day period within which the review application must be lodged with the Tribunal under s.412 of the Act ended on 24 March 2005 and that as the review application was not received on 16 June 2005 it was received outside the mandatory time limit and was not a valid application. The Tribunal found that it had no jurisdiction to review the delegate’s decision.
The applicant sought review of the Tribunal decision by application filed in this Court on 24 October 2005. She relies on an amended application filed on 2 February 2006. In that amended application she claimed that she was not properly notified of the refusal by the Department and that this was not due to her fault. She claimed that the Tribunal failed to give any weight to her claims and that as a result she was denied her right to have her case reviewed in the Tribunal. She claimed that the Tribunal committed jurisdictional error by failing to invite her to a Tribunal hearing and failed to consider her claim that she faced a real chance of persecution in China. The particulars claimed that the Tribunal did not investigate her particular situation or consider the consequences of refusal of her application.
In oral submissions the applicant told the Court that she and her husband were in Brisbane when the Department sent the letter notifying them of the decision. She elaborated on the claims she had made to the Tribunal in relation to the assistance of a migration agent. There is no evidence before the Court in relation to these matters other than the material in the court book and there is no suggestion that the additional factor which the applicant now seeks to put in relation to being in Brisbane was a matter that she had put to the Tribunal in the submissions made to the Tribunal.
In any event, the issue for the Court is whether the Tribunal fell into error in finding that it did not have jurisdiction to review the decision of the delegate because the applicant was out of time. In relation to that issue, as set out above, the initial application was an application in which the husband sought a protection visa on the basis of a claim to have a well-founded fear of persecution and his wife (the present applicant) was included in his application as a member of his family unit. The application was refused on 15 February 2005. The delegate of the respondent wrote to the applicant by writing to the applicant husband.
I note in that respect that section 36 (which deals with protection visas) specifies in sub-s.(2) that a criterion is that the applicant is a non-citizen to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention or that the applicant is a non-citizen in Australia who is the spouse or a dependent of such a non-citizen who holds a protection visa. Importantly, s.52(3C) of the Act provides that:
If, in accordance with the regulations, 2 or more non-citizens apply for visas together, notification given to any of them about the application are taken to be given to each of them.
The protection visa application form itself indicated that applicant 1 (the husband in this case) should be the person the applicants wished the Department to contact about the application. The applicant husband indicated that the address to which all communications should be provided was to himself. In Part C he provided the same residential and postal address being a street address in a suburb in Sydney. As indicated, in Part D of the protection visa application, although the applicant ticked the box that indicates “No” in response to the question “Do you live at the same address as applicant 1?” she in fact provided precisely the same residential address.
In these circumstances the Department could give any notification about the application to the applicant husband. It is necessary to consider whether the notification of the decision by the Department delegate to the husband met the other notification requirements of the Migration Act. The Tribunal was satisfied that it did. There is nothing in the material before the Court to indicate any error in that aspect of the Tribunal reasons for decision.
The decision notification letter was sent by registered post to the applicant’s husband (the primary applicant) by letter dated 15 February 2005 in accordance with s.66 of the Migration Act. As required by s.66(2), the notification explained why the visa application had been refused both for the applicant husband and for the applicant wife, and gave written reasons why the criteria were not satisfied.
The letter was sent to the applicant’s husband’s residential and postal address. No other address had been nominated by either the applicant wife or the applicant husband. Neither of them had nominated an authorised recipient or other person to receive communications on their behalf. Nor, despite what they subsequently said in submissions to the Tribunal, did they nominate in the protection visa application a migration agent to act on their behalf.
Section 494B of the Act specifies methods by which the Minister gives documents to a person. Relevantly, sub-s.(4) provides for despatch by pre-paid post or other pre-paid means, with the Minister dating the document and despatching it within three working days of the date to the last address for service or the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.
Based on the affidavit of Katherine Nicole Hooper, affirmed and filed on 1 March 2007, I am satisfied that the delegate’s decision notification was sent within three working days to the correct address in accordance with s.494B(4). In that respect, I note also that the last residential or business address provided to the Minister by the applicant wife was the address provided in the protection visa application. Hence that letter was taken to have been received seven working days after its date in accordance with s.494C of the Act. That is so whether or not the applicant actually received the letter. It was taken to have been received in this case on 24 February 2005.
Thus the time limits applicable to review by the Tribunal are relevant. Section 412 of the Act provides that an application for review of a 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 of the delegate (see Regulation 4.31 of the Migration Regulations 1994). In this case, the Tribunal decision was not received until 16 June 2005. The applicant was required to lodge her Tribunal application within 28 days after notification of the Tribunal decision. The Act makes no provision for an extension of time. It does not give the Tribunal a discretion to extend the time even if such a result may appear harsh or unfair. Nor does this Court have a discretion to extend the time for applications to the Tribunal (see Taylor vMIMIA [2005] FMCA 281 and Singh vMIMA [1999] FCA 353). Because the applicant’s review application was received by the Tribunal outside the mandatory time limit it was not a valid application under section 412 and the Tribunal correctly found that it had no jurisdiction (see section 414).
Finally, I note that in written submissions the first respondent submitted that there may be an alternative basis on which the Tribunal had no jurisdiction, that being that the applicant’s husband was the subject of the primary decision, not the applicant, and hence that her application for review was outside s.412(2). The Tribunal did not proceed on this basis and the first respondent did not pursue this contention, relying on the submission, which I accept, that no error is established in the Tribunal finding that the application was out of time. Hence, it is not necessary for the purposes of this decision for me to address that argument.
I also note that insofar as the applicant takes issue with the conduct of a migration agent, that is not a matter that establishes that the Tribunal was in error or a matter than can be addressed by this Court in these proceedings, although it may be a matter that the applicants wish to raise with the Minister.
Because of my finding that the Tribunal did not fall into error in finding that it did not have jurisdiction, it follows that there is no substance in the grounds in the amended application. Having found, correctly, that it had no jurisdiction it was neither necessary nor appropriate for the Tribunal to have regard to the substantive claims of the applicant, or to invite her to a Tribunal hearing. Nor was it open to the Tribunal to take into account the applicant’s claims about hardship and persecution she might face on return to her home country in considering the issue of whether or not it had jurisdiction in relation to review of her application. Accordingly the application must be dismissed.
It is appropriate to make the additional procedural orders sought by the respondent, that is, that the title of the respondent be amended to the Minister for Immigration and Citizenship and that the Refugee Review Tribunal be added as the second respondent. It is also appropriate to make the order for costs that is sought.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 15 March 2007
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