SZHKR v Minister for Immigration - [2007] FMCA 323

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHKR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 323

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.66, 412, 494
Migration Regulations 1994 Regulation 4.31

Singh v Minister for Immigration & Multicultural & Indigenous Affairs [1999] FCA 353
SZHKQ v Minister for Immigration & Citizenship [2007] FMCA 1
Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 281

Applicant:

SZHKR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG3080 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 should be amended to Minister for Immigration and 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

SYG 3080 of 2005

SZHKR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) signed on 5 October 2005 and notified to the applicant by letter of 11 October 2005, that the Tribunal did not have jurisdiction to review a decision of a delegate of the respondent refusing to grant the applicant a protection visa.
The background facts in relation to this application are set out in SZHKQ v MIAC [2007] FMCA 317, a decision in relation to the wife of the applicant in this case. Relevantly, the applicant applied for a protection visa on 6 January 2005. His wife was included in that application as a member of his family unit. His claims, based on his involvement in Falun Gong, were set out in a statement accompanying the protection visa application.
He indicated in his application that all written communications about the application should be sent to him. In Part C of the protection visa application he provided the same street address in a suburb in Sydney as a residential and postal address.
By letter dated 15 February 2005 and sent by registered post to the applicant at the nominated address for correspondence, the Department notified the applicant that the visa application was refused. The letter informed the applicant of the reasons for decision, attaching the decision record, and of his review rights.
The applicant applied to the Tribunal for review of the original decision by application dated 14 June 2005, received by the Tribunal on 16 June 2005. He provided the Tribunal with a statutory declaration indicating relevantly, that he received notifying papers to let him and his applicant wife know to go to the post office to pick up registered letters (which they guessed would be from the Immigration Office), but that they did not get the letter as they did not know how to pick it up and where to go. Thus they missed the letter and missed the time for the application to the Tribunal.
The Tribunal wrote to the applicant on 20 September 2005 at the address notified in a change of address form received on 11 July 2005 advising that it appeared that the application was out of time and that the Tribunal had no power to consider late applications. It invited the applicant to write to the Tribunal if he disagreed with this assessment.
The applicant wrote to the Tribunal by letter dated 22 September 2005 reiterating that he did not know where and how to pick up a registered letter from the post office and therefore missed the letter. Also in the Court Book is a letter dated 30 September 2005 received by the Tribunal on 4 October 2005 which is a response to the Tribunal’s letter of 20 September 2005 in which the applicant stated that they had decided to tell the truth about why they lodged the review so late. They claimed that they lodged the protection visa application with the assistance of a named migration agent who said he would be fully responsible for the application but that he did not explain procedures and details and that they did not receive any letters from the Department.
In this instance the Tribunal decision rested solely on its finding that the applicant had filed his application outside the prescribed time limit. The Tribunal was satisfied that the delegate’s decision notice complied with the requirements of s.66, that it was dated 15 February 2005, that the records indicated that no notice had been given by the applicant under s.494D of the Act (that is, appointing an authorised recipient) and that the decision notice was sent on 15 February 2005 by registered mail to the applicant at the last residential address provided to the Minister by the applicant.
The Tribunal found that the decision notice was sent within three working days to the applicant at the correct address in accordance with s.494B(4) and that therefore the applicant was taken to have received the notice on 24 February 2005. The 28 day period within which review application must be lodged ended on 24 March 2005 and as the application for review was not received by the Tribunal until 16 June 2005 (after the prescribed period had expired and outside the mandatory time limit), the Tribunal found it was not a valid application and that it had no jurisdiction to review the delegate’s decision.
The applicant sought review by application filed in this Court on 24 October 2005. In his application he claimed that he was not properly notified of the refusal by the Department and that this was not due to his own fault. The application recited that the Tribunal refused to accept the late application. The applicant claimed that the Tribunal failed to give any weight to his claims in its decision, that he did not receive any invitation to a hearing and hence was not given an opportunity fairly to be tested on the issue of his claims, that the Tribunal failed to look at the facts fairly and reasonably and that it ignored his claim that he would face a real chance of persecution on return to China if the Tribunal refused to review his claim.
In these proceedings the applicant husband sought to rely on the oral submissions that had been made by the applicant wife which, while not in the form of evidence, claimed that they had been in Brisbane when the Department delegate sent them the letter notifying them of the decision. However, 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.
As submitted for the respondent, I am satisfied on the material before the Court that the Tribunal correctly found that it had no jurisdiction.
The delegate’s decision notification dated 15 February 2005 was sent to the applicant by registered post. I am satisfied that it was sent to the applicant’s residential and mail address which he had nominated in his protection visa application. He did not nominate an authorised recipient to receive communication on his behalf.
On the basis of the affidavit of Katherine Nicole Hooper affirmed and filed on 1 March 2007 I am satisfied that the Department’s decision notification letter was sent within three working days to the correct address in accordance with section 494B(4). The letter is therefore taken to have been received seven working days after its date in accordance with s.494C(4), that is, on 24 February 2005.
Under s.412 of the Act an application for review to the Tribunal must be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after notification of the decision (see Regulation 4.31 of the Migration Regulations 1994). The Act makes no provision for an extension of time, whether or not such a result may be harsh or unfair. Nor does the Court have a discretion to extend the time for an application to the Tribunal (see Taylor v MIMIA [2005] FMCA 281; Singh v MIMIA [1999] FCA 353).
The application for review was received by the Tribunal on 16 June 2005. Hence it was received outside the mandatory time limit and was not a valid application under s.412. The Tribunal correctly found that it had no jurisdiction (see s.414). As the Tribunal correctly found that it had no jurisdiction, it was neither necessary nor appropriate for the Tribunal to have regard to the applicant’s substantive claims to fear persecution. Those claims were not matters that could be taken into account by the Tribunal in determining whether or not it had jurisdiction and as the Tribunal had no jurisdiction it was not able or obliged to invite the applicant to a Tribunal hearing. There is no substance in the grounds for review in the application of 24 October 2005.
As I indicated in relation to the applicant’s wife’s application, insofar as the applicant takes issue with the conduct of a migration agent, that is not a matter that establishes that the Tribunal erred in finding that it did not have jurisdiction. Nor is it a matter than can be addressed by this Court in these proceedings, although it may be a matter that the applicant wishes to raise with the Minister.
As no jurisdictional error has been demonstrated in the Tribunal decision or procedures the application must be dismissed.
It is appropriate to make orders amending the title of the respondent and adding the Refugee Review Tribunal as second respondent.

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

Associate:

Date: 15 March 2007