SZHQH v Minister for Immigration

[2006] FMCA 949

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHQH v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 949

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant – applicant is a citizen of the Peoples Republic of China – well-founded fear of persecution – Falun Gong practitioner jurisdiction – application out of time – not a valid application – no jurisdiction.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.66, 412, 474, 494B, 494C, 494D

Applicant: SZHQH

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3404 of 2005

Judgment of: Scarlett FM

Hearing date: 22 June 2006

Date of Last Submission: 22 June 2006

Delivered at: Sydney

Delivered on: 22 June 2006

REPRESENTATION

The Applicant: Appeared in person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.

2. The application is dismissed.

3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,000.00 and I allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3404 of 2005

SZHQH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

1. This is an application for review of a decision of the Refugee Review Tribunal made on 26^th October 2005.  The Tribunal decided that it did not have jurisdiction to review the delegate's decision refusing to grant the applicant a protection visa.  The applicant applied to the Department of Immigration & Multicultural & Indigenous Affairs, as it then was, for a protection visa on 19^th April 2002.  He sought a visa on the ground that he was a Falun Gong practitioner and feared persecution for that reason if he were to return to his home country, the People's Republic of China.  A delegate of the Minister refused that application on 31^st May 2002.  The delegate forwarded a copy of that decision under cover of a letter dated that same date to the applicant at his last known address.  The applicant did not seek a review of the decision of that decision with the Refugee Review Tribunal until he lodged an application on 14^th September 2005.  The Tribunal considered the question of whether it had jurisdiction.  The question of jurisdiction would depend on whether a valid application had been made for review of the delegate's decision.  The Tribunal formed a preliminary view that it did not have jurisdiction because the application was received out of time.  The Tribunal wrote to the applicant on 11^th October 2005 inviting submissions on that issue and the applicant replied on 24^th October.  In that letter he said:

   The reason why I did not lodge my application on time was because I had not received the decision letter from DIMIA.  I did not know that I should do the review until recently I heard it from my friend.  I sincerely hope that I can have a chance to have my application to be reviewed at the Refugee Review Tribunal.

2. The Tribunal considered those written submissions and then proceeded to make the decision. The Tribunal was satisfied that the contents of the delegate's decision notice complied with the requirements of s. 66(2) of the Migration Act and noted that the notice was dated 31^st May 2002. The Tribunal noted that the Department's file records indicated that the applicant had given the Minister written notice of the name and address of an authorised recipient under s.494D of the Act and the decision notice was sent by registered mail to that authorised recipient on 31^st May 2002. A copy sent to the applicant at his residential address was retuned unclaimed. The Tribunal found that the decision notice was sent within three working days to the authorised recipient in accordance with ss.494B (4) and s.494D of the Act. The applicant therefore is taken to have received the notice on

   
   

   12^th June 2002.  The Tribunal held that the 28‑day period within which the review application must be lodged ended on 10^th July 2002 and that, as the application was not received until 14^th September 2005, the prescribed period had expired and that the time limit is a mandatory time limit.  Accordingly, the Tribunal held that the application was not a valid application and the Tribunal had no jurisdiction to review the delegate's decision.

3. The applicant sought a review of that decision from this Court and in an amended application he sets out four grounds:

   a)"The Department of Immigration & Multicultural & Indigenous Affairs failed to notify me that the decision of my application for a protection visa."

   b)The Department failed to notify the applicant that the agent's registration had been suspended.

   c)The Department should notify him of the decision of his application for a protection visa again so that he had the option to lodge his application to be reviewed at the Refugee Review Tribunal or not.

   d)He said:

   My friends have had the same situation and were detained by the DIMIA officers, were later released from detention because of the same situation as mine.

4. Dealing with those four grounds, first of all, the applicant alleges that the first respondent Minister failed to notify him of the decision of the delegate. Subsection 66(1) of the Act requires the Minister to notify an applicant of a decision to refuse a visa in the prescribed way. Reg 2.16(3) prescribes for the purposes of s.66(1) that the applicant be notified of the decision by one of the methods specified in s.494B of the Act. Sub-section494B(4) provides the decision may be sent within three working days of the date of the document by prepaid post or other prepaid means to the last address for service provided to the Minister. Sub-section 412(1) (b) of the Act and reg 4.31 of the Migration Regulations 1994 require that an application for review of an RRT reviewable decision must be given to the Tribunal within the prescribed period, which is a period ending not later than 28 days after the notification of the decision.

5. The notification of the delegate's decision was sent on 31^st May 2002. The notification is clearly within the three days referred to provided by s.494B (1). Sub-section 494C (4) (a) of the Act provides that if a document is given to a person at an address in Australia by a method in sub‑s.494B (4), the person is taken to have received the document seven working days after the date of the document. Thus there was no error to the Tribunal finding that the applicant was taken to have received the delegate's decision seven working days after 31^st May 2002, which is 12^th June 2002.  The 28-day period provided under sub‑s.412(1) (b) of the Act for lodging an application for review commenced to run on 12^th June 2002 so the application which was lodged on 14^th September 2005 was outside the period by more than three years.  There is no evidence on which I can find that the applicant made his application to the Tribunal within time.  Unless it is filed within time, the Tribunal has no jurisdiction to review the decision and there is no jurisdictional error.

6. The applicant did allege that the first respondent failed to notify him that his agent's registration had been suspended.  It has been put to me by the solicitor for the first respondent, Ms Bautista that the agent's registration had not been suspended at any time, but in any event that does not affect the applicant's claim.  It does not assist the applicant because even if either the Department or the Tribunal had been aware of any suspension of the applicant's agent's registration, there was no obligation to notify the applicant of that fact.

7. The applicant in ground 3 seeks that the Department should renotify the applicant so the time can start again.  Regrettably for the applicant, the first respondent Minister has not decided to do that and there is indeed no obligation on the first respondent to renotify the applicant.

8. The fourth ground, that the applicant's friends who are in the same situation were detained and were later released from detention does not, with respect, affect the applicant's situation in any way.  He is not in detention and the situation relating to other people being released from detention does not assist this applicant.

9. Overall, there is no jurisdictional error. It must be accepted that the time limit prescribed in s.412 and the regulation is a mandatory time limit. The Tribunal has no power to vary that time limit.

   
   

   Accordingly, as there is no jurisdictional error, the Tribunal's decision is a privative clause decision as defined in s.474 of the Migration Act and it attracts the protection of that section. Accordingly, the application will be dismissed.

10. There is an application for costs in the sum of $3,000.00.  I see no reason why the usual rule that costs follow the event should not be followed in this case.  The applicant indicates that he wishes to appeal and of course that is his right to do so.  It does not affect whether or not I should make a costs order.  The amount of $3,000.00 is sought and in my view that is an appropriate figure.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  30 June 2006