SZICO v Minister for Immigration
[2006] FMCA 435
•30 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZICO & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 435 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa. PRACTICE AND PROCEDURE – Competence of application to the Court – applicant taken to have been notified of RRT decision on 1 December 2005 – asserted date of notification after that date false – no request for an extension of time within 84 days of 1 December 2005 – application incompetent. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.476, 477 Migration Litigation Reform Act 2005 (Cth) |
| WACB v Minister for Immigration (2004) 210 ALR 190 |
| First Applicant: Second Applicant: Third Applicant: | SZICO SZICP SZICQ |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG133 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 30 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 30 March 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondent: | Ms T Wong |
| Solicitors for the Respondent: | Australian Government Solicitor |
INTERLOCUTORY ORDERS
The Court directs that the name of the first applicant is not to appear on the transcript of proceedings.
The application is dismissed as incompetent.
The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in accordance with rule 44.15(1) of the Federal Magistrates Court Rules 2001 (Cth) and Item 1(b) of Part 2 of Schedule 1 to the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG133 of 2006
| SZICO |
First Applicant
SZICP
Second Applicant
SZICQ
Third Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application for an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”). The application was filed on 16 January 2006 and relates to a decision of the RRT handed down on 15 January 2004. The RRT affirmed a decision of a delegate of the Minister not to grant the three applicants a protection visa. It appears that the relevant protection visa claims were made by the first applicant, the applicant husband, and the other applicants were members of his family. Only the first applicant has appeared at today's hearing. In these reasons, references to “the applicant” are references to him.
This matter came before me on 8 February 2006 at which time I made orders for the filing of further material and listed the matter for hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) today. The purpose of today's hearing was to decide whether the application discloses an arguable case that would merit a final hearing.
However, there is a preliminary question which required resolution. That is when was the first applicant notified of the decision of the RRT? Section 477 of the Migration Act 1958 (Cth) (“the Migration Act”), as it applies on and from 1 December 2005, provides that an application to this Court, under s.476 of the Migration Act, in relation to a migration decision, must be made to the Court within 28 days of the actual, as opposed to deemed, notification of the decision. Section 477(2) empowers the Court to extend that time limit by up to 56 additional days if, relevantly, an application for an extension of time is made within 84 days of the actual, as opposed to deemed, notification of the decision.
There are transitional arrangements in relation to decisions notified before the commencement of the Migration Litigation Reform Act 2005 (Cth) (“the Migration Litigation Reform Act”) on 1 December 2005. Item 42 of Part 2 of schedule 1 to the Migration Litigation Reform Act provides that, where proceedings are commenced on or after the commencement date, in relation to a migration decision made before the commencement date, and actual notification of the decision is given before the commencement date, s.477 applies as if the actual notification of the decision took place on the commencement date. In other words, if the applicant was in fact notified of the RRT decision before 1 December 2005, he is deemed to have been actually notified of it on 1 December 2005. If he was actually notified of it after
1 December 2005, then the date of notification in fact is the actual date of notification.
The terms in which the legislation has been framed will give rise to difficult factual questions for the Court to resolve. This places a burden on the Court. It may, in some cases, be difficult, if not impossible, to decide precisely when actual notification of a decision occurred. On the other hand, the Court should not give judicial encouragement to applicants to assert any date of actual notification that they final advantageous. That would undermine the apparent parliamentary intention that judicial review applications be made in a timely fashion.
In this case, the application asserts that the actual date of notification was 13 January 2006. It is necessary to decide whether that assertion is true or false. If it is true, the application was made within the proscribed 28 day time period. If it is false and if the actual notification of the decision was before 1 December 2005, then the applicant will have been deemed to have been notified on 1 December 2005 and the application would not have been made within time.
It appears from my reading of s.477(2) of the Migration Act that if an application for an extension of time is not made within 84 days of the date of notification of the decision, then an application for an extension of time cannot be made. It would now be too late for the applicant to seek an extension of time. No extension of time was sought on the application filed on 16 January 2006.
The Minister has filed a book of relevant documents on 28 February 2006. I received that book of documents as evidence for the purposes of today's hearing. The applicant also gave oral evidence and I accepted as an exhibit (exhibit A1) a written statement made by him on 2 March 2006. He affirmed the truth of that statement under oath. In his statement, the applicant said that he arranged for a friend to write to the Minister for Immigration on 21 April 2004 to seek ministerial intervention in his case on the basis that the RRT had affirmed the decision of the Minister's delegate in the case. The applicant states that at the time that letter was written, he had received a letter informing him that the RRT had made a decision refusing to grant him a protection visa, but he had not received a copy of the decision. The applicant does not, in his statement, elaborate on the assertion or the circumstances in which he purportedly was notified of the RRT decision on 13 January 2006. The letter referred to by the applicant in his statement appears on pages 88 and 89 of the court book. The letter relevantly states that the applicant made a protection visa application, which was "refused by the Department of Immigration which decision was then affirmed by the Refugee Review Tribunal”. It follows, and I find, that the applicant at that time was aware of the terms of the RRT decision, if not the reasons for it.
The applicant was not an impressive witness. His oral evidence, even with the assistance of a Mandarin interpreter, was halting, frequently vague, and at times evasive. He struggled with the question whether he had signed the letter to the Minister dated 21 April 2004. He ultimately said that a friend had signed it for him, but that he had authorised his friend to write and sign the letter. He said that the same friend had completed his review application (court book, pages 64 to 67), although the three applicants appear to have signed the application in Chinese characters.
The applicant was vague on the correspondence he says he received from the RRT. He was adamant that he only received one letter. I took him through the various letters from the RRT to him that appear in the court book. The applicant denied receipt of the letter on pages 68 and 69 of the court book. He also denied receipt of the letter on pages 70 to 71 of the court book. He was less certain about the letter on pages 74 and 75 of the court book and he was less certain still about the letter on page 86 of the court book, which is the letter sent to the applicant notifying him of the RRT decision and purportedly enclosing a copy of it. The applicant says that he does not recall how long the letter was that he received, although he does not think that the RRT decision was enclosed with it.
As best as the applicant can manage, he received the sole item of correspondence from the RRT he acknowledges sometime in 2003 or 2004, which may have been over the summer months of 2003 and 2004. The letters on pages 74 and 75 and 86 of the court book fall within the potential class of letters that the applicant may have received, if that evidence is to be believed. The applicant confirmed that his home address shown on his review application was correct at the time that application was lodged and remained correct on 21 April 2004, when his friend wrote to the Minister. He appears not to have moved within that time. There appears to have been no reason why he should not have received correspondence between those dates. When asked specifically, the applicant could give no explanation why he did not receive correspondence between the time of filing his application and the time he wrote to the Minister.
There is no indication in the court book that the letters appearing on pages 68 and 69, and 70 and 71 of the court book were not received. They do not appear to have been returned to the RRT. The applicant says that the letter he recalls receiving was sent to his home and was not required to be collected from the post office. That suggests that the letter he recalls was sent by ordinary post. There is an indication that the letter appearing on pages 70 and 71 of the court book was sent by registered post. The same indication does not appear in relation to the letter on pages 68 and 69 of the court book. It may well be that the applicant did receive the letter from the RRT dated 23 July 2003.
The applicant was untruthful in his evidence as to what he did with the single letter he acknowledges receiving. He claimed that he had the letter at home but gave it to Mr Zipser, his counsel, presumably for the purposes of these proceedings. The letter was called for and Mr Zipser, after a thorough search of his brief, was unable to produce it.
I conclude that he never had it and that the applicant was untruthful in asserting that he had given it to Mr Zipser. The applicant's untruthfulness on this issue and his vagueness and uncertainty in the great bulk of his evidence causes me to treat his evidence, both oral and in writing, with extreme caution.
It is apparent from the court book on page 87 that the RRT's letter on page 86 of the court book, dated 15 January 2004, was sent by registered post and was returned unclaimed to the RRT. On the basis of that evidence, I find that the applicant did not receive that letter. Nevertheless, it is plain that the applicant was aware of the RRT decision at the time his friend wrote to the Minister on 21 April 2004. What is not clear is whether the applicant was aware of the reasons for the RRT decision.
The only binding authority of which I am aware relating to the question of what constitutes notification of an RRT decision is the decision of the High Court in WACB v Minister for Immigration (2004) 210 ALR 190. That decision at [36] stands for the proposition that in order for notification to occur, the applicant must be informed of both the terms of the decision and the reasons for it. That requirement would be met if the applicant had received a copy of the RRT decision and reasons but generally not otherwise.
There is no doubt in my mind, and I find, that by 21 April 2004 the applicant was aware of the terms of the RRT decision. The question is whether he was aware of the reasons for it. I am prepared to infer that he was. Having become aware by some means or other of the terms of the decision, it would have been a simple matter for the applicant or someone acting upon his behalf to collect a copy of the decision from the RRT. It would have been prudent to do so before requesting ministerial intervention. The applicant denies receiving a copy of the RRT decision until this year, but his evidence is so unreliable that I cannot believe him.
I find that the applicant was notified of the RRT decision, for the purposes of s.477 of the Migration Act, on or before 21 April 2004. It follows that the applicant was actually notified of the decision prior to 1 December 2005 and he is, therefore, deemed by item 42 of Schedule 1 to the Migration Litigation Reform Act to have been actually notified of the decision on 1 December 2005. His application to the Court was made more than 28 days after that date. He would need an extension of time for that application if it were to proceed any further. He did not seek an extension of time within 84 days of 1 December 2005. I find that upon the basis of the terms of s.477(2)(a) of the Migration Act, it is now too late for him to do so. It follows that the application is incompetent and should be dismissed.
I will order that the application be dismissed as incompetent and that the first applicant pay the first respondent's costs and disbursements of an incidental to the application, in accordance with rule 44.15(1) of the Federal Magistrates Court Rules and item 1(b) of part 2 of Schedule 1 to the Rules.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 5 April 2006
5
1
3