SZIFD v Minister for Immigration
[2006] FMCA 543
•13 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIFD v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 543 |
| MIGRATION – Application for review of a decision of the Refugee Review Tribunal – invalid application – where applicant sought a review out of time – no jurisdiction – where applicant was notified of delegate’s decision by letter dated 21 February 2003 but did not file application for review with Refugee Review Tribunal until 14 September 2005 – no jurisdiction. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.66, 412, 494B, 494C, 494D
NAHI & Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
| Applicant: | SZIFD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 278 of 2006 |
| Delivered on: | 13 April 2006 |
| Delivered at: | Sydney |
| Hearing date: | 13 April 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Mason |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The title of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
I allow eighteen (18) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 278 of 2006
| SZIFD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal made its decision on 20th December 2005. The Tribunal's decision was that it did not have jurisdiction to review the decision of the delegate of the Minister refusing to grant the Applicant a protection visa.
Background
The Applicant had previously entered Australian on a student visa and applied for a protection visa on 19th November 2002. A delegate of the Minister wrote to the Applicant on 21st February 2003 refusing the visa. The Applicant applied to the Refugee Review Tribunal for a review of that decision on 14th September 2005. At that stage the Applicant was in Immigration Detention at Villawood.
The Tribunal wrote to the Applicant on 11th October (see Court Book at p.82), advising that his application had arrived too late. The letter said relevantly:
Our records show the Department notified its decision to refuse your application for a protection visa in a letter dated 21 February 2003. The Department's letter is taken to have been received seven working days after the date of the letter, even if it was not received. Therefore, you are taken to be notified of the decision on 4 March 2003. The last day to apply to the Tribunal was 1 April 2003. The Tribunal did not receive your application until 14 September 2005.
The Applicant wrote back to the Tribunal on 18th October 2005 saying:
I never received the DIMIA decision. My lawyer who was acting on behalf of me was very much responsible to inform me of the situation which he didn't. In the circumstances, I believe I have not been provided with procedural fairness which I deserve. I should be given a chance to put forward my case at RRT. I should be given a fair chance. (See Court book at page 83.)
The Tribunal then prepared a decision which was signed on
20th December 2005 and forwarded to the Applicant at Villawood under cover of a letter dated 3rd January 2006. That decision found that the Tribunal does not have jurisdiction to review the decision refusing to grant the application a protection visa. The Tribunal referred to the legislation; in particular its jurisdiction arises if a valid application is made under s.412 of the Migration Act. The Tribunal must review an RRT reviewable decision under s.414 of the Act.
In respect of an applicant who is not in Immigration Detention on the day in which he or she is notified of the decision, an application for a review must be lodged at a Registry of the Tribunal within a period not later than 28 days after the notification of the decision. (See s.412 (1) (b) of the Act and Reg.4.31 of the Migration Regulations.) A different time limit applies if the Applicant is in Immigration Detention on the day in which he or she is notified of the decision.
The Tribunal noted that the Applicant had nominated that Mr Adrian Joel on the application form had received correspondence on the Applicant's behalf but the space of Mr Joel's postal address was left blank. The Tribunal noted that Mr Joel provided his postal address in the accompanying cover note.
The Tribunal found that the Applicant had provided the name and address of an authorised recipient under s.494D of the Act. The Tribunal found that the decision notice was sent to the authorised recipient, Mr Joel, on 21st February 2003. A copy of the notice was also sent to the Applicant at his residential address but that letter was returned unclaimed.
The Tribunal found that the decision notice was sent within three working days to the Applicant's authorised recipient in accordance with ss.494B (4) and 494D of the Act. The Applicant therefore was taken to have received the notice on 4th March 2003, even though the Applicant claimed that his authorised recipient did not actually notify him.
The Tribunal found that the 28 day period within with the review application must be lodged ended on 1st April 2003. The Tribunal found that as to the Applicant's application for review was not received by the Tribunal until 14th September 2005 the prescribed period had expired. As the application was received outside the mandatory time limit it was found to be not a valid application, the Tribunal therefore has no jurisdiction to review the decision.
The application for judicial review
The Applicant provided an oral submission to the Court. He is a 24 years old citizen of Bangladesh who arrived in Australia as a student at the age of 19. He conceded that his parents, because of his father's political involvement with the previous government in Bangladesh, were happy for him to come to Australia, especially as there has been a change of government. The Applicant described substantive matters relating to the circumstances in Bangladesh which are relevant to a protection visa application.
He described how he had studied at The University of Wollongong and formed a relationship with a young lady. He described how living in Australia and studying was expensive for him and he and the person with whom he lived decided to get married. As he frankly admitted within the three to four months time they realised that they had made the wrong decision and separated.
They were eventually divorced and he moved from Wollongong to Sydney. He found that was a difficult situation and he was not unnaturally depressed as a result of the divorce. He lived in a placed called Middleton House which was more like a hostel and was a most uncomfortable environment for him.
He said that he did not receive the letter sent to him from the Department and was relying on the solicitor who was acting at the time. He indicated that at that period of time it was a very difficult time for him. He was alone in a strange city in a foreign country and none of this was conducive to assisting him with the requirements of coping with immigration law. He pointed out that on both his 20th and 21st birthday he spent the day alone.
He was eventually taken into Immigration Detention from where he made his application. He was released from Detention in November 2005. He had formed another relationship with a person who is a student and is on a limited income. That relationship is a strong relationship and the other person had visited him in Villawood and provided him with support. He hopes that he will marry her in due course but at the moment his finances do not allow him. As it is, he says, going to a doctor is a luxury for him.
He was released from Immigration Detention on the payment of a bond of $5,000.00 which was cash. It was deposited by his partner who is also his guarantor. He indicated that he would not have been in the situation that he was in if he had not been staying at this unfortunate accommodation in Middleton House and if he had been properly represented by his lawyer.
He has had the opportunity of reading through the submissions prepared by counsel for the First Respondent Minister and he indicated that he did not need further the time to go through that document. The Applicant is a well educated young man who is clearly fluent in English.
The respondent submits that there is no jurisdictional error in the decision of the Tribunal. The Respondent submits that the Applicant's appeal is on merits based grounds and that would appear to be the case. The over-arching decision made by counsel for the First Respondent is that the Tribunal acted entirely properly and in accordance with the provisions of the Migration Act which rendered the Tribunal without jurisdiction to review the decision of the delegate because the Tribunal had received the application for review 17 months out of time.
I am referred by the First Respondent to s.412(1)(b) of the Migration Act which when read in conjunction with Reg. 4.31 of the Migration Regulations 1994 provides that:
An application made by an applicant who is not in immigration detention must be made within 28 days of the date of notification.
That is an application for review.
The relevant period of time of course from which the time must be calculated is the time when notification is given of the delegate's decision. The submission is of the two grounds made by the Applicant, ground 1 does not raise a ground of review because it is a request for merits review and the Court has no jurisdiction to entertain such ground in an application for relief under s.39B of the Judiciary Act. I am referred to the decision of the Full Court of the Federal Court in NAHI & Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10].
As to the Applicant's claim that there was a failure to consider his claims on the part of the Tribunal, the ground simply is that the Tribunal had no jurisdiction to consider the claims. As far as the third ground is concerned, an excessive jurisdiction in failing to affirm the decision if it is a merits based claim then for the reason given it cannot succeed.
Also as to the claim that the Applicant was denied natural justice the Respondent submits that that must fail. A claim for a denial of natural justice must involve some failing on the part of the decision maker whilst the Applicant alleges a failure on the part of the solicitor this was not something which the decision maker, the Tribunal, could have been aware. There was nothing to alert the Tribunal that the Applicant had not received a copy of the decision from his migration adviser.
As to the ground that the Tribunal refused to grant his protection visa application without proper grounds and property investigation, on the face of the Tribunal it must fail because the decision goes into the sequence of events relating from the delegate's decision and sets out the appropriate legislative basis. It is not part of the function of the Tribunal to investigate the merits of the Applicant's claim for a protection visa when it is considering whether or not it has jurisdiction to entertain the claim.
Unfortunately for the Applicant the time limited prescribed in s.412 of the Migration Act is mandatory. There is no provision for an extension of time. Whilst the Applicant says that through unfortunate circumstances, including a letter sent to his residential address, which was returned unclaimed and should have been delivered to him, the Court cannot take that into consideration due to the deeming provisions of the legislation.
The Applicant is a person who has been through a very difficult period of time. As I said earlier, he is articulate, intelligent and clearly well educated. It is regrettable through a combination of circumstances he has been unable to have his application for a protection visa considered by the Tribunal. His ability to express himself would no doubt have been impressive as far as the Tribunal Member was concerned. Unfortunately the Court's powers are limited and the Court has no discretion to extend the period of time. As the time limit is mandatory I am obliged to dismiss the application.
There is an application for costs in the sum of $5,000.00. I note that the substantive application was one made after 1st December 2005. I am informed that the Minister's costs amount to $5,000.00 inclusive of counsel's fees. The Applicant was unaware of that obligation or the possibility of a costs order being made in the circumstances. He has not funds, he has no work permit. He was only able to be released from Villawood because his partner raised the sum coincidently of $5,000.00 for his bond to guarantee his release into the community.
He is not able to meet that amount now or in the immediate future. Whilst, as I said, that cannot be taken into account in determining whether a successful party should or should not have the benefit of an order for their legal costs, it is a matter that should be taken into account in my view in assessing this gentleman's capacity to pay. The sum of $5,000.00 is clearly beyond his means and far beyond his means now and in the foreseeable future.
He does have the right of appeal against this decision, although there is only a relatively short time in which to lodge an appeal. He does if he has completed the legal process have an opportunity to make a submission to the minister about exercising ministerial discretion. He is as I said an articulate, well educated and intelligent young man. He seems to be a very personable person and the circumstances that affect him have been unfortunate to say the least.
Unfortunately the Court has no discretion in these matters except in the matter of costs. I will order that the Applicant is to pay the First Respondent's costs in the sum of $5,000.00. In the rather unusual circumstances of this case I allow 18 months to pay.
I note the title of the First Respondent is Minister for Immigration & Multicultural Affairs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 18 April 2006
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