SZIHN v Minister for Immigration
[2008] FMCA 153
•15 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIHN & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 153 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether the Applicant lodged his application with the Refugee Review Tribunal in accordance with s.412 of the Act – whether the Minister gave the Applicant a copy of the Delegate’s decision in accordance with s.424B of the Act – whether the Applicant provided a residential address for the purpose of receiving documents. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.52; 52(3A); 412(1)(b); 494B; 494B(3); 494B(4); pt.8 div.2 Migration Regulations 1994 (Cth), reg.4.31(2)(b) |
| First Applicant: | SZIHN |
| Second Applicant: | SZIHO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1094 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 6 February 2008 |
| Date of last submission: | 6 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2008 |
REPRESENTATION
| Counsel for the applicant: | Mr L. Karp |
| Counsel for the respondent: | Mr D. Godwin |
| Solicitors for the respondent: | Ms L. Buchanan, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1094 of 2007
| SZIHN |
First Applicant
| SZIHO |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants claim to be entitled to a protection visa on the basis that they have a well-founded fear of persecution from the authorities in India by reason of their failure to pay bribes to police in India for protection from criminals who sought to extort their business.
The applicants make their application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 6 March 2007 affirming a decision of a delegate of the First Respondent (“the Delegate”) to refuse the applicants the protection visa.
The first named applicant is the husband of the second named applicant (“the Applicant”). The second named applicant’s application is dependent on the outcome of the application of the Applicant.
Counsel for the First Respondent has raised a preliminary issue. Namely, that there is no utility in this Court proceeding to hear the Applicant’s application on the basis that the Applicant’s application for review by the Tribunal of the Delegate’s decision was not lodged in accordance with the relevant time limits and therefore the Tribunal did not have power to entertain the application for review.
It is common ground that the decision of the Delegate refusing the applicants a protection visa was made on 6 January 2006 and sent to the Applicant at the Applicant’s residential address on 2 May 2006.
Section 412(1)(b) of the Act requires that an application be given to the Tribunal within the “prescribed period”, being 28 days after notification of the decision (reg.4.31(2)(b) of the Migration Regulations 1994 (Cth) (“the Regulations”)).
It is common ground that, pursuant to the Act and the Regulations, the last date upon which the Applicant could have lodged an application for review of the delegate’s decision with the Tribunal was 8 June 2006. The applicants did not file their application for review until 15 September 2006, plainly outside the mandatory time limit.
Counsel for the Applicant referred the Court to s.494B(4) of the Act. That section is in the following relevant terms:
“Coverage of section
(1) For the purposes of provisions of this Act or the regulations that:
(a) require or permit the Minister to give a document to a person (the recipient ); and
(b) state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.
Giving by hand
(2) One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.
Handing to a person at last residential or business address
(3) Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:
(a) is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and
(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of the Minister dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.
Transmission by fax, e‑mail or other electronic means
(5) Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) e‑mail; or
(c) other electronic means;
to the last fax number, e‑mail address or other electronic address, as the case may be, provided to the Minister by the recipient for the purposes of receiving documents.
When the Minister hands a document by way of an authorised officer
(6) For the purposes of sections 494C and 494D, a reference in those sections to an act of the Minister includes, if the act is of a kind referred to in subsection (2) or (3) of this section, a reference to an act of the Minister by way of an authorised officer.”
Counsel for the Applicant submitted that s.494B(4) of the Act permits the Minister to give a document to the Applicant by prepaid post sent, relevantly, to the last residential address provided to the Minister by the Applicant for the purposes of receiving documents.
Counsel for the Applicant submitted that the residential address provided by the Applicant in the Form 866C of his application for a protection visa is provided in response to question 14 which states “Your current residential address in Australia. Note: a Post Office box address is not acceptable as a residential address. Failure to give a residential address will result in your application being invalid.” In response to question 17, “Your current postal address in Australia”, the Applicant provided a post office box address.
Counsel for the Applicant submitted that, in the circumstances, the residential address provided by the Applicant was not provided to the Minister by the Applicant for the purposes of receiving documents. Rather, it was provided because the Applicant was obliged to provide his residential address in accordance with s.52(3A) of the Act.
Relevantly, s.52 of the Act is as follows:
“(1) A visa applicant or interested person must communicate with the Minister in the prescribed way.
(2) The regulations may prescribe different ways of communicating and specify the circumstances when communication is to be in a particular way. For this purpose, a way of communicating includes any associated process for authenticating identity.
(3) If the applicant or interested person purports to communicate anything to the Minister in a way that is not the prescribed way, the communication is taken not to have been received unless the Minister in fact receives it.
(3A) A visa applicant must tell the Minister the address at which the applicant intends to live while the application is being dealt with.
(3B) If the applicant proposes to change the address at which he or she intends to live for a period of 14 days or more, the applicant must tell the Minister the address and the period of proposed residence.
(3C) If, in accordance with the regulations, 2 or more non‑citizens apply for visas together, notifications given to any of them about the application are taken to be given to each of them.
Note 1: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
Note 2: If a person gives the Minister notice under section 494D, documents that would have been given to the person will be given to the person's authorised recipient.
(4) In this section, interested person means a person who wants, or who is requested, to give information about the applicant to the Minister.”
Counsel for the First Respondent submitted that s.52 and the Notes thereto make it clear that a purpose for the provision of the Applicant’s residential address is for receiving documents from the Minister in accordance with s.494B of the Act.
Section 494B(4) does not require that the purpose for receiving documents be the sole purpose for the provision of the last residential or business address.
Further, counsel for the First Respondent submitted that, if the Applicant’s last residential address provided to the Tribunal must have been for the sole purpose of receiving documents is correct, then s.494B(3), which provides for personal service, cannot be effected at the last residential address provided to the Minister by an applicant unless the address is provided for the purpose of giving documents. Clearly, that cannot be the intention of the legislature. Moreover, there is nothing in Form 866C of the protection visa application to suggest that a purpose for providing the Applicant’s residential address does not include the receipt of documents.
In the circumstances, the Minister complied with the legislative scheme in giving notification to the Applicant of the Delegate’s decision and the Applicant failed to comply with the prescribed time frame.
Accordingly, the Tribunal had no jurisdiction to entertain the Applicant’s application for review.
Counsel for the Applicant conceded that, if the Court’s view was that there had been compliance with the legislative scheme in delivering notification of the Delegate’s decision to the Applicant, then there would be no utility in the Applicant proceeding with his application before this Court and the proceeding should be dismissed.
Accordingly, the proceeding before this Court is dismissed with costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 15 February 2008
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