SZJBQ v Minister for Immigration
[2007] FMCA 196
•8 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJBQ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 196 |
| MIGRATION – Failure to lodge application for review with the Refugee Review Tribunal within 28 days – no power for Tribunal to extend time for lodging. |
| Migration Act 1958 (Cth), ss.412(1)(b), 494(c) |
| Applicant: | SZJBQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1977 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 8 February 2007 |
| Date of last submission: | 8 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2007 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the Respondent: | Ms. S. Burnett of Clayton Utz |
ORDERS
The application is dismissed.
The Court orders that the applicant pay the costs of the first respondent, fixed in the amount of $3,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1977 of 2006
| SZJBQ |
Applicant
And
| MINISTER OF IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 and Part 8, Division 2 of the Migration Act 1958, for judicial review of a decision of the Refugee Review Tribunal dated 3 July 2006 and handed down on 5 July 2006.
The applicant was born on 26 June 1963 and claims to be from the People's Republic of China ("PRC") and of Han ethnicity. The applicant claims that prior to arriving in Australia he was employed as a clerk. The applicant has a wife and son who remain in the PRC. The applicant arrived in Australia on 24 February 2002, having legally departed from the PRC on a passport issued in his own name and a class UC temporary business visa.
On 19 March 2002 the applicant lodged an application for a protection class 10A visa with the Department of Immigration and Multicultural Affairs. In his protection visa application, the applicant claimed that he feared persecution by PRC authorities because he is a Falun Gong practitioner. The applicant claimed that he was arrested and beaten by police and forced to attend a re-eduction class for one month.
On 13 June 2002 a delegate of the first respondent refused the applicant's application for a protection visa, on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugee Convention, as amended by the Refugee Protocol.
On 29 May 2006 the applicant lodged an application for a review of the delegate's decision by the Tribunal. In a statement accompanying his application for review, the applicant claimed that on 25 August 1999 he was arrested and put into a labour camp for half a year, tortured, beaten and forced to write a statement that he has given up his belief of Falun Gong.
On 3 July 2006 the Tribunal found that it had no jurisdiction to review the delegate's decision, because the applicant's application for a review was lodged outside the prescribed period.
On 18 July 2006 the applicant filed an application in this Court, seeking judicial review of the Tribunal's decision.
In reaching its decision, the Court has had regard to the submissions put to it and to the material filed in the application to the Court.
The Court finds that the date of the decision of the delegate was 13 June 2002 (Court Book “CB” 34-37). The Court finds that the applicant was notified of that decision by post on 13 June 2002 (CB 32-33). That letter was posted to him at his notified address, as appears in the application (CB 13). The applicant has nominated an authorised recipient to receive communications on his behalf (CB 29).
Section 494D of the Migration Act 1958 provides that:
If the minister gives a document to the authorised recipient, the minister is taken to have given the document to the applicant.
Page 33 of the court book shows that a copy of the notification to the applicant was sent to the authorised recipient.
The date the applicant lodged the application for review was 29 May 2006 (CB 28-32). It is stamped with a stamp dated 29 May 2006. Pursuant to regulation 4.31(4), the application is taken to be lodged when received by the registry. It was received on 29 May 2006, which is a delay of just under four years from the date of notification of the decision to the applicant and to his agent.
Section 412(1)(b) requires an application for review of an RRT‑reviewable decision to be given to the Tribunal within the prescribed period, being a period ending not later than 28 days after the notification of the decision. Regulation 4.31(2)(b) describes that period as 28 days. There is no provision in the Migration Act for an extension of time to be granted by the Tribunal. Regulation 4.31(2) provides that the period for lodging an application commences from the day on which the applicant is notified of the decision.
Leaving seven days for receipt of mail, the Court finds the applicant and his authorised representative had notification of the decision, and of the 28-day period for seeking review, by 20 June 2002. The Court refers to s.494(c) of the Migration Act as grounds for that finding.
The Tribunal decided that:
As the application for review was received outside the mandatory time limit, it is not a valid application, and the Tribunal has no jurisdiction to review the delegate's decision (CB 64).
The decision of the Tribunal is that the Tribunal does not have any jurisdiction in the matter (CB 65).
Having regard to all the material filed in the matter and to the submissions made to the Court, the Court finds that there was no denial of natural justice and that no error of law was made by the Tribunal. The application to the Court is dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Turner FM.
Associate: Sarah James
Date: 23 February 2007
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