SZJDF v Minister for Immigration

[2007] FMCA 296

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJDF & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 296

MIGRATION – Review of decision of Refugee Review Tribunal – Tribunal found that it had no jurisdiction as the review application to it had been filed late – deemed receipt of notification of the delegate’s decision – whether the notification was despatched within three working days of the date it bore considered.

Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth), ss.52, 66, 412, 414, 476, 494B, 494C

Chung v Minister for Immigration [2006] FMCA 624

Fernando v Minister for Immigration [2000] FCA 324
Murphy v Minister for Immigration [2004] FCA 657
SZBWD v Minister for Immigration [2006] FCA 253
Vean of 2002 v Minister for Immigration [2003] FCAFC 311

First Applicant: SZJDF

Second Applicant: SZJDG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2124 of 2006

Judgment of: Driver FM

Hearing date: 9 March 2007

Delivered at: Sydney

Delivered on: 9 March 2007

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Ms Z McDonald
DLA Phillips Fox

ORDERS

1. The Court directs that the title of the first respondent be amended to the Minister for Immigration & Citizenship.

2. The application is dismissed.

3. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,700.

4. The Court directs that the applicants pay the setting down fee of $419 due on 21 March 2007 within 14 days of today’s date or, alternatively, seek a waiver of that fee within the same period.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2124 of 2006

SZJDF

First Applicant

SZJDG

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal found that it had no jurisdiction to deal with the review application made to it. It is unclear whether the decision was handed down. It may not have been, on the basis that s.430A of the Migration Act 1958 (Cth) (“the Migration Act”) does not apply where the Tribunal has not embarked on a review, due to a lack of jurisdiction. By letter dated 22 September 2006 the applicant was advised of the Tribunal decision, which was signed on 20 September 2006.

2. The background facts relevant to this matter are conveniently summarised in written submissions filed on behalf of the Minister on 2 March 2007.  I adopt as background with minor amendments for the purposes of this judgment paragraphs 1 through to 7 of those written submissions:

   This is an application filed in the Federal Magistrates Court[1] under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) (“the Migration Act”) seeking relief in the form of constitutional writs against the decision of the Tribunal.

   [1] on 3 August 2006

   The applicant's claims

   The applicants, both citizens of India, are husband and wife.  Only the husband (the applicant) made claims under the Refugee Convention, his wife relying on her membership of his family. 

   The applicant claimed to fear persecution from the leaders of a local branch of the Congress Party and the police, who were under their influence, because of his political opinion.  His claims were set out in a statement accompanying his protection visa application.

   Delegate's decision

   The delegate refused the applicant's application on 29 March 2006 and a letter dated the same day was sent to the applicant notifying him of the decision.[2] The letter was sent to the address provided by the applicant on his protection visa application.[3]

   [2] court book (CB) 45-56

   [3] CB 12, see questions 14 and 17

   In a letter dated 24 May 2006, the applicant claimed to have notified the department of his new address on 10 May 2006.[4] The departmental file contains a change of address form signed by the applicant and it is indicated that this document was received on 17 May 2006. [5]

   The Tribunal’s decision

   The Tribunal found that it did not have jurisdiction as the application for review was lodged outside the prescribed time period. 

   The Tribunal found that:

   a)The decision notification letter was dispatched within 3 working days of the letter and the latest the letter could have been dispatched was the 30 March 2006. This was on the basis of the annotations on the envelope that the letter was first left at the applicant's address on 30 March 2006 and a final notice was left on 3 May 2006.

   b)The decision notification letter was dispatched to the correct address. There was no evidence on the department's file of a migration agent or an authorised recipient associated with the application. Further, the department was notified of the applicant's new address after the decision had been notified.

   c)The applicant was taken to have received notification on 7 April 2006.

   d)The applicant had 28 days, being until 5 May 2006 to apply to the Tribunal for review of the decision.

   e)The applicant did not lodge an application for review with the Tribunal until 5 June 2006. 

   [4] CB 59

   [5] CB 57-58

3. The proceeding in this Court began with a show cause application filed on 3 August 2006, more than a month before the Tribunal decision was made. I dealt with the application at a show cause hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) on 24 October 2006. Order (1) made by me on that day was a declaration that the application filed on 3 August 2006 was to be treated as an application to review the decision of the Tribunal notified on 22 September 2006. I also noted that the application would have been filed within the time for seeking an extension of time if it had been filed on the day of that hearing.

4. It was apparent at that time that, although the applicant appeared to be seeking review not only of the Tribunal decision but also of the delegate’s decision preceding it, this Court had no jurisdiction to deal with the delegate’s decision[6].  The Court’s jurisdiction is limited to dealing with the decision of the Tribunal on the question of its own jurisdiction.  It was also apparent at the show cause hearing that there was a jurisdictional fact to resolve.  The jurisdictional fact is whether a letter notifying the applicant of the decision of the delegate was despatched to him within three working days of the date of the letter.  On 24 October 2006 I required the Minister to show cause why relief should not be granted in relation to that issue.

   [6] Section 476(2) of the Migration Act

5. The significance of the issue derives from the Migration Act and Regulations in relation to prescribed methods for the despatch of correspondence and the deemed receipt of correspondence. If the letter was despatched within three working days of the date it bore then the Minister was entitled to rely on the deemed receipt provisions of the Migration Act and the Tribunal was correct in finding that it lacked jurisdiction. On the other hand, if the letter was not despatched within time then the Minister would not have been so entitled and the Tribunal would have been wrong in finding that it lacked jurisdiction.

6. I gave the parties the opportunity to file additional evidentiary material and legal submissions.  The applicants continue to rely upon their show cause application and an affidavit by the first applicant supporting that application.  In that affidavit the first applicant deposes as to the circumstances in which he missed the opportunity to apply to the Tribunal in a timely fashion for review of the delegate’s decision.  I received that affidavit as evidence for the purposes of today’s hearing and the first applicant was not required for cross-examination. 

7. The other evidence I have before me is the court book filed on 12 October 2006 and the affidavit of Terry Lew filed on 22 December 2006.  I enquired of the first applicant whether he disputed the evidence of Mr Lew and he told me that he did not.  Mr Lew was not required for cross-examination. 

8. The letter in issue appears on pages 45 and 46 of the court book.  The letter is dated 29 March 2006.  Annexure A to the affidavit of Mr Lew establishes to my satisfaction that the letter was in fact created on 29 March 2006.  Annexure B to Mr Lew’s affidavit establishes to my satisfaction that the letter was delivered into the hands of Australia Post for delivery by registered post on the same day.  The letter was directed to the applicants at their address for service nominated in their visa application.  It follows that the issue concerning the jurisdictional fact is resolved in favour of the Minister.

9. The legal consequences of that finding of fact are accurately and adequately dealt with in the Minister’s submissions.  I agree with and adopt for the purposes of this judgment, with necessary amendments, paragraphs 10 through to 16 of the Minister’s outline of written submissions.

10. Section 66(1) of the Act provides that when the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. Regulation 2.16 provides that for the purposes of s.66(1) of the Act, the Minister must notify an applicant of a decision by one of the methods specified in s.494B.

11. Section 494B(4) provides that a method in which the Minister can give a person a document is by sending it within 3 days of the date of the letter to the applicant's last address for service or last residential or business or address provided to the Minister for the purpose of receiving documents.

12. Section 494B(4)(a) of the Act was complied with as the decision and accompanying letter were dispatched on 29 March 2006, within 3 days of the date of the documents.[7]

    [7] See Annexures A and B of Affidavit filed on behalf of the first respondent on 22 December 2006

13. Further, s.494B(b) and (c) of the Act was complied with as notification of the decision was sent by registered post to the last residential address notified by the applicant[8]. Included with the decision was information about review rights, pursuant to s.66(2)(ii)[9].  The applicant claims that his migration agent did not inform him of the decision however, the applicant stated that he did not want to authorise another person to act on his behalf in his protection visa application[10]. Sections 52(3A) and 52(3B) place an obligation on the applicant to advise the Minister the address in which they intend to live while the application is being dealt with and s.52(3B) provides that an applicant is to notify the Minister if they change their address for 14 days or more.

    [8] CB 12, questions 14 and 17

    [9] CB 45 -56

    [10] CB 8, see question 15

14. The applicant’s change of address form was not submitted until 17 May 2006[11] which was after the date of the delegate's decision.

    [11] CB 57-58

15. The effect of compliance with s.494B allows for reliance on the deemed notification provisions set out in s.494C(4)(a) of the Act. Accordingly, the applicant is deemed to have been notified after 7 working days of the date of the document, being 7 April 2006. This is so, even though the letter was returned unclaimed:[12] see Murphy v Minister for Immigration [2004] FCA 657 at [69] per Spender J.

    [12] CB 60

16. The Tribunal correctly decided that it did not have jurisdiction. The Tribunal’s jurisdiction arises by virtue of s.414 when a valid application is made under s.412 of the Act. In order to be valid, an application must be lodged within 28 days of notification of the decision, pursuant to s.412(1)(b) and r4.31.

17. The applicant had 28 days, after he was deemed to be notified, to apply for review to the Tribunal. The last day to file his application was

    
    

    5 May 2006. The application for review was received by the Tribunal on 5 June 2006, approximately 1 month out of time.[13]

    [13] CB 64-67

18. The Tribunal has no jurisdiction to entertain an application made out of time as ss.412 and 414 of the Act clearly stipulate that the making of an application within the prescribed time is an essential preliminary to the exercise of the Tribunal’s jurisdiction, see Fernando v Minister for Immigration [2000] FCA 324 as per Heerey J at [31], Finkelstein J at [44] and Dowsett J at [55].

19. The terms of s.412(1)(b) are clear and the Tribunal does not have power to override the time limitations prescribed by s.412(1)(b): see Vean of 2002 v Minister for Immigration [2003] FCAFC 311 per Gray, Whitlam and Mansfield JJ.

20. The applicants are concerned that the outcome for them is an unfair one.  The undisputed evidence of the first applicant indicates that the circumstances were unfortunate.  If the Tribunal enjoyed the power to extend time for applications to it in the exercise of discretion it is entirely possible that that discretion might have been exercised in the applicants’ favour.  Unfortunately, the Tribunal does not have that discretion.  I, and other judicial officers, have on a number of occasions expressed the view that the Tribunal should enjoy that discretion[14].  That is a matter for Parliament.

    [14] see, for example Chung v Minister for Immigration [2006] FMCA 624 at [7]

21. The curious consequence is that in situations like this the only Court which can deal in a useful way with the substance of the dispute between the parties, namely, whether a lawful decision refusing a protection visa was made, is the High Court of Australia[15]. The High Court’s jurisdiction to review not only decisions of the Tribunal but also decisions of delegates derives from the Constitution and cannot be excluded by statute. It is a matter for the applicants whether they wish to seek to agitate any question concerning the validity of the delegate’s decision before the High Court. That is beyond the scope of this proceeding.

    [15] SZBWD v Minister for Immigration [2006] FCA 253 at [12]

22. I find that the decision of the Tribunal is free from jurisdictional error. 
    I will accordingly dismiss the application. 

23. Costs should follow the event in this case.  The Minister seeks an order for costs fixed in the sum of $4,700 in consequence of the dismissal of the application.  The applicant refers to his impecuniosity but that is not a reason for the Court to refrain from making a costs order.  The question for the Court is whether the costs sought have been properly and reasonably incurred.  The Minister has been put to considerable trouble to respond to the application.  In particular, in addition to preparing the court book and written submissions, the Minister has had to produce evidence verifying timely despatch of the notification letter.  The costs sought by the Minister are less than the costs which would be payable pursuant to the Federal Magistrates Court’s scale in a migration proceeding.  I am satisfied that costs of not less than $4,700 have been properly and reasonably incurred on behalf of the Minister when assessed on a party and party basis.  I will order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application fixed in that amount.

24. There are two additional matters.  The Minister’s title on the application needs to be corrected.  I will direct that the title of the first respondent be amended to the Minister for Immigration and Citizenship.  The other issue concerns payment of a setting down fee in this matter.  I will direct that the applicants pay the setting down fee of $419 due on 21 March 2007 within 14 days of today’s date or alternatively seek a waiver of that fee within the same period.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  15 March 2007