SZJMY & Anor v Minister for Immigration
[2008] FMCA 105
•11 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJMY & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 105 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicants in these proceedings are not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and have been given the pseudonyms “SZJMY” and “SZJMZ”. |
| Migration Act 1958 (Cth), ss.91X, 412, 414, 494B(4) Migration Regulations 1994 (Cth), reg.4.31 |
| Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629 Fernando v Minister for Immigration & Citizenship [2000] FCA 324 Murphy v Minister for Immigration & Citizenship (2004) 135 FCR 550 SZJUA v Minister for Immigration & Citizenship [2007] FCA 1184 SZBMF v Minister for Immigration & Citizenship (2005) 147 FCR 485 VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570 |
| First Applicant: | SZJMY |
| Second Applicant: | SZJMZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2947 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 5 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 11 February 2008 |
REPRESENTATION
| Advocate for the Applicants: | The applicants appeared in person with the assistance of a Malayalam interpreter |
| Solicitors for the Respondents: | Ms Mansour of Clayton Utz |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
The application filed on 12 October 2006 is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2947 of 2006
| SZJMY |
First Applicant
And
| SZJMZ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicants are a married couple from India. The primary applicant, the applicant husband, was born in 1955 in Kochuveli, Kerala, India and attended St Mary’s Matriculation Secondary School for nine years. The applicant husband claims to have been involved with the Communist Party of India and fears persecution if he were to return to India.
The applicant wife was born in 1962 in Kadakampally, Kerala, India and does not list any work or educational details on her visa application form. The applicant wife meets the Migration Regulations 1994 (Cth) (“the Regulations”) definition of “member of the family unit”. She makes no separate claims herself.
The applicants applied for a Protection (Class XA) visa on 4 July 2006. A delegate of the first respondent refused to grant the visa on 15 July 2006 and the applicants sought review of the delegate’s decision by the Refugee Review Tribunal (“Tribunal”). The Tribunal’s decision was that it did not have jurisdiction in this matter.
The amended application filed on 17 January 2007 contains five grounds of review:
1. The Refugee Review Tribunal erred in stating that the Tribunal does not have jurisdiction.
2. The Tribunal has merely dismissed the case without considering the reasons for late filing.
3. The Tribunal failed to see that there is nothing expressly mentioned in part 7 of the Migration Act that an application for review of an RRT – reviewable decision must not be taken after 28 days.
4. The Tribunal failed to see that section 412(1)(b) is aimed to control review application not to disappoint the applicant.
5. The Tribunal should have considered the submission made on behalf of the applicants as seen in pages 23 and 24 of the green book.
Consideration
At the first Court date, the applicant husband indicated that they wished to participate in the scheme to give unrepresented applicants in refugee matters independent legal advice. The applicants were allocated a panel advisor and provided with written advice. They were also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 23 January 2007. The applicants complied with this order by the specified date. However, the grounds of the amended application only repeated those contained in the original application and are without particularisation. The applicants confirmed that they had not prepared any written submissions in support of their application.
The applicants arrived in Australia on 12 June 2006 on valid Indian passports and on valid Visitor (subclass 676) visas. The passports were issued in the applicants’ own names and there is no suggestion that these documents were obtained fraudulently or that the accompanying travel documents were not genuine. The applicants applied for a protection visa on 4 July 2006. On 15 July 2006, a delegate of the minister refused to grant the visa. By letter of the same date it sent to their nominated address for receiving mail a copy of the decision. On 28 August 2006, the applicants applied to the Tribunal for a review of the delegate’s decision (CB 49-52).
On 11 September 2006, the Tribunal wrote to the applicants inviting their comments on eligibility issues and in particular that the application to the Tribunal had been made outside the 28 days provided for in the Migration Act 1958 (Cth) and Regulations (CB 56-57).
On 25 September 2006, the Tribunal received a letter from “Immigration and Naturalisation Consultants”, the applicants’ migration agent (CB 58-60). They have not been identified as the applicants’ agent in the Tribunal review application. The letter contains statements which demonstrate a misunderstanding of the law and, in the view of the Tribunal, there was no valid reason for accepting the review application lodged on 28 August 2006.
The Tribunal signed its decision on 29 September 2006 and forwarded this to the applicants by letter dated on 4 October 2006 (reference number 060736790). The Tribunal found that the application had been made outside the mandatory time limits, that it was not valid, and the Tribunal had no jurisdiction to hear the application. The Tribunal made the following findings (CB 67-69):
i)a letter from the Minister’s delegate dated 15 July 2006 was posted on 17 July 2006;
ii)the letter met the requirements of s.494B(4) of the Migration Act 1958 (Cth) (“the Act”) as it was sent within three working days of the date of the document;
iii)the applicants were taken to have received the letter on 26 July 2006, seven working days after the date of the letter;
iv)this was the case even though the letter was returned to the delegate;
v)the last day on which the applicants could make the application to the Tribunal was 23 August 2006;
vi)the application was actually received by the Tribunal on 28 August 2006; and
vii)the submissions provided by the applicants’ migration agent and their parish priest did not provide any basis for accepting the application.
The essential question for this Court is whether the Tribunal had jurisdiction to hear an application for review when the application had not been made within 28 days of notification of the Tribunal reviewable decision, as required by s.412(1)(b) of the Act and reg.4.31(2)(b) of the Regulations.
The ordinary meaning of s.412 is that if an application is not made in accordance with that section, it is not a valid application and therefore not one which the Tribunal has jurisdiction to review under s.414. The section contains no discretionary power to extend the time specified in the joint provisions of s.412(1)(b) of the Act and reg.4.31(2)(b) of the Regulations. Sections 412 and 414 clearly stipulate that the making of an application within the prescribed time is an essential preliminary requirement to the exercise of the Tribunal’s function.
Regulation 4.31 of the Regulations prescribes the period within which an application for review of a Tribunal reviewable decision must be made. That period is 28 days after an applicant has been notified of the relevant decision. Section 412(1)(b) is a mandatory requirement and strict compliance is necessary.
The mandatory nature of the time limits and the exercise of the Tribunal’s jurisdiction is well-established: Fernando v Minister for Immigration & Citizenship [2000] FCA 324; VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570 at [33]; Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629 at [24]; SZJUA v Minister for Immigration & Citizenship [2007] FCA 1184. The deemed notification of the delegate’s decision is conclusive: Murphy v Minister for Immigration & Citizenship (2004) 135 FCR 550 at [69]. This remains to be the situation where a notification letter is returned to sender: SZBMF v Minister for Immigration & Citizenship (2005) 147 FCR 485.
It has been brought to my attention in the written submissions provided by Ms Mansour that the Tribunal made a factual error in finding that seven working days after the date the document was 26 July 2006. The letter was dated 15 July 2006 (a Saturday). The provision clearly states that the document is taken to have been received seven working days after the date of the document, not after the date the document was sent. Ms Mansour submits, however, that nothing turns on this error because the time given by the Tribunal was more generous than that required by the Act and Regulations. The filing of the Tribunal application based on a proper application of the Act and Regulations still fell outside that prescribed time limit.
Conclusion
I am satisfied that the Tribunal validly declined jurisdiction upon finding that the application for review was lodged outside the inflexible 28 day time limit prescribed by s.412(1)(b) of the Act and reg.4.31 of the Regulations. The Tribunal calculated this period to have commenced on a date seven working days after the date of the delegate’s decision. The notification of the decision was sent by registered post on 17 July 2006 to the applicants at the address they gave for correspondence in their protection visa application. The delegate’s decision was dated on a Saturday. The next valid working day was 17 July 2006 and if the calculation had been correctly performed, the valid period for lodging an application expired on 24 August 2006. The applicants did not file the Tribunal application until 28 August 2006 which is outside the mandatory time limit. In the circumstances, the application for judicial review of the Tribunal’s decision should be dismissed with costs.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 12 February 2008
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