SZJOH v Minister for Immigration
[2006] FMCA 1890
•15 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJOH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1890 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicants protection visas. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.412 |
| Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 324 Vean of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 311 SZHQH v Minister for Immigration & Anor [2006] FMCA 949 SZECC v Minister for Immigration [2004] FMCA 1031. |
| Applicant: | SZJOH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3090 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 December 2006 |
| Date of Last Submission: | 15 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 15 December 2006 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms McDonald |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The First Applicant is appointed the litigation guardian of the Third Applicant.
The Application is dismissed.
The First and Second Applicants are to pay the First Respondent's costs fixed in the sum of $2,700.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3090 OF 2006
| SZJOH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal finding that the application for review of a delegate's decision lodged by the Applicants cannot be reviewed because the Tribunal has no jurisdiction to do so.
The Tribunal sets out the facts at page 96 of its decision in this way:
The applicants applied to the Department of Immigration & Multicultural Affairs (the Department) for Protection (Class XA) visas on 18 January 2006. The delegate decided to refuse to grant the visas on 4 April 2006 and notified the applicants of the decision and their review rights by letter dated 4 April 2006. The applicants faxed a partially legible copy of their application for review to the Tribunal on 22 May 2006 and the Tribunal received the application via post on 23 May 2006.
The Tribunal found that it did not have jurisdiction to review the application under the provisions of s.412 of the Migration Act because the application had been lodged out of time. The Tribunal found that the prescribed period set out under s.412(1)(b) in r.431(2)(b) of the Migration Regulation, namely 28 days applied, and the Tribunal found that the application for review was not received by the Tribunal until at least 22nd May 2006 after the prescribed period had expired. Accordingly, the Tribunal found that it did not have jurisdiction in the matter.
The Applicant has commenced proceedings in this Court claiming that the Tribunal was in error. The grounds given in the amended application filed on 4th December 2006 relevantly are as follows:
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 s.412(1)(b) is aimed to control review application not to disappoint the applicant.
5.The Tribunal should have seen the reasons and accepted the application.
6.The Tribunal failed to note that it is not the fault of the applicants for the delayed filing. The agent who took up the matter has caused the confusion. Therefore, if the applicant is punished for that, the applicant will be put to suffering.
7.If the Tribunal is mainly concerned with the point whether the Department of Immigration did not properly notify the decision, the Tribunal must also see whether the agent properly notified the applicant. This has not been done by the Tribunal.
The Applicant has not filed any written submissions but in oral submissions has referred the Court to a letter, copy of which appears at page 81 of the Court Book which is dated 23rd May 2006. In that letter the Applicant, or rather the First Applicant, said:
On 26/04/06 I have sent my RRT application by ordinary post to your office. Since then I have not received any letter from your office. After I spoke to your staff they told me that they cannot find it out my application, then I have faxed my RRT application copy to your office.
I am living with my wife and my 2 years old son and I am facing financial hardship. Because of this situation I could not afford to send my RRT application by Express registered post. Post office staff told me that they cannot locate my post until there is registered post bar code number on my post.
I am extremely worried about these things because of I may lose my appeal rights as well as I may be lose my work permits. Please kindly reconsider my situation and my family conditions.
A further copy of that letter appears on page 82 of the Court Book. The Applicant told the Court that he gave the case to his migration agent who did not submit his application in time. He has not, at this stage, made any complaint about the agent to the Migration Agents Registration Authority. The Applicants migration agent one V Jayakumar forwarded a letter to the Tribunal dated 19th September 2006. A copy of that letter appears at pages 89 to 91 of the Court Book. At paragraph 10 of the letter which appears on page 90, the migration agent gives this explanation:
My client did not understand the RRT information brochure. Even though the brochure contained information in multiple languages, my client was not able to read them as his mother tongue was Malayalam. It shows that my client missed the time limit to apply within 28 days because of the lack of knowledge in understanding the information given in the brochure.
This explanation from the migration agent is at odds with the explanation given by the Applicant who said that he gave his application to the agent in time. The agent did not submit it in time. I will return to the letter from the migration agent shortly.
The Applicant, in his amended application, blames the agent who took up the matter, para 6, as he has done orally to the Court today. Unfortunately, that will not assist him. The provisions of s.412 of the Migration Act are mandatory. As the solicitor for the First Respondent has submitted, the Tribunal, pursuant to s.414 of the Act, must review a decision if 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 r.4.31.
The submission continues - the delegate complied with all of the requirements of the Act in notifying the Applicants. The Applicants were taken to have received the letter from the delegate seven working days after it was forwarded to them at their last residential address which was 4th April 2006. Therefore, pursuant to s.494C(4)(a) of the Act, they are taken to have received a letter seven working days after the date of that letter. In other words 13th April 2006. They had 28 days to apply for review to the Tribunal; the last filing day being 11th May 2006. The application for review to the Refugee Review Tribunal was received on 22nd May 2006, 11 days out of time.
The Refugee Review Tribunal has no jurisdiction to entertain an application made out of time and is unable to consider the reasons why an application is filed late. I note that the Full Court of the Federal Court held in Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 324 at [31], [44] and [55] that the making of an application within the prescribed time is an essential preliminary to the exercise of the Tribunal's decision. Further, the terms of s.412(1)(b) are clear and the Tribunal does not have power to override the time limits limitations prescribed by that section. I am referred to Vean of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 311 at [33].
The submissions in the amended application are partly derived from the original application. The Applicant said that the grounds in that application came from his migration agent, and indeed the migration agent's submission to the Refugee Review Tribunal on 19th September 2006 contains almost those identical grounds. At page 89 there are three propositions set out and I quote:
1.That there is nothing expressly mentioned in part 7 of the Migration Act 1958 that, “An application for review of an RRT reviewable decision must not be taken after 28 days”.
2.Alternatively it can be argued that nothing expressly mentioned in part 7 of the Migration Act 1958 that the Tribunal shall not review any decision after 28 days.
3.That s.412(1)(b) is aimed to control review application not to disappoint the Refugee applicant.
Those propositions set out in the Migration Agent's submission to the Tribunal, and the similar ground set out in the amended application, are just wrong. They are absolutely misconceived. It is not the case 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. It is s.412. Section 412(1) says:
An application for review of an RRT reviewable decision must:
(a) be made in the approved form, and
(b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of a decision and,
(c) be accompanied by the prescribed fee, if any.
It is a matter of some astonishment that a migration agent could have such a fundamental lack of knowledge of an important section of the Migration Act relating to applications for review of a delegate's decision as to make such a ludicrous statement in a submission to the Refugee Review Tribunal. The fundamental lack of knowledge causes me such concern that I propose to refer a copy of my decision to the Migration Agent's Registration Authority for consideration of the Migration Agent's fitness to practice.
There is no evidence that the Applicants gave their application to the migration agent but the migration agent did not submit the application in time. There is an assertion by the Applicants but nothing more. Even if there were a default on the part of the migration agent, it would not avail the applicants. I refer to the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142 in particular the decision of Allsop J who was in the minority. There is no jurisdictional error on the part of the Tribunal. It is well established that the time limit in section 412(1)(b) is mandatory. See also SZHQH v Minister for Immigration & Anor [2006] FMCA 949 and SZECC v Minister for Immigration [2004] FMCA 1031.
As to the claim in the Applicant's letter to the Tribunal that an earlier application had been forwarded by ordinary post but it had been mislaid, the Applicant did not bring that to the attention of the Court immediately and it is surprising that that claim was not referred to in the submission made by the migration agent. I am not satisfied that there is any evidence on which I can rely that there was an earlier application submitted to the Tribunal. I am not satisfied that there is any evidence that the migration agent delayed in forwarding the application to the Tribunal. In my view the application was submitted out of time and the Tribunal have no power to review it because it had no jurisdiction. The application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister. The Applicants have been wholly unsuccessful in their claim and in my view there is no reason to depart from the practice that unsuccessful applicants should be responsible for the costs of the successful party. I do not propose to make an order for costs against the Third Applicant who is a child and has played no separate part in these proceedings.
The amount sought is the sum of $2,700.00 which appears to me to be an appropriate figure and within the scale. The First Applicant indicates that he can pay by instalments. I will allow time to pay.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 19 December 2006
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