SZJQC v Minister for Immigration & Anor
[2007] FMCA 505
•10 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJQC v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 505 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – Tribunal finding it lacked jurisdiction – review application filed late – Tribunal decision on jurisdiction correct. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.66, 412, 494B, 494D Migration Regulations 1994 (Cth) |
| Fernando v Minister for Immigration [2000] FCA 324 Man Chi Christine Chung v Minister for Immigration [2006] FCA 1317 SZBMF v Minister for Immigration [2005] FMCA 925 Vean of 2002 v Minister for Immigration (2003) 131 FCR 570 |
| Applicant: | SZJQC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3221 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 10 April 2007 |
| Delivered on: | 10 April 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr Z Chami Clayton Utz |
ORDERS
The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
The Court directs that the title of the second respondent be amended to the Minister for Immigration and Citizenship.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3221 of 2006
| SZJQC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was signed on 6 October 2006. The Tribunal decision was notified to the applicant by letter of the same date. The Tribunal found that it had no jurisdiction to entertain the review application before it. The applicant filed a show cause application in this Court on 3 November 2006. He asserted notification of the Tribunal decision on 25 October 2006. On that basis I find that the application to this Court was filed within time.
Background facts relating to this matter are conveniently set out in the Minister’s outline of written submissions, filed on 2 April 2007. I adopt as background for the purposes of this judgment paragraphs 1 through to 4 of those written submissions:
This is an application for judicial review of a decision of the Tribunal made on 6 October 2006. The Tribunal found that it did not have jurisdiction to review the decision of the delegate of the first respondent, made on 3 May 2006, refusing to grant a protection visa to the applicant.
The applicant is a citizen of the People's Republic of China who lodged an application for a protection visa on 12 April 2006.[1] By letter dated 3 May 2006, and sent to the applicant's residential and postal address,[2] a delegate of the first respondent refused the application ("Notification Letter").[3]
[1] Court Book ("CB") 1-126.
[2] CB 14.
[3] CB 37-44.
On 13 June 2006 the applicant lodged an application with the Tribunal for review of the delegate's decision ("application").[4] By way of letter dated 12 September 2006, the Tribunal invited the applicant to provide submissions in relation to its preliminary view that it did not have jurisdiction because the application had been received outside the prescribed time period.[5] The applicant did not reply to the Tribunal's letter. On 6 October 2006 the Tribunal found that it did not have jurisdiction to review the delegate's decision.[6]
[4] CB 45-48.
[5] CB 51-52.
[6] Supplementary Court Book ("SCB") 1-5.
The Tribunal decision
The Tribunal found that it had no jurisdiction to review the delegate's decision because the Application was lodged outside the mandatory 28 day time limit pursuant to s.412(1)(b) of the Migration Act 1958 (Cth) ("Migration Act")and Regulation 4.31(2)(b) of the Migration Regulations 1994 (Cth) ("Regulations"). In reaching its decision, the Tribunal made the following relevant findings:
a)the Notification Letter complied with the requirements of s.66(2) of the Act;[7]
b)the applicant did not give the Minister written notice of the name and address of an authorised recipient under s.494D of the Act;[8]
c)the Notification Letter was dispatched within three working days of the date of the letter;[9]
d)the Notification Letter was properly addressed in accordance with s.494B(4) of the Act;[10]
e)the applicant was taken to have received the Notification Letter on 12 May 2006;[11]
f)the last day for lodging an application with the Tribunal was 9 June 2006;[12] and
g)the application was not received by the Tribunal until 13 June 2006, after the prescribed period had expired. Accordingly, the application was not valid.[13]
[7] SCB at 5.4.
[8] SCB at 5.5.
[9] SCB at 5.5
[10] SCB 5.6
[11] SCB at 5.6.
[12] SCB at 5.7.
[13] SCB at 5.9.
The show cause application asserts that the Tribunal erred in finding that it had no jurisdiction. The application is supported by a short affidavit by the applicant filed on the same day as the application. In that affidavit the applicant does not dispute that his review application to the Tribunal was out of time but places the blame on his then migration agent.
The applicant was cross-examined today on his affidavit. He acknowledged that the signatures on his protection visa application[14] and his review application[15] were both his. He also acknowledged that the date of his signature on the review application was 12 June although he had difficulty reading the year, which appears to be 2006.
[14] CB at 25
[15] CB at 48
The applicant asserts in his evidence that he went to see his migration agent within seven days of the date of notification of the delegate’s decision. As best as he can recall, that was in early May 2006. It follows that there appears to be an error in the review application which gave the date of the notification of the delegate’s decision as 3 June 2006. The letter was in fact dated 3 May 2006. It was unclear whether the applicant made one or two visits to his agent. In any event, it is clear that the applicant did not sign his review application until 12 June 2006. It follows that, on the basis of the Tribunal decision, his application was already out of time when he signed it.
The Minister relies upon the affidavits of Ms Shi, the migration agent, filed on 30 March 2007 and Sylwia Eckley, an officer of the Department, filed on 28 March 2007. Ms Shi deposes as to the receipt of the notification letter dated 3 May 2006. While accepting that evidence, I note that the applicant himself acknowledged receipt of that notification letter. Ms Eckley deposes as to the process of preparing and sending notification letters. I accept her evidence. Neither Ms Eckley nor Ms Shi were required for cross-examination.
Assuming that the applicant was validly notified of the delegate’s decision, there is no real doubt that the Tribunal’s decision, that it lacked jurisdiction, was correct. The circumstances of the protection visa application were somewhat unusual in this case in that, although the applicant was assisted by a migration agent, she was not appointed as his authorised recipient for the receipt of correspondence[16]. It follows, in my view, that while the Department was permitted to correspond with the agent and it was probably prudent to do so, the notification obligation on the Department was to communicate with the applicant at his nominated personal address. The Department’s notification letter appears on pages 37 and 38 of the court book. The letter was addressed to the applicant at the agent’s address but was also sent to him at his residential address. I find that in following the latter course, the Department met its notification obligation. He was validly notified of the delegate’s decision and acknowledges that he was, in fact, notified.
[16] CB at 9 and 10
Further, I accept paragraphs 8 through to 13 of the Minister’s written submissions and I incorporate those paragraphs into this judgment with any necessary amendments:
Pursuant to s.412(1) of the Act an application to the Tribunal must "be given to the Tribunal within the period prescribed, being a period ending no later than 28 days after the notification of the decision."
The prescribed period is set out in Regulation 4.31 which provides as follows:
(1)For the purposes of paragraph 412(1)(b) of the Act, each period stated in sub-regulation (2) is prescribed as the period within which an application for review of a RRT-reviewable decision to which the period applies must be given to the Tribunal.
(2)A period mentioned in sub-regulation (1) commences on the day on which the applicant is notified of the decision to which the application relates, and ends at the end of:
(a)in the case of an application given to the Tribunal by or for an applicant in immigration detention on that day - 7 working days (beginning with the first working day that occurs on or after that day); or
(b)in any other case - 28 days.
Note if the Minister gives the person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the document.
The Notification Letter was sent to the applicant by a delegate of the Minister by one of the methods specified in s.494B of the Act, namely by prepaid post pursuant to s.494B(4).
The Notification Letter was sent within three working days of the date of the letter and was sent to the applicant's residential and postal address in accordance with s.494B(4) of the Act. Accordingly, the applicant was taken to have received the Notification Letter seven working days after the date of the Notification Letter, that is on 12 May 2006.
It follows that, pursuant to Regulation 4.31(2)(b), the applicant had until 9 June 2006 to lodge the application. As the application was not received by the Tribunal until 13 June 2006, the application was not valid and the Tribunal was correct to find that it did not have jurisdiction to review the delegate's decision.
The applicant's submissions attempt to explain why his application was lodged out of time. However, the reasons for the late filing of the application are immaterial. The time limits set out in s.412(1)(b) of the Act and Regulation 4.31(2)(b) are mandatory and the Tribunal does not have any discretionary power to override the prescribed time limits: Fernando v Minister for Immigration [2000] FCA 324 at [31], [44] and [55]; Vean of 2002 v Minister for Immigration (2003) 131 FCR 570 at [32]-[33]; SZBMF v Minister for Immigration [2005] FMCA 925 at [6].
I note in that regard that I have on several occasions expressed the view that it is unfortunate that the Tribunal lacks the power to extend time for the lodgement of review applications. Parliament has not seen fit to give the Tribunal that power. I note that in relation to the Migration Review Tribunal, the Full Federal Court is considering a challenge to the time limit imposed by regulation on the Migration Review Tribunal: Man Chi Christine Chung v Minister for Immigration [2006] FCA 1317. The outcome in that case is likely to have an impact on this case. I am not aware of any outcome in the case before the Full Federal Court and, for the purposes of this decision, I have proceeded on the basis that the Regulations are valid.
I find that there is no jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed.
I will direct that the title of the Minister be amended to the Minister for Immigration and Citizenship.
Costs should follow the event in this case. The Minister’s solicitor and client costs are in the vicinity of $7,000 but a party-party assessment would be less than that. The Minister seeks no more than is prescribed in the court costs scale. The applicant did not wish to be heard on costs. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 13 April 2007
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