SZJRP v Minister for Immigration - [2007] FMCA 295

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJRP v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 295

MIGRATION – Persecution – review of Refugee Review Tribunal decision. Status – refugee status – refusal.
Visa – protection visa.

Migration Act 1958, ss.66, 91X, 412, 477, 494B, 494C
Migration Regulations 1994, regs.2.16, 4.31

Applicant:

SZJRP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG3339 of 2006

Judgment of:

Cameron FM

Hearing date:

9 March 2007

Date of last submission:

9 March 2007

Delivered at:

Sydney

Delivered on:

9 March 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
The application be dismissed.
The applicant pay the first respondent's costs fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3339 of 2006

SZJRP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By application dated 14 November 2006 the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) dated

13 June 2003 which found that it had no jurisdiction to review an earlier decision of the delegate of the Minister for Immigration & Multicultural Affairs (“Minister”) dated 29 November 2001 refusing the applicant's application for a protection visa because the application was lodged out of time.
Section 91X of the Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant's name.
In this matter the applicant claims to fear persecution in China by reason of her membership of Falun Gong. Her application for a protection visa was refused by a decision of the minister's delegate dated 29 November 2001. That decision and its covering letter are found at pages 32 to 40 of the bundle of Relevant Documents (“RD”). The covering letter is dated 29 November 2001 and is addressed to the applicant at 4/50 The Boulevarde, Lewisham and to a person called

Song Jiang Jie whose address is given as 523/368 Sussex Street, Sydney. Significantly, Mr Jiang Jie Song is identified in the applicant's form 956, being the “Authorisation of person to act and receive Communication”, reproduced at RD 11 and the address of that person set out on that form is also 523/368 Sussex Street, Sydney.
It should also be observed that in the application for a protection visa, which is at RD 12 to 24, the applicant's address of 4/50 The Boulevarde, Lewisham is identified as her residential address.
The applicant lodged an application for review by the Tribunal which was dated 7 February 2002 and was received by the Tribunal on 12 February 2002. That document is reproduced at RD 41 to 45. In her evidence today the applicant has acknowledged that it is her signature which appears at RD 45 of the bundle of relevant documents which is page four of the form.
At RD 46 is a letter sent to the applicant at 4/50 The Boulevarde, Lewisham, dated 12 February 2002 indicating that the application which she had filed was not in the approved form and requesting a further application. A further application was filed and it is reproduced at RD 47 to 50 and was received by the Tribunal on 19 February 2002 according to the receipt stamp reproduced at RD 47.
I interpolate here that I have concluded that the first review application form was received by the Tribunal because "received" stamps are reproduced at RD 41 and 42.
Following receipt of the applicant's application, the Tribunal wrote to her by a letter dated 14 January [sic] 2003 at 4/50 The Boulevarde, Lewisham saying that it could not consider her application as it had been filed out of time. This letter is reproduced at RD 53.
Amongst other things; the letter says this:
If you disagree, and think the Tribunal has power to consider your application, please write to us. We must receive your letter by 6 February 2003.
A Member of the Tribunal will consider any information you send and decide if the tribunal has power to consider your application.
Notwithstanding the fact that the applicant has said in her evidence today that she never lived at 4/50 The Boulevarde, Lewisham, by some means - and it is not clear from the bundle of relevant documents how - a member of the Tribunal nevertheless gave consideration to whether that preliminary administrative decision was incorrect.
The Tribunal concluded that it had no power to consider the application as it had been received by the Tribunal out of time. The Tribunal expressed its reasons in the following terms, which are found at RD 57.
The Tribunal is satisfied that the contents of the delegate's decision notice complied with the requirements of s.66(2) of the Act.
The notice was dated 29 November 2001.
The Department's file records indicate that the applicant had given the Minister written notice of the name and address of an authorised recipient under s.494D of the Act and that the decision notice was sent by registered mail to the authorised recipient on 29 November 2001. A copy was also sent to the applicant at her residential address.
The Tribunal finds that the decision notice was sent within 3 working days to the applicant's authorised recipient in accordance with s.494B(4) and 494D of the Act. Therefore, the applicant is taken to have received the notice on 10 December 2001. Therefore, the 28 day period within which the review application must be lodged ended on 7 January 2002. The application for review was not received by the Tribunal until 12 February 2002, after the prescribed period had expired.
The applicant's application to this Court raises three grounds:
(1)The Tribunal didn’t believe my political opinion. In China and many underground organize members were persecute because their political opinion.
(2)The Tribunal failed to consider relation matters and failed to understand my particulars claims.
(3)The RRT Tribunal officer the decision refusing to grant a protection visa for me. They are without any proper ground and proper investigate about my application after the prescribed period had expired.
A consideration of the grounds raised by the applicant indicate that they do not address the basis of the Tribunal's decision other than to the extent that they make reference to the fact of the prescribed period having expired. That is the issue to be determined in these proceedings: whether the Tribunal was guilty of jurisdictional error in arriving at its conclusion that the application to it had been made out of time.
However, as a preliminary issue in these proceedings was the question of whether the application filed in this Court had, itself, been filed out of time. As I have already said, the Tribunal's decision is dated 13 June 2003 but the application to this Court was not lodged until 15 November 2006. Under s.477 of the Migration Act, together with the provisions of the Migration Litigation Reform Act (2005) the application would, on its face, appear to be out of time. In fact the application itself indicates that the applicant received the decision on 13 June 2003 and in her application she seeks leave to commence out of time as well as an extension of time under s.477 of the Migration Act.
The evidence of the applicant today is that she never received the Tribunal decision. At RD 58 and 59 is the Tribunal's letter to the applicant sending her the Tribunal decision and the Tribunal's envelope indicating that it had been returned to it because the applicant had left the address noted on the letter, being 4/50 The Boulevarde, Lewisham.
The applicant in her evidence today has raised a doubt about whether she received the Tribunal decision at all and she said that her application to this Court had been completed by somebody else on her behalf. Ms Watson, on behalf of the Minister, has invited me to conclude that the applicant did not seek to contact the Tribunal because she was afraid that her review application had been unsuccessful, which is why, in the intervening period, she made no attempts to discover the outcome of that application.
Whether or not that is the case, that inference would nevertheless be dependent on a finding that the applicant had not in fact received the determination. In circumstances where no evidence other than the applicant's evidence has been provided to the Court to indicate whether she did in fact receive the Tribunal's decision, I am not willing to find that her application in these proceedings has been brought out of time. Consequently, I am of the view that the Court is competent to reach a conclusion on the principal issue which is whether the Tribunal's decision is affected by jurisdictional error.
In arriving at that decision it is important to understand what the relevant statutory provisions are. Section 66(1) of the Act provides:
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.
That way is described in regulation 2.1.6 and particular sub-rule (3) which provides as follows:
The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s.494B of the Act.
Section 494B(4) provides that the Minister may despatch documents by pre-paid post or other pre-paid means. The sub-section provides as follows:
Another method consists of the Minister dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by pre-paid post or by other pre-paid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.
Section 494C(4) provides for when such documents are deemed to have been received saying :
If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a)if the document was dispatched from a place in Australia to an address in Australia - 7 working days (in the place of that address) after the date of the document …
In order for an application for review by the Tribunal to have been made in time, s.412 of the Act sets out what is required and works in combination with regulation 4.31. The combined effect of that section and that regulation is that an application for review must be given to the Tribunal within 28 days after notification of the decision.
In this case the Tribunal has found, as a matter of fact, that the decision notice was sent by registered mail to the applicant's authorised recipient on 29 November 2001 or at least that it was sent within three working days of that date because the department's file records indicate that it was sent on 29 November 2001.
It is significant that both addresses to which the letter was sent were the addresses which had been provided to the department in the document reproduced at RD 11 and although the applicant has disclaimed 50 The Boulevarde, Lewisham as her address, she has nevertheless confirmed that the address of the agent, which appears on that form, is correct. And as s.494B(4)(c)(i) says it is sufficient that the documents be sent to:
…the last address for service provided to the Minister…
which that address in Sussex Street was.
Moreover, to the extent that there may be an issue about whether the delegate's decision came to the attention of the applicant, her evidence before me today is that her agent did contact her at the end of 2001 and told her that her application to the department had been unsuccessful and that it would need to be appealed to the Tribunal and a further payment made if she wanted to take the matter further. Therefore, it is possible to find as a matter of fact that the applicant received notification at the end of 2001.
The way the formula under the Act works is that the document is deemed to have been received by the applicant seven working days after the date which the document bears. In the circumstances of this matter, that date is 10 December 2001. By virtue of s.412 and reg.4.31 the applicant had 28 days within which to lodge her application to the tribunal. That 28 day period expired on 7 January 2002. As the Tribunal's decision records at RD 55 and 57, the applicant's application was not lodged until 12 February 2002 with the result that it was lodged late.
Consequently, the Tribunal was not in error in deciding that it had been received outside the mandatory time limit and was not a valid application. Consequently, its decision is not affected by jurisdictional error and the application will be dismissed.

RECORDED : NOT TRANSCRIBED

In this matter because the application will be dismissed, the Minister has sought an order for costs in the amount of $4,000. I think it is appropriate that costs should be ordered as in the ordinary course. That is, that costs follow the event. There seems no reason why the Minister should not be awarded his costs. The amount that has been sought is $4,000 and I am informed by Ms Watson on behalf of the Minister that the Minister's solicitor and client costs exceed $4,700. As these proceedings were commenced in November 2006 the cost provisions of Part 2 of Schedule 1 to the Rules of the Federal Magistrates Court apply and could entitle the Minister to an amount of $5,000. In light of what the Rules provide and the solicitor and client costs advised to me by the Minister's representative, I am satisfied that the amount of $4,000, which has been sought, is reasonable and there will be an order in that amount.
Finally, the Minister has sought that his title in these proceedings be amended to reflect the new name of his portfolio because his title changed in recent weeks, which is an appropriate application and an appropriate order to make.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 12 April 2007