SZJRP v Minister for Immigration and Citizenship

[2007] FCA 614

FEDERAL COURT OF AUSTRALIA

SZJRP v Minister for Immigration and Citizenship [2007] FCA 614

SZJRP v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 602 OF 2007

ALLSOP J
30 APRIL 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 602 OF 2007

BETWEEN:

SZJRP
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP J
DATE OF ORDER:	30 APRIL 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal be substituted for the Federal Court of Australia as second respondent.

2.The application for an extension of time in which to file and serve a notice of appeal be dismissed.

3.The applicant pay the first respondent Minister’s costs.

4.The Minister’s costs to be paid are assessed at $300.00.  If the applicant files and serves within 14 days a document objecting to this assessment of costs, costs are to be as agreed or taxed.

5.Orders (1) to (4) are stayed.

6.The applicant file and serve any further material upon which she seeks to rely upon to reconsider the above orders on or before 9 May 2007.

7.The application be adjourned to 2.15 pm on 11 May 2007.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 602 OF 2007

BETWEEN:

SZJRP
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP J
DATE:	30 APRIL 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the applicant seeks an extension of time in which to file and serve a notice of appeal from orders made by the Federal Magistrates Court on 9 March 2007.  The applicant sought to file a notice of appeal only a few days out of time.  The Minister, in his submissions, takes no particular point about the length of time and delay in seeking to file the notice of appeal.  However, no objection is taken to the extension of time being granted on the basis of there being no reasonable prospect of success on appeal

2. The applicant applied to the Department of Immigration for a protection visa on 2 July 2001.  On 29 November 2001 a delegate of the Minister refused to grant a protection visa, in circumstances to which I will come.  On 29 November 2001 the applicant was given notification of the decision by letter dated 29 November 2001.  The applicant did not seek review of the decision until 12 February 2002.  The Tribunal took the view, in its reasons, that the notice dated 29 November 2001, informing the applicant of the unfavourable decision by the Delegate had been given, according to the Department’s records, in accordance with the provisions of the Migration Act 1958 (Cth) (the “Act”) – in particular, by being given by registered mail to an authorised recipient and a copy being sent to what the Department records indicated was the applicant’s residential address. The Tribunal found that the decision notice was sent within three working days in compliance with the Act and so, in accordance with the provisions of the Act and regulations, the applicant was taken to have received the notice on 10 December 2001. On this basis, the 28 day period for review ended on 7 January 2002.

3. The Tribunal recognised that the time limit was mandatory without any authority in it to extend it.  The Tribunal, accordingly, dismissed the review application on the ground that it had no authority to hear it.  The applicant brought judicial review proceedings in the Federal Magistrates Court.  This is the decision from which the extension of time is now sought.  The learned Federal Magistrate identified three grounds raised in the application before the Court. Those are set out in paragraph 12 of the reasons which are as follows:

   (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. 

4. As the Federal Magistrate recognised, these grounds did not address the basis of the Tribunal’s decision which was the lack of authority or jurisdiction to hear the case.

5. The Federal Magistrate then dealt with an issue which is not relevant to resolve today which was whether or not the application to the Federal Magistrates Court was out of time. The Federal Magistrate approached the matter on a basis favourable to the applicant, and approached the matter on the basis that the Federal Magistrates Court had authority to deal with the matter. The Federal Magistrates Court then dealt with the question of the approach of the Tribunal. After describing methods of dispatch of documentation under the Act, the Tribunal, from paragraph 22, examined the question as to what was necessary for there to be an application for review within time. Paragraphs 22 to 27 of the reasons of the Federal Magistrate were as follows

   22.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.

   23.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.

   24.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.

   25. 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. 

   26. 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.

   27. 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.

6. It is these paragraphs which need to be the subject of legitimate criticism if there is to be any prospect of appeal.  The affidavit filed on 5 April 2007, which I take as read in this application, simply states that the applicant did not receive any letter from the Court, and the applicant is not satisfied about the decision of the Court for her case.  The draft notice of appeal with that affidavit is in hand, and in English, and is in the following terms,

   1.The applicant who is the citizen of China.

   2.The applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa.

   3.On 29/10/2001 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa.  The applicant was notified of the decision by letter dated 29/10/2001 and sought review of the decision by application lodged with the Tribunal on 12/02/2002.  But refused again.  And I was refused by the Federal Court also.

7. As can be seen, there is no apparent identified error in the approach of the Federal Magistrates Court as the Tribunal in that draft notice of appeal.  In submissions filed in 25 April 2007, the applicant makes some complaint about her migration agent at the time.  She indicates in those submissions that she did not live at the residential address which she says may have been fabricated by the migration agent.  Various other complaints are made as to the administrative handling of her affairs by the migration agent.  Various other matters are raised in the submissions but none of them direct to identifying any error in the approach of the Federal Magistrate to the decision by the Tribunal that it had no authority by reason of the review being out of time. 

8. The first respondent has filed an outline of submissions in support of the approach of the Tribunal in coming to the view that it did that the review application was out of time.  The submissions, in particular at pages 5 and 6, correctly, in my view, identify why the Tribunal was correct.  In the light of those submissions which appear to support both the reasoning of the Tribunal and the Federal Magistrate, I am not able to identify any ground which could be argued contrary to the correctness of the Tribunal’s decision.

9. In those circumstances, notwithstanding that the applicant was only a few days out of time, I think it would be futile to grant an extension of time in circumstances where there is no apparent basis upon which the appeal can succeed.  For those reasons, the application for an extension of time will be dismissed and the applicant should pay the respondent’s costs.

10. The Minister, through Ms Nanson has requested that the order for costs be in a fixed sum.  No notice has been given to the applicant of that application or of the amount.  I ordinarily, for those reasons, would not make the order.  However, the amount claimed is, in my experience, very modest.  The respondent would be entitled to a sum on taxation, likely to be in excess of $300.  However, as I have said, the applicant has received no notice of the application.  What I propose to do to deal with the situation is to order that unless the applicant files and serves a document objecting to order 4, it will take effect in terms that the costs of the Minister are assessed and should be paid in the sum of $300.  To repeat those orders they are as follows:

    1. The Refugee Review Tribunal be substituted for the Full Court of Australia as second respondent.

    2.The application for an extension of time in which to file and serve a notice of appeal be dismissed.

    3.The applicant pay the first respondent Minister’s costs.

    4.The ministers costs to be paid are assessed at $300.00, if the applicant files and serves within 14 days a document objecting to this assessment of costs, costs are to be as agreed or taxed.

11. After dealing with the matter and making orders, I recognised that the applicant had sought an adjournment last week by letter sent to the Court.  The Registry informed the applicant that the application would be heard today.  After raising this matter with Ms Nanson, I decided to grant the applicant further time to file material upon the application.  I indicated that I would reconsider my conclusions if further material was filed.  Hence I make the following further orders:

    5.Orders (1) to (4) are stayed.

    6.The applicant file and serve any further material upon which she seeks to rely upon to reconsider the above orders on or before 9 May 2007.

    7.The application be adjourned to 2.15 pm on 11 May 2007.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:
Dated:        9 May 2007

The Applicant appeared in person with the assistance of an interpreter:
Counsel for the Respondent:	Ms A Nanson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 April 2007
Date of Judgment:	30 April 2007