SZJUA v Minister for Immigration
[2007] FMCA 631
•26 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJUA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 631 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – Tribunal lacking review jurisdiction as the review application to it was lodged out of time. |
| Migration Act 1958, ss.66, 412, 414, 494B, 494C |
| Fernando v Minister for Immigration [2000] FCA 324 Vean of 2002 v Minister for Immigration [2003] FCAFC 311 |
| Applicant: | SZJUA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3547 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 24 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms Z McDonald DLA Phillips Fox |
ORDERS
Leave be granted for the applicant to amend the title of the first respondent to the Minister for Immigration & Citizenship in her amended application filed on 9 March 2007.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3547 of 2006
| SZJUA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
(As corrected)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 31 October 2006 and notified to the applicant by letter dated 1 November 2006. The Tribunal decided that it did not have jurisdiction in relation to the review application before it. That was because the review application was received late. Background facts relating to the matter are set out in the Minister's outline of submissions filed on 17 April 2007. I adopt as background for the purposes of this judgment paragraphs 2 and 3 of those written submissions:
The applicant is a female citizen of China who applied for a protection visa on 23 May 2006[1]. She claimed to fear persecution because she was a Falun Gong practitioner.[2] The applicant's application was refused by a delegate on 30 June 2006.[3] She was notified of the decision by letter, sent on the same day.
The applicant lodged an application to the Tribunal for review of the decision on 18 August 2006.[4] The Tribunal formed the preliminary view that it did not have jurisdiction as the application was received outside the prescribed time period. The Tribunal sent the applicant a letter on 1 September 2006 inviting her to comment.[5] On 31 October 2006, the Tribunal found it did not have jurisdiction in the matter. [6]
[1] Court book (CB) 1-36
[2] CB 27
[3] CB 33-43
[4] CB 46-49
[5] CB 57-58
[6] CB 61-65
These proceedings commended with a show cause application filed on 30 November 2006. In that application the applicant asserted actual notification of the Tribunal decision on 10 November 2006. On that basis I find that the application was filed within time.
The applicant now relies upon an amended application filed on 9 March 2007. She continues to rely upon her affidavit accompanying her original application. I accept that affidavit as a submission. In her amended application the applicant asserts that the Minister's Department failed to notify her of the delegate's decision against which she was seeking review by the Tribunal. She asserts that she should receive a fresh notification letter.
I received as evidence the court book filed on 22 January 2007. On pages 33 and 34 of the court book is a letter sent by the Minister's Department to the applicant notifying her of the delegate's decision. The letter was sent by registered post and was addressed to the applicant at her address for service disclosed in her protection visa application. On the face of the letter is a handwritten notation stating "sent 30/6/06". This is evidence that the letter was despatched on the same date that it bore. Enclosed with the letter was a brochure about the Refugee Review Tribunal and a copy of the delegate's decision. At page 44 of the court book there is an Australia Post sticker indicating that the Department's letter was returned unclaimed. The return notification is dated 4 July.
As 30 June 2006 was a Friday it follows that the letter must have been despatched within three working days of the date that it bore. The applicant herself concedes this in her letter appearing on page 45 of the court book. It appears to me that the Department met the requirements for effective notification of the Delegate's decision. In those circumstances time began to run after the applicant was deemed to have received the Department's letter.
The applicant did not give the Tribunal her review application within the prescribed period and hence it was incompetent. The Tribunal was correct in finding that it had no jurisdiction to deal with the review application. The Minister's submissions deal with the matter comprehensively. I adopt, with necessary amendments, paragraphs 6 through to 12 of the Minister's submissions:
Section 66(1) of the Act provides that 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. Regulation 2.16 provides that for the purposes of s.66(1) of the Act, the Minister must notify an applicant of a decision by one of the methods specified in s.494B.
Compliance with s.494B
Section 494B(4) provides that a method in which the Minister can give a person a document is by sending it within three working days of the date of the letter to the applicant's last address for service or last residential or business or address provided to the Minister for the purpose of receiving documents.
The first respondent submits that s.494B(4)(a) of the Act was complied with as the decision and accompanying letter were dispatched within three working days of the date of the document.
(a)On 30 June 2006, the applicant was sent a letter to her last residential address provided to the Minister. This letter advised that the protection visa had been refused and included information about review rights, pursuant to s.66(2)(ii).
Further, ss.494B(b) and (c) of the Act were complied with as notification of the decision was sent by registered post to the last residential address notified by the applicant.
Effect of compliance with s.494B
The effect of compliance with s.494B allows for reliance on the deemed notification provisions set out in s.494C(4)(a) of the Act. Accordingly, the applicant is deemed to have been notified after seven working days after the date of the document, being 11 July 2006.
(a)This is so, even though the letter was returned unclaimed: Murphy v Minister for Immigration [2004] FCA 657 at [69] per Spender J.
Jurisdiction of RRT
The Tribunal correctly decided that it did not have jurisdiction. The Tribunal’s jurisdiction arises by virtue of s.414 when 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 r4.31.
(a)The applicant had 28 days, after she was deemed to be notified, to apply for review to the Tribunal. The last day to file her application was 8 August 2006. The application for review was received by the Tribunal on 18 August 2006, 10 days out of time.
The Tribunal has no jurisdiction to entertain an application made out of time as ss.412 and 414 of the Act clearly stipulate that the making of an application within the prescribed time is an essential preliminary to the exercise of the Tribunal’s jurisdiction, see Fernando v Minister for Immigration [2000] FCA 324 as per Heerey J at [31], Finkelstein J at [44] and Dowsett J at [55].
(a)The first respondent further submits that the terms of s.412(1)(b) are clear and the Tribunal does not have power to override the time limitations prescribed by s.412(1)(b), see Vean of 2002 v Minister for Immigration [2003] FCAFC 311 per Gray, Whitlam and Mansfield JJ.
As the Tribunal was correct in finding that it had no jurisdiction, there is no jurisdictional error in the Tribunal decision. As I have noted on several occasions previously[7] it is regrettable that the Tribunal does not have the power to extend time for applicants to make review applications to it. In addition this Court does not have jurisdiction to review primary decisions which are relevantly decisions of the delegate. In the circumstances, applicants are left in the position of having to pursue review rights in the High Court of Australia should they wish to have the validity of the operative decision of the Minister’s delegate tested concerning their protection visa claims. That is a matter for the applicant to consider on receiving appropriate advice.
[7] SZIIV v Minister for Immigration & Anor [2006] FMCA 322; SZBQN v Minister for Immigration & Anor [2006] FMCA 716; SZDMO v Minister for Immigration & Anor [2006] FMCA 617; SZACN v Minister for Immigration & Anor [2007] FMCA 339
The decision of the Tribunal is a privative clause decision and the application to this Court must be dismissed. I will so order.
The application having been dismissed costs should follow the event. The Minister seeks and order for costs fixed in the sum of $3,600. That is a party/party assessment and is substantially less than scale costs. The applicant told me that she is unemployed and impecunious, but her capacity to pay is not the issue. The issue is whether the costs claimed have been properly and reasonably incurred. I am satisfied that they have been.
I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $3,600.
I will further order that the applicant have leave to amend her application in the manner described in the amended application filed on 9 March 2007 to correct the title of the Minister to the Minister for Immigration & Citizenship.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 May 2007
CORRECTION
The hearing date and date of delivery of this judgment appearing on the cover sheet of this judgment have been corrected to 24 April 2007.
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