SZJUD v Minister for Immigration & Anor
[2007] FMCA 1489
•18 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJUD v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1489 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of the People’s Republic of China – Tribunal has no jurisdiction. PRACTICE & PROCEDURE – Application made out of time – costs. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.412, 412(1)(b), 460, 494B, 494C, 494C(4), parra.66(2)(d)(ii), 66(2)(d)(iv) Migration Regulations 1994 reg. 2.16(3)(b), 4.212(B) |
| SZETZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 |
| Applicant: | SZJUD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3551 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 June 2007 |
| Date of Last Submission: | 18 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 18 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Killalea |
| Solicitors for the Applicant: | Chancellor & Rados |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed;
The applicant is to pay the first respondent's costs agreed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3551 of 2006
| SZJUD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”). It is, in fact, an amended application which was filed in Court on the morning of hearing. The amended application does not set out the orders which the applicant seeks so I would imagine that the orders sought would be those in the original application which are as follows:
i)a declaration of the Tribunal decision is invalid and has no affect;
ii)an order in the nature of certiorari to quash or set aside the Tribunal decision;
iii)an order in the nature of mandamus to remit the matter to a differently constituted Refugee Review Tribunal to be determined according to law.
I am not satisfied that the Court has power to make any order determining the constitution of the Refugee Review Tribunal that would appear to be more properly the function of the principal member of the Refugee Review Tribunal. This was a matter that was considered by the Full Court of the Federal Court of Australia in 107 SZETZ v Minister for Immigration & Multicultural Affairs[1] where their Honours referred at [10] to the responsibilities of the principal member, which are set out in s. 460 of the Migration Act 1958 (Cth) (“the Act”) and at [30] had this to say:
It is by no means clear that the Federal Magistrate's Court had power or jurisdiction to direct that the Tribunal be constituted differently for the purpose of reconsidering the applicant's application for review of the delegate's decision. As indicated above the constitution of the Tribunal is a matter for the principal member.
[1] [2006] FCAFC 107
Their Honours went on to say at [35]:
The power on referring a matter to the Tribunal to give such directions that the Court thinks fit did not include a power to give a direction as to how the Tribunal should be constituted.
The Tribunal signed its decision on 31st August 2006. It found that it did not have jurisdiction in the matter. The background is that the applicant applied to the Department of Immigration & Multicultural Affairs, as it was then called, for a protection (Class XA) visa on
14th February 2004. A delegate of the Minister decided to refuse the ground for visa on 27th February in that year and notified the applicant by letter that same day. On 3rd April 2003, the applicant applied to the Tribunal for a review of the delegate's decision.
That application nominated a representative as the person to whose address correspondence on behalf of the applicant should be sent.
On 26th June 2003 the applicant’s then authorised representative sent a letter to the Tribunal saying:
According to the instruction of the abovementioned clients we write to withdraw their applications with the Refugee Review Tribunal. Thank for your prompt attention to this matter.[2]
[2] Court Book at 52
The heading of the letter referred to two applications, one of them being an application from the applicant. A copy of that letter can be found in the Court Book at page 52. The Tribunal noted on 5th August 2003 that the applicant's authorised recipient notified the Tribunal in writing that the applicant wished to withdraw his application for review and thereupon decided that the Tribunal does not have jurisdiction to review the decision refusing to grant the protection visa.
What then happened is that on the 22nd September 2006 the applicant made a further application to the Tribunal for review of the delegate's decision. The Tribunal noted that the question that arose in this case was whether the Tribunal, in fact, had jurisdiction in respect of the application for review and noted that whether it did have jurisdiction depended on whether the application had been made for review in the delegate's decision. The Tribunal formed the preliminary view that it did not have jurisdiction because the application for review was received outside the prescribed time period. The Tribunal wrote to the applicant on 11th October 2006 inviting submissions. The applicant made written submissions on 24th October 2006.
The Tribunal made its decision on 31st October 2006 and a copy of the decision record can be found at pages 84 through to 89 of the Court Book. The Tribunal stated, at page 87, that it had considered the submissions by the applicant's representative but did not accept the argument. The Tribunal was satisfied that the notification letter notifying the applicant of the delegate's decision was despatched within three working days of the date of the letter for the applicant's correct address, in accordance with s.494B(4) of the Act. The Tribunal noted that a copy was also sent to the applicant as his residential address and found that the applicant was taken to have received a notice on
10th March 2003, seven working days after the date of the notice.
The Tribunal referred to 28 day prescribed time period set out under s.412(1)(b) of the Act and regulation 4.312b, which is, of course, a period of 28 days. The Tribunal found that the last day that the application for review could be lodged ended on 7th April 2003.
The Tribunal found:
The current application for review was not received by the Tribunal until 22 September 2006 after the prescribed period had ended. As the application for review was received by the Tribunal outside the mandatory time limit it is not a valid application and the Tribunal has no jurisdiction to review the delegate's decision.[3]
[3] Court Book at 88
The applicant filed an application and an affidavit in support on
30th November 2006. The application came before the Court on the first Court date on 12th February 2007 and directions were made here. Those directions included granting leave on or before 4th May 2007 to file and serve an amended application, and listed the application for final hearing at 10:00am on 22nd June 2007. The directions also required the applicant to file and serve written legal submissions and list to the parties 14 days before the hearing.
The directions required the first respondent Minister to file and serve written legal submissions and a list of the parties seven days before the hearing. On 18th June 2007, the first respondent Minister filed an outline of submissions.
The applicant's submissions and amended application were not made until 22nd June, and leave was sought to file this document in Court.
I would comment that this practice on behalf of legally represented applicants to fail to comply with directions for hearing made by consent is a particularly irritating and time consuming practice as far as the Court is concerned.
The Court expects practitioners who seek to practice in this jurisdiction to display the degree of professionalism that the Court expects.
The amended application originally contained three grounds although the first ground was not pressed. There are two grounds. Ground 2 says:
The RRT erred in failing to exercise jurisdiction by reason of the delegate failing to comply with para.66(2)(d)(iv) of the Migration Act 1958 in the time for review by the RRT had not begun to run.
Counsel for the applicant, Mr Killalea, made these submissions: para.66(2)(d)(ii) of the Act provides and provided at material time:
Notification of a decision to refuse an application for a visa must, if the applicant has the right to the decision reviewed under part 5 or 7 of section 500, state the time in which the application for review may be made.
By operation of regulation 2.16(3)(b) time is relevantly prescribed by s.494B which relevantly provided:
(4) Another method consists of the Minister dating the document and then despatching it; (a) within three working days (in the place of despatch) of the date of the document.
Section 494C provides:
(4) If the Minister gives a document to a person by the method in sub‑s.494B(4) which involves despatching the document by prepaid post or by other prepaid means that the person is taken to have received that document (a) if the document was despatched from a place in Australia to an address in Australia seven working days (in the place of that address) after the date of the document.
In this matter counsel for the applicant submitted that the delegate's letter did not state that the period in sub-s.494C(4) was subject to the letter being despatched within three working days. Accordingly notification was not effective and time had not begun to run and the Tribunal erred in finding that it did not have jurisdiction.
In respect of ground 3, Mr Killalea submitted that para.66(2)(d)(iv) of the Migration Act provides, and provided at the material time:
Notification of a decision to refuse an application for a visa must, if the applicant has a right to have the decision reviewed under part 5 or 7 or section 500, state where the application for review can be made.
The delegate's letter, he submitted, provides no details of where the application could be made, so notification was not effective and time did not begin to run. Therefore, the Tribunal erred in finding that it did not have jurisdiction.
The written submissions prepared and filed on behalf of the respondent Minister do not, of course, specifically address those issues. At that stage the legal advisors for the first respondent were not aware that those particular points would be argued. It is fair to say, however, that some warning had been given due to the submissions made by the applicant's solicitor of the Refugee Review Tribunal. Mr Smith, of counsel, who appeared for the first respondent Minister submitted:
Apparently, however, the applicants changed their mind for on 21 February 2006 a firm of solicitors purporting to act for the applicant wrote to the Tribunal requesting that the review be 'revisited' and 'reopened' because the applicant had not ticked a box on the application form indicating that Billie Shi was authorised to act on his behalf in the case. The Tribunal did not take up this invitation and, on 19 September 2006, the applicant's solicitors lodged a further application. The solicitor asserted without substantiation that it was 'apparent from the departmental records' that the notification of the decision was not accompanied by a brochure so there had been no proper notification in the decision. The consequence of this, it was said, was that the time for lodging applications for review had not commenced.
Mr Smith further noted from the correspondence between the solicitors and the Tribunal that there were two assertions upon which the applicant relied: first Billie Shi was not authorised to send the letter withdrawing the first application; and second, the department's letter, dated 27th February 2003 notifying the delegate's decision did not contain details of where and how an application may made be about review of that decision. Neither of these assertions is supported by the evidence. It was submitted that they should be rejected.
He submitted that the letter of 26th June 2003 expressly stated that Ms Shi had instructions to withdraw the applicant's application for review, and he also submitted that the delegate's letter to the applicant notifying the applicant of the delegate's decision contained the statement:
Information about applying for review is included in this letter.
The delegate's letter appears at page 39 of the Court Book. It is dated 27th February 2003, and has attached to it a Lift and Peel Registered Post sticker. At page 39 in the section headed Review Rights the letter says:
You may apply to the Refugee Review Tribunal (RRT) for review of the refusal to grant you a protection visa. Information about applying for review is included with this letter.
The applicant's application before the Court raises the issue of whether the applicant was properly notified. Two points are (a) whether the delegate did or did not state time in the notice; and (b) whether the delegate did or did not say where the application could be made.
What the applicant explored is, indeed, a question of fact and raises the query whether the letter was despatched within three working days of its date. The applicant said that he did not receive any information as to where the application could be made.
But no evidence has been provided by this. As was submitted by counsel for the first respondent where a fact is asserted it must be proved, not disproved by the respondent. The old maxim is, as I recall, "He who puts must prove." The only evidence of despatch is the delegate's letter, at page 39 of the Court Book, and there is a specific reference in the letter to the information about applying for review being included in this letter. It is significant that the original application for review was made on 3rd April 2003 which was within the time prescribed.
There was no evidence from the applicant that neither he nor his authorised recipient did not receive that notification and the applicant has not satisfied that onus. The applicant has, in fact, failed to give evidence. The applicant has failed to prove his case. Where a case depends on notification and an application is saying that contrary to the only piece of evidence which asserts that information had been provided he did not receive that information, there must be some evidence from the applicant to this affect. There is none.
There is nothing before me which would indicate that the applicant's then representative, Billie Shi, did not have authority to withdraw the application and, in my view; the second application for review was made out of time. The time prescribed by s. 412 of the Migration Act is 28 days and that time limit is mandatory. The application will be dismissed with costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 30 August 2007
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