SZKAT v Minister for Immigration
[2008] FMCA 293
•25 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKAT & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 293 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision finding it had no jurisdiction – applicants are citizens of India seeking to set aside a decision made when they failed to attend court – no reasonable explanation – no utility in setting aside decision. |
| Migration Act 1958 (Cth), ss.412, 494 |
| First Applicant: | SZKAT |
| Second Applicant: | SZKAU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 137 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 25 February 2008 |
| Date of Last Submission: | 25 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 25 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| The First Applicant: | Appeared in person |
| Appearance for the Respondents: | Ms Palmer |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $700.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 137 of 2007
| SZKAT |
First Applicant
| SZKAU |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicants in this matter ask the Court to set aside a decision on 24th September 2007 dismissing their application for review.
The application was dismissed because neither one of them attended.
The applicants say in an affidavit sworn by the first applicant.
"I came to Australia and lodged my protection visa application. The delegate of the minister refused to grant my protection visa. The delegate did not notify me their refusal and therefore I was out of statutory time limit to lodge my review of the delegate’s decision to the Refugee Review Tribunal. The delegate’s letter was sent to wrong address and there is no receipt signature of mine in the registered mail. I seek permission to accept my application to set aside the earlier judgment made on the 24 September 2007 by the FM."
The Minister for Immigration & Citizenship opposes the application.
It is necessary to review the history of the proceedings. It is well established that in dealing with an application to set aside a decision entered into and dismissed due to the non-attendance by the applicants at the hearing, the Court should consider:
a)whether there is a reasonable explanation for the failure to attend Court; and
b)whether there is any utility in setting aside the decision and restoring the application to the list.
The applicants applied for a protection (Class XA) visa on 22nd May 2006. They gave a residential address in a country town in New South Wales and a postal address which was a post office box number in that same town.
The delegate of the Minister wrote to the first applicant on 17th June 2006 advising him that his application for a protection visa, which included his wife as the member of his family unit, had been refused.
According to the Court Book, at pages 37 to 38, that letter was sent to the first applicant at the post office box number that he had given in his application.
What then happened is that on 11th September 2006, the applicants arranged from a migration agent to lodge an application to the Refugee Review Tribunal for review of that decision. A copy of the covering letter from the migration agent can be found at page 51 of the Court Book.
The letter said, relevantly,
"The applicant had applied for a Protection visa on 22 May 2006. At that time the applicant was not represented. The applicant received the refusal of the Protection visa. The protection visa refusal letter was sent by a Third Party other than DIMIA. The third party was not a person or company to receive the notification on behalf of the above applicant. In addition, the letter from the Third party was received recently. A complete submission detailing the circumstances will be sent to you as soon as we receive a copy of the DIMIA file."
The Tribunal wrote to the applicant, care of the migration agent, on 22nd September 2006 in a letter headed "Invitation to Comment and Provide Further Information on Eligibility Issues." The letter began,
"We received your application for review on 11 September 2006. Unfortunately, it appears your application reached us too late. The Tribunal has no power to consider late applications. Why does my application appear to be late? Applications to the Tribunal must be made within 28 calendar days of the notified of the Department of Immigration and Multicultural Affairs (DIMA)'s decision. DIMA's letter is taken to have been received seven working days after the date of the letter, even if it was not received. Our records show that you were notified on of DIMA's decision to refuse your Protection Visa by letter dated 17 June 2006."
The letter went on to invite the applicants to write to the Tribunal if they disagreed with the Tribunal's view and thought the Tribunal had the power to hear the application.
The Tribunal wrote to the applicant's migration agent on 16th October 2006, again, in a letter headed "Invitation to comment and provide further information on eligibility issues." The letter told the migration agent that the records show that the applicants were notified of the DIMA's decision to refuse a Protection Visa by a letter dated 17th June 2006 and, therefore, the applicants were taken to be notified of the decision on 28th June 2006 and the last day to apply to the Tribunal was 26th July 2006. The Tribunal did not receive the application until
11th September 2006.
The Tribunal's letter invited a letter commenting on this situation by
8th November 2006. No letter appears to have been received and on
5th December 2006the Tribunal decided that it did not have jurisdiction in the matter.
A copy of that decision was posted to the applicants' migration agent on 9th December 2006. A copy of the Tribunal decision record appears at pages 64 to 67 of the Court Book.
The Tribunal was satisfied that the contents of the delegate's decision notification complied with the requirements of s.66(2) of the Migration Act.
The Tribunal found that the decision notification letter was dated
17th June 2006and sent by pre-paid post on 19th June 2006 to the applicants' address in Australia provided for the purpose of receiving documents.
The Tribunal found that the decision notification letter was despatched within three working days of the date of the letter to the applicants' correct address in accordance with s.494B(4).
The Tribunal found that the applicants were taken to have received the notice on 27th June 2006, being seven working days after the date of the notice.
The Tribunal found that the applicants were seeking review of the delegate's decision under s.411(1)(c) and that the 28 days' prescribed period under s.412(1)(b) and reg.4.312(b) applied and found that the last day that the application for review could be lodged ended on
25th July 2006. The application for review was not received by the Tribunal until 11th September 2006 after the prescribed period had expired.
The Tribunal found that the time limit under s.412 was a mandatory time limit and, therefore, the application for review was not a valid application and the Tribunal had no jurisdiction to review the delegate's decision.
The applicants commenced proceedings in this Court on 15th January 2007 by filing an application and an affidavit in support.
The application came before the Court on 8th March 2007 where the first applicant appeared with the assistance of a Gujarati interpreter.
The Registrar placed the matter in a callover list but the matter was subsequently listed for directions before me on 4th June 2007.
The applicant was represented on an amicus curiae basis by Mr David Prince Solicitor.
The application was listed for final hearing at 11:30 a.m. on
20th September 2007. Unfortunately, the Court could not hear the matter on that date due to other commitments. The Court wrote to the applicant on Monday, 30th July 2007 at both the applicants' residential address and the same post office box number in the country town of New South Wales advising that the listing had changed to 11:30 a.m. on Monday, 24th September 2007.
Neither applicant attended Court on that day and the application was dismissed under r.13.03A(c) due to the non-attendance of the applicants at the hearing (see SZKAT & Anor v Minister for Immigration & Anor)[1].
[1] [2007] FMCA 1662
On 8th February 2008, the applicants lodged their current application and affidavit in support. The first applicant attended Court today and advised that his wife, the second applicant, SZKAU, was unable to attend. However, he addressed the Court on behalf of both of them.
The applicant was offered the opportunity of giving evidence in the witness box in support of his application but chose not to accept that offer. In submissions to the Court, the first applicant said that he did not receive the letter from the delegate and said that the post office box number in the country town was shared with two other people. He said that he had great difficulties due to the fact that he did not know English and asked to be given one more chance.
He said that he had lots of problems in India and could not return there. When asked why he had waited until 8th February 2008 to file an application to set aside a judgment made on 24th September 2007, the applicant said that he was suffering a lot because of his lack of English.
On behalf of the Minister, Ms Palmer solicitor, submitted that the applicant had given no reasonable explanation for the failure to attend and, in any event, there was no utility in setting the judgment aside.
She submitted that the notification complied with s.494B of the Migration Act and that it was appropriate in the case of two applicants to send notification to one of them and referred to the provisions of s.52(3)(c) of the Migration Act. The application to the Refugee Review Tribunal was out of time and because of that, there would be no utility in listing the application for hearing.
I accept the fact that the applicant does not speak English. He has been assisted in these proceedings by an interpreter in the Gujarati language. He clearly had the assistance of someone who prepared his original application for a visa and that person could certainly write English.
I accept the fact that the applicant did not have a migration agent at that stage.
I am satisfied that the delegate of the Minister correctly notified the applicant in accordance with s.494B of the Migration Act by forwarding the letter advising the applicants that their application was unsuccessful to the post office box number in the country town. It was that address that the applicant gave as his current postal address.
It is unfortunate that two other people use that same post office box and if it is the case that the letter was delayed, that is a problem that can only be expected where more than one person or more than one family has access to the one post office box.
There can be no error in the delegate of the Minister forwarding correspondence to the applicant at the postal address that the applicant has provided for that purpose.
The applicant did have the assistance of a migration agent in lodging the application to the Refugee Review Tribunal for review of the delegate's decision.
The Tribunal invited comments on the fact that the application appeared to be out of time and wrote to the applicants or the migration agent on 22nd September 2006 and 16th October 2006. The second letter gave a deadline for submissions of 8th November 2006.
No submissions were served and the Tribunal signed its decision on
5th December 2006.
The Tribunal can hardly be accused of inappropriate haste in making its decision and, indeed, some four weeks after the deadline for submission had expired, still no submission had been received.
In my view, the Tribunal correctly assessed the situation. It is quite clear that the time limit under s.412 of the Migration Act is a mandatory time limit and can not be varied either by the Tribunal or by order of the Federal Magistrates Court. The application for review was clearly out of time and, therefore, the Tribunal had no jurisdiction to hear the application.
The fact is that the applicant has not given a reasonable explanation for this failure to attend Court. In any event, the application to review the Tribunal decision would be doomed to fail as the Tribunal correctly decided that it had no jurisdiction.
There is an application for costs on behalf of the first respondent Minister in the sum of $700.00. This is an appropriate matter for a costs order and I am satisfied that $700.00 is an appropriate figure.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 7 March 2008
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