SZKIU v Minister for Immigration
[2007] FMCA 1440
•7 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKIU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1440 |
| MIGRATION – Decision of delegate – 28 days to lodge application for review – notification of decision sent properly – application invalid – s.494C(4) is without qualification as to when a person is taken to have received notification. |
| Migration Act 1958 (Cth), ss.66, 411(1)(c), 412(1)(b), 474, 494B, 494C(4), 494D Migration Regulations 1994 (Cth), r.4.31(2) |
| Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657 Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 |
| Applicant: | SZKIU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 865 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 7 August 2007 |
| Date of Last Submission: | 7 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 August 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr G. Johnson of DLA Phillips Fox |
ORDERS
The application and amended application are dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $3,100.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 865 of 2007
| SZKIU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 15 March 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 20 February 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant lodged an amended application on
7 June 2007.
The applicant was born on 6 March 1977 and claims to be from China, and of Chinese ethnicity.
The applicant arrived in Australia on 13 November 2006 and lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs on
22 November 2006. In this application he claimed that he was persecuted by the Chinese authorities because of his Falun Gong practices. The applicant claimed that in May 2004 he was arrested and detained for two days and his name “put into record”. The applicant claimed that he was called to a brainwashing centre four times, and suffered mental and physical torture from the Chinese government because of his belief in Falun Gong (Court Book “CB” 36).
This application was refused by a delegate of the first respondent on 25 November 2006 (CB 39-47). A letter was sent notifying the applicant of this decision on 27 November 2006 (CB 73). The letter was returned to the Department unclaimed on 10 January 2007 (CB 48).
On 12 January 2007 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 59). By letter dated 19 January 2007, the Tribunal advised the applicant that it had no power to consider his review application as it was received out of time (the letter was sent to his Queen Street address – CB 65). The letter invited the applicant “to comment and provide further information on eligibility issue(s)”. On 23 January 2007 the applicant advised the Tribunal in writing of a change in his contact details. The Tribunal therefore used the latest address it had when it sent the letter dated 19 January 2007.
By decision signed on 20 February 2007, the Tribunal found that it did not have jurisdiction to review the applicant’s application. The Tribunal found at CB 74-5 as follows (highlighting added):
The Tribunal has before it the Department’s file relating to the applicant.
The Tribunal is satisfied that the contents of the delegate’s decision notification complied with the requirements of s.66(2).
The Department’s file records indicate that the applicant did not give the Minister written notice of the name and address of his authorised recipient under s.494D.
The decision notification letter was dated 25 November 2006 and sent by prepaid registered post on 27 November 2006 from a place in Australia to the applicant’s address in Australia provided to the Minister for the purposes of receiving documents.
The Tribunal finds that the decision notification letter was dispatched within 3 working days of the date of the letter to the applicant’s correct address, in accordance with s.494B(4). Therefore, the applicant is taken to have received the notice on 5 December 2006, being 7 working days after the date of the notice. This is so even though the notice was returned unclaimed.
The Tribunal finds that the applicant is seeking review of the delegate’s decision under s.411(1)(c) and that the 28 days prescribed period set out under s.412(1)(b) and r.4.31(2)(b) applies. Therefore, given the Tribunal’s findings regarding when the applicant was notified of the delegate’s decision and the applicable prescribed period, the Tribunal finds that the last day that the application for review could be lodged ended on 2 January 2007.
The application for review was not received by the Tribunal until 12 January 2007, after the prescribed period had expired.
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.
The Tribunal does not have jurisdiction in this matter.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to the Migration Act 1958 (Cth).
The application
In his application, the applicant set out the following grounds:
(1)Department of Immigration & Citizenship did not notify me the decision from the department. I lost the opportunity to get my application to be reviewed at RRT.
(2)RRT did not accept my application for review because of Department of Immigration & Citizenship’s jurisdictional error.
(3)There is no evidence that the application decision was received by me. I did not receive the decision from DIAC.
The applicant’s amended application filed on 7 June 2007 set out the following grounds:
(1)Department of Immigration & Citizenship failed to notify me the decision, I was not given an opportunity to lodge my application for review on time, and my case was therefore unaccepted by the Refugee Review Tribunal. DIAC should resend me the decision letter so that I can lodge my review application on time.
(2)RRT should accept my application for review based on exceptional reasons.
The decision of the delegate is not affected by a failure to give notification of the decision to the applicant (s.66(4) of the Migration Act) In accordance with s.494B of the Act, the decision was sent by prepaid post to the residential address provided to the Minister by the applicant for the purposes of receiving documents (CB 25).
The applicant was seeking to review the decision of the delegate pursuant to s.411(1)(c) of the Act. Section 412(1)(b) provides that an application for review of an RRT reviewable decision must be given to the Tribunal within 28 days after notification of the decision.
The Tribunal found that the notification letter was sent to the applicant within 3 working days of the date on the letter of
25 November 2006. Therefore the applicant is taken to have received the notice on 5 December 2006, being 7 days after the date of the notice. The Tribunal found that this is so even though the notice was returned unclaimed. The Tribunal was correct in so deciding. Section 494C(4) provides:
Dispatch by prepaid post or by other prepaid means
(4)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; or
(b) in any other case – 21 days after the date of the document.
The Court accepts the submission for the first respondent that:
The effect of section 494C(4) has been found to be ‘without qualification’: Murphy v MIMIA [2004] FCA 657 per Spender J. The Full Court of the Federal Court agreed with Spender J in Xie v MIMIA [2005] FCAFC 172 at [14]. As such the applicant must be ‘taken to have received’ the delegate’s decision within the meaning of the expression ‘notification of the decision’ in reg.4.31(2) of the Regulations.
The Tribunal concluded correctly that the last day that the application for review could be lodged ended on 2 January 2007. The application for review was received by the Tribunal on 12 January 2007. It was therefore lodged out of time and was invalid. The Tribunal was therefore correct in concluding that the application was not valid and that it did not have jurisdiction in this matter.
Findings of the Court as to the grounds in the application
Ground one complains that the Department did not notify the applicant of the decision. The notification was sent to the address provided by the applicant. The provisions of the Act relating to notification of decisions were complied with. Ground one is rejected.
Ground two complains that the Tribunal did not accept the applicant’s application because of jurisdictional errors. The Tribunal was correct in not accepting the application as it had been lodged out of time and, therefore, was invalid. Ground two is rejected.
Ground three complains that the applicant did not receive the decision from the Department. The applicant has stated to the Court that he did not receive a copy of the decision, yet in his application filed with the Court on 15 March 2007 the applicant included a copy of the decision. The Department complied with the requirements in the Act for notification of a decision. No breach of the Act occurred. Ground three is rejected.
Findings of the Court as to the grounds in the amended application
Ground one complains that the applicant was not given an opportunity to lodge his application for review. The requirements of the act as to notification of decisions were complied with. No error of law occurred. Ground one is rejected.
Ground two submits that there are exceptional reasons why the Tribunal should accept the applicant’s application. The relevant provisions of the Act do not provide for an extension of time or for accepting applications out of time if there are exceptional reasons. Ground two is rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been affected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 21 August 2007
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