SZKKC v Minister for Immigration - [2007] FMCA 532

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKKC v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 532

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – whether show cause application incompetent considered – when applicant received notification of the Tribunal decision considered – notification requires actual notification of the decision and reasons of the Tribunal by providing a copy of them.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.430D, 477, 478
Migration Litigation Reform Act 2005 (Cth)

Fish v Solution 6 Holdings Ltd [2006] HCA 22
Re Alcan Australia Ltd & Ors; Ex parte FIMEE (1994) 181 CLR 96
SZIVA v Minister for Immigration [2006] FMCA 1494
WACB v Minister for Immigration [2004] HCA 50; (2004) 210 ALR 190

Applicant:

SZKKC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG979 of 2007

Judgment of:

Driver FM

Hearing date:

12 April 2007

Delivered at:

Sydney

Delivered on:

12 April 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms B Rayment
Sparke Helmore

INTERLOCUTORY ORDERS

The Court directs that the applicant’s name is not to appear on the transcript of the hearing.
The requirement for a preliminary hearing, pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth), is dispensed with.
The matter be listed for final hearing at 10.15am on 21 June 2007 at the Law Courts Building, Queens Square, Sydney.
The first respondent is to file and serve on the applicant a bundle of relevant documents (“green book”) by 30 April 2007.
The applicant is to file and serve on the respondents any amended application, together with any affidavit evidence, by 1 June 2007.
All documents in the proceedings are to be filed at the Court registry on level 16, Law Courts Building, Queens Square, Sydney.
The applicant is to file and serve on the respondent an outline of legal submissions not less than 14 days before the hearing date.
The first respondent is to file and serve on the applicant an outline of legal submissions not less than 7 days before the hearing date. A copy is also to be e-mailed to my associate.
Liberty to either party to apply to the Court for a listing for further directions. The other party must be given 5 days clear notice of the time, date and place of that listing.
Costs of today’s hearing be costs in the proceedings as a whole.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG979 of 2007

SZKKC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a show cause application seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The application came before me this morning on a first court date. The show cause application is supported by a short affidavit from the applicant in which she simply identifies herself and annexes a copy of the Tribunal decision to which the application relates. I gave leave for the Minister's solicitor to file in Court an amended response to the application asserting that the Court has no jurisdiction to review the Tribunal decision on account of the operation of s.477(1) of the Migration Act 1958 (Cth) (“the Migration Act”). The Minister asserts that the application was not filed within 28 days of actual notification of the Tribunal decision. The Minister's response is supported by the affidavit of Nicola Johnson, also filed in Court this morning by leave, and read without objection. Ms Johnson was not required for cross‑examination.
I pointed out to the applicant this morning that her form of application was defective in that it did not include the date of the Tribunal decision or the date of her notification of it. I obtained her agreement to insert the date of 7 July 1999 as the date of the Tribunal decision based upon the front page of the decision annexed to her affidavit. I also inserted the date of 12 March 2007 as the asserted date of notification of the decision. The applicant asserts that she only obtained a copy of the Tribunal decision after being taken into immigration detention in March this year.
I permitted the applicant to give oral evidence on the question of her notification of the Tribunal decision. She told me that she had engaged a migration agent in 1999 to assist her with her review application to the Tribunal. The agent's name was Mr Qiao Juan Jun. The applicant told me that she paid Mr Qiao to do everything that was necessary to progress her review application and that she had previously engaged him to assist with her protection visa application. Although she signed documents, she did not know what was in them and left it entirely to Mr Qiao to put into her applications what he saw fit. She now believes that both per protection visa application and her review application to the Tribunal contained false details and were incomplete. The applicant told me that following the decision of the Tribunal she had a telephone conversation with Mr Qiao in which he told her that the Tribunal had affirmed the decision of the delegate. She asked Mr Qiao why the Tribunal had made its decision and he told her that the Tribunal had found that she was not qualified to obtain a protection visa. The applicant's evidence is that that is all Mr Qiao told her about the reasons for the Tribunal decision.
The applicant acknowledged that she subsequently became a party to the Muin and Lie class action, which is verified by the affidavit of Nicola Johnson. She says that she paid Mr Qiao to assist with that action and that she had no personal knowledge of what the action involved. Under cross-examination the applicant admitted that she had had three personal or telephone conversations with Mr Qiao about the Muin and Lie class action but in those conversations she simply enquired about progress. The third such conversation was in about March 2001. The applicant said that when she went to Mr Qiao's office in 2003 his office was closed and she was no longer able to contact him. From that time she made no contact with either the Minister's Department or the Tribunal. That is perhaps explained by the applicant's evidence that she had previously been taken into immigration detention in 2000 and had been released, apparently on account of her participation in the Muin and Lie class action, with the warning that she should leave Australia once that action was completed. She did not heed that warning and probably had no great desire to make contact with either the Department or the Tribunal.
The applicant states that her knowledge of English is poor notwithstanding that she has been in Australia since 8 June 1996. Her evidence is that she was entirely dependent upon Mr Qiao to attend to her interests in relation to the decision of the Tribunal and the subsequent challenge to it in the High Court proceedings.
The Minister contends that on the evidence the applicant was notified of the Tribunal decision in 1999 and that pursuant to the transitional provisions in the Migration Litigation Reform Act 2005 (Cth) she is taken to have been notified of the Tribunal decision on 1 December 2005. On that basis it would follow that the present application is substantially out of time and would be incompetent. The Minister relies upon the decision of this Court in SZIVA v Minister for Immigration [2006] FMCA 1494, in particular at paragraphs 46 and 47. The applicant submits that she was not actually notified of the Tribunal decision until she obtained a copy of it with the assistance of a friend in the immigration detention centre, where she is still held, on 12 March 2007.
In SZIVA Smith FM considered in detail the notification and time limit provisions of the Migration Act as they currently apply to proceedings in this Court. His Honour also considered the obviously relevant decision of the High Court in WACB v Minister for Immigration [2004] HCA 50; 210 ALR 190. At paragraph 27 of his judgment Smith FM said:
The language of current s.477 differs from the provision considered in WACB, in particular, because the reference to “notified of the decision” was not complicated by the requirement that notification be “actual (as opposed to deemed)”. However, the interpretation taken in that case should, in my opinion, be followed when construing the new time limit provisions. It was adopted by the High Court of Australia in relation to a predecessor provision, and should be assumed to have been in the mind of the legislature when they again used the term “notification” in s.477 (see Re Alcan Australia Ltd & Ors; Ex parte FIMEE (1994) 181 CLR 96 at 106‑107, but c.f. Fish v Solution 6 Holdings Ltd [2006] HCA 22 at [125]).
I agree with His Honour's opinion and have myself followed WACB in earlier cases. His Honour helpfully considered whether notification to an agent would be sufficient for the purposes of s.477 as it currently applies. He concluded that it would not because of the legislative reference to actual as opposed to deemed notification. I agree in particular with his Honour's observations at paragraph 41 of his judgment. Nevertheless, at paragraph 46 His Honour said:
In my opinion, s.477 requires the Court to investigate the date when the applicant to the Court personally received notice of the decision and any accompanying statements. The notice required to have been received is notice of the existence and availability to the applicant of the decision and any relevant documents. I do not consider that the language requires the Court to be satisfied in all cases that, in fact, the applicant has received actual physical possession of such documents. If an agent has been employed to receive and advise in relation to decisions, and has communicated and explained the notification to the applicant, I consider that the Court would be able to be satisfied that there has been actual notification. It is enough that a point of time can be located when the relevant documents have passed into the possession or control of the applicant, and the applicant was able, if he or she so desired, to read and take advice upon them.
In the present case, the evidence is that the applicant was informed by her migration agent in 1999 of the Tribunal decision and the essential finding that she did not satisfy the criteria for the grant of a protection visa. The applicant gave evidence, which I accept, that she had appointed her agent as her authorised recipient. It would follow that when the Tribunal sent a copy of its decision, it sent it to the applicant's authorised recipient, namely, her agent. There is not available before me at the present time any evidence that the Tribunal also sent a copy of the decision directly to the applicant. Having regard to Smith FM's decision in SZIVA, the Minister cannot have regard to general principles of agency or deemed receipt in order to support his contention that the present application is incompetent. Rather, the Minister relies upon what Smith FM says at paragraph 46 of his judgment.
The difficulty I have with those observations is that I cannot reconcile them with what the High Court said at paragraph 37 of its decision in WACB in relation to s.430D(2) of the Migration Act which still applies. Gleeson CJ, McHugh, Gummow and Heydon JJ said:
At the relevant time, the word "give" used in s 430D(2), the applicable provision in this case, was not defined. Accordingly, it is the ordinary meaning of the word, understood in its context, that must be considered. The context is that the RRT must give the applicant a copy of the written statement. In that setting, to give a document ordinarily requires its physical delivery, not some act of constructive delivery of possession which, at general law, may suffice to transfer property in a chattel. It will not be enough to communicate to the applicant orally that the document has arrived, or to communicate the gist of the document, or even to read the document to the applicant. What is required is that the written statement be physically given to the applicant. Only once this has occurred can it be said that s 478(1)(b) is enlivened and time begins to run. The appellant's evidence that the written statement was not "given" until requested by him from Ms Alamar "some" weeks after he was told of the adverse decision by the RRT has not been controverted by the Minister who had the burden of establishing the objection to competency.
In my view, the position here is the same. Although the applicant's agent orally informed the applicant of the fact of the Tribunal decision and the gist of it, that was not sufficient for the purposes of s.477. The applicant had to be physically given a copy of the statement and reasons of the Tribunal. Delivery of the statement and reasons to the applicant's agent and authorised recipient was insufficient. There is no evidence to contradict the applicant's evidence that she did not in fact receive a copy of the Tribunal statement and reasons until 12 March 2007. Although the applicant has shown an extraordinary lack of interest in obtaining a copy of the Tribunal decision until now, I accept her evidence. It follows, and I find, that her show cause application was filed within time.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 24 April 2007