SZKKS v Minister for Immigration
[2008] FMCA 47
•16 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKKS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 47 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution for reasons of his membership of Falun Gong – delegate’s notification sent to address shown in visa application – neither applicant nor agent gave notice of new address for receiving documents – no reviewable error. |
| JudiciaryAct 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 494B(4), 494C Migration Regulations1994 (Cth), r. 4.31 |
| NACG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 173 SZJOH v Minister for Immigration & Anor [2006] FMCA 1890 |
| Applicant: | SZKKS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1049 of 2007 |
| Judgment of: | Howard FM |
| Hearing date: | 16 January 2008 |
| Date of last submission: | 16 January 2008 |
| Delivered at: | Sydney |
| Delivered on: | 16 January 2008 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Johnson |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,500.00. The Applicant has six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1049 of 2007
| SZKKS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Respondent
REASONS FOR JUDGMENT
In this case the Applicant arrived in Australia on 18th August 2006. The Applicant is a citizen of the People's Republic of China. On
29th August 2006the Applicant lodged an application for a Protection (Class XA) visa.
The grounds for seeking such a protection visa were that the Applicant stated that she was a member or a practitioner of Falun Gong. The application for a protection visa was considered by the Minister's delegate, Mr Terence Cantwell. Mr Cantwell refused the application for a protection visa in a letter dated 28th October 2006 addressed to the Applicant at Unit 3/31-33 Knox Street, Belmore, NSW 2192.
Mr Cantwell, the Minister's delegate, advised the Applicant of his decision to refuse to grant the visa to the Applicant. That letter appears at pages 31 and 32 of the Court Book, which is Exhibit 1.
The original application for a Protection visa stated in paragraphs 14, 35 and 65 that her address was Unit 3/31-33 Knox Street, Belmore NSW 2192. The application for review of the Refugee Review Tribunal’s decision was, on the face of the document, signed by the Applicant, dated 10th January 2007 and received by the Review Tribunal on 11th January 2007. That document begins at page 40 of the Court Book. I note that in section B of that document the Applicant states her residential address in Australia as Unit 1310/157‑72 Queen Street Auburn NSW 2144.
I will first refer to s.494 of the Migration Act 1958. By s.494B(4) the Minister is entitled to provide a document to a person -
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.
By s.494C(4) the person, in this case the Applicant, is taken to have received the document 7 working days after the date of the document.
The evidence of Mr Terence Cantwell which is affirmed in his affidavit dated 24th July 2007 says that on 28th October 2006 a letter enclosing a copy of the primary decision-maker - that is in this case the delegate, Mr Cantwell - was sent by registered post to the Applicant. I note paragraphs 6 and 7 of the affidavit in that regard.
The Applicant is therefore taken to have been notified of the decision by approximately 5th November 2006. I do note that in the submissions provided by the First Respondent it is noted at paragraph 8(e) that the Applicant is taken to have been notified of the decision on 7th November 2006 and I note that it says that the document was sent by prepaid registered post on 30th October 2006.
My reading of Mr Cantwell's evidence is that the document will have been taken to have been received by the Applicant on 5th November 2006, but in any event it will make no difference whether the Applicant is deemed to have received that decision on 5th November 2006 or
7th November 2006. The discrepancy I referred to in relation to whether the document was deemed to have been received on 5th or
7th November 2006may be explained by the fact that Mr Cantwell says in his affidavit at paragraph 5 that he worked on a Saturday and it may be that the letter was not mailed until the Monday. In any event, as I have noted, it will make no difference in this case.
The application for review by reason of s.412(1)(b) of the Act should have been given to the Tribunal within 28 days after notification of the decision. It should have been given by no later than 3rd December 2006 (or perhaps on one interpretation of the material 5th December 2006). I also note that Regulation 4.31(2)(b) of the Migration Regulations 1994 is relevant in relation to this point of the time limit. As I have already noted, the application for review by the Applicant was not received by the Tribunal until 11th January 2007. The Refugee Review Tribunal therefore concluded because the review application was received out of time that it had no jurisdiction to deal with the matter.
This Court's job is to review the decision of the Refugee Review Tribunal which appears between pages 53 and 57 of the Court Book. The decision was signed on 16th March 2007 and appears to be dated on the same date, 16th March 2007. It also appears that the decision was sent on 20th March 2007.
The Applicant is self-represented and appears today with the assistance of a Mandarin interpreter. The grounds for the application which are contained in the Applicant's application under the Migration Act filed on 30th March 2007 relate only to the merits of the claim, that is to say, it relates only to the merits of the Applicant's claims that she may suffer harm and be at risk of suffering persecution should she be required to return to live in China. Those particular grounds do not address the question of the failure to lodge the review application within the time limit stipulated by the Migration Act 1958.
Today at the hearing I explained to the Applicant the purpose of this hearing and the Applicant agreed to give evidence in the witness box in relation to certain matters. The Applicant gave evidence that the application for review was not signed by her. She said that it was her name but not her signature. At this point in time I cannot specifically recall whether or not it was actually stated in evidence or whether she had said from the Bar table that the original application for the protection visa was also not signed by her. In any event, it will make no difference to my decision.
Concerning the question of the decision of the delegate, Mr Cantwell, the Applicant maintains that the address at Belmore was not her residential address and that it was included in the documents provided to the Minister or at least in the original application for a protection visa by an agent engaged by the Applicant.
The Applicant gave evidence in the witness box that paragraph 34 of the document, that is, the original application, was correct. It says that the Applicant's address in China was 59 Jiashang Road, Xuhui Town, Shanghai, China. The Applicant confirms that address is correct. That is where she lived when she lived in China.
The Applicant says, however, that in paragraph 35 (where it says that the Applicant was to provide all addresses in Australia where she had lived), where it says Unit 3/31-33 Knox Street Belmore NSW 2192, the Applicant says that that address is incorrect and was inserted in the document by the migration agent engaged by the Applicant.
Unfortunately having had the opportunity to observe the Applicant in the witness box and listen to her answers to the various questions, I do not accept her evidence that Knox Street, Belmore was not an address provided by her to the Minister in her application for a Protection Visa Form 866C. I find that that address was provided by the Applicant to the Minister. I also find that the Applicant's original application for a protection visa was signed and declared by her as indicated on the face of that document. I also find that the application for review was signed by the Applicant on 10th January 2007.
The Applicant said here today, "All these things were caused by my agent." This is a most unfortunate situation for the Applicant. It may well be that because of some involvement of her agent she has somehow failed to lodge the necessary application for review within time. There is not sufficient evidence before me to make any particular recommendation concerning the agent, whoever that agent may be.
What is perfectly clear though is this: the Applicant came to Australia; the Applicant applied for a Protection visa; the Minister's delegate refused the application for a protection visa; such decision was notified to the Applicant in accordance with the legislation; the Applicant lodged a review application to the Refugee Review Tribunal which was not received by that Tribunal until 11th January 2007. I find that all of the above matters referred to in fact occurred. I also find that the application for review was therefore lodged out of time with the Refugee Review Tribunal.
The next question is, what does that mean for the Applicant? I agree with the submissions of the First Respondent contained in paragraph 13 of the written submissions that the making of an application within the stipulated time period is a condition precedent to enlivening the Tribunal's jurisdiction. Even if it were not properly to be termed “a condition precedent”, the reality is this: that if an application comes before the Tribunal for a review but is beyond the time limit stipulated in s.412 of the Act (and the relevant regulation already referred to), the Tribunal simply has no jurisdiction to entertain the application. That has been decided in many cases.
I note a decision called NACG v Minister for Immigration & Multicultural & Indigenous Affairs[1] per Stone J. In my view, in this case the Tribunal correctly determined that it had no jurisdiction. I also note in relation to this particular point the decision of Scarlett FM dated 15th December 2006 in SZJOH v Minister for Immigration & Anor.[2] At [10] of his Honour's decision his Honour stated:
The Refugee Review Tribunal has no jurisdiction to entertain an application made out of time and is unable to consider the reasons why an application is filed late. I note that the Full Court of the Federal Court held in Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 324 at [31], [44] and [55] that the making of an application within the prescribed time is an essential preliminary to the exercise of the Tribunal's decision. Further, the terms of s.412(1)(b) are clear and the Tribunal does not have power to override the time limits limitations prescribed by that section.
[1] [2002] FCAFC 173
[2] [2006] FMCA 1890
I also note in [14] of the decision his Honour noted:
It is well established that the time limit in section 412(1)(b) is mandatory. See also SZHQH v Minister for Immigration & Anor [2006] FMCA 949 and SZECC v Minister for Immigration [2004] FMCA 1031.
Because the Applicant today is self-represented, I have considered all of the Court Book and the record generally to see whether there are any other grounds or possible grounds for review of the decision of the Refugee Review Tribunal. I have been unable to find any. In my view, there is no jurisdictional error on the part of the Tribunal. As already noted, I find that the application for review was submitted out of time; the Refugee Review Tribunal had no power to review the application and this was because the Refugee Review Tribunal did not have the jurisdiction to do so. In my view, there is no alternative but to dismiss this application.
There is an application on behalf of the First Respondent for costs. I can see no reason to depart from the usual order.
I will allow the applicant six months to pay.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Howard FM
Associate: V Lee
Date: 17 January 2008
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