SZKPQ v Minister for Immigration

[2007] FMCA 1658

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKPQ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1658

MIGRATION – Persecution – review of Refugee Review Tribunal decision. Visa – protection visa – refusal – if an applicant appoints an authorised representative then that person becomes “the recipient” of notices referred to in the Migration Act – such notices must be addressed to the authorised representative – it is not sufficient notification that a notice reaches the authorised representative if that notice is not also addressed to the authorised representative.

Migration Act 1958, s.91X

SZFOH v Minister for Immigration & Citizenship [2007] FCAFC 63
VEAN of 2002 v The Minister for Immigration & Multicultural & Indigenous Affairs [2003] 133 FCR 570

Applicant: SZKPQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1476 of 2007

Judgment of: Cameron FM

Hearing date: 05 September 2007

Date of Last Submission: 05 September 2007

Delivered at: Sydney

Delivered on: 05 September 2007

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. A writ certiorari issue directed to the second respondent quashing the decision of the second respondent signed on 3 May 2007. 

2. A writ of mandamus issue directed to the second respondent requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated

   
   

   2 March 2004.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1476 of 2007

SZKPQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR

Respondent

REASONS FOR JUDGMENT

Introduction  

1. In this matter the applicant is a citizen of the People's Republic of China who, by application dated 7 May 2007, seeks review of the decision of the Refugee Review Tribunal (‘Tribunal’) which was signed on 3 May 2007, which was to the effect that it did not have jurisdiction to review the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs, refusing his application for a protection visa based on his fear of persecution as a Falun Gong practitioner.

2. The reason the Tribunal said that it had no jurisdiction to review the delegate's decision, or at least which appears to be the conclusion at one of the two versions of the final page of the Tribunal's decision, there being different versions appearing at pages 61 and 62 of the Court Book, was that the application for review which the applicant made to the Tribunal had been filed too late.

Background facts

1. In order for an application for review to the Tribunal to have been made in time, the Migration Act (“Act”) and the Migration Regulations (“Regulations) work together to set out what is required. Their combined effect is that an application for review must be lodged with the Tribunal within 28 days after the applicant is taken to have been notified of the decision of the Minister's delegate on the application for a protection visa.

2. In this case the applicant filed his application for a protection visa on

   
   

   9 December 2003, according to the "received" stamp appearing at

   
   

   page 1 of the Court Book. On 2 March 2004 the Minister's delegate decided to refuse the application. The delegate's decision was notified to the applicant by letter dated 2 March 2004. 

3. The applicant's application for review by the Tribunal was lodged on

   
   

   20 March 2007, according to the "received" stamp appearing at page 45 of the Court Book. On 3 May 2007 the Tribunal concluded that the application had been made out of time and thus it was not a valid application.

The Act and Regulations

1. In reviewing that decision, it is important to understand what the relevant statutory provisions are. Section 66(1) provides:

   When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. 

2. That way is prescribed in regulation 2.16, and in particular sub-reg 3(1) which provides:

   The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s 494B of the Act.

3. Section 494B provides the methods by which the Minister may give documents to a person. In particular, sub-s.4 provides for dispatch by prepaid post or other prepaid means. The section provides:

   (4)Another method consists of the Minister dating the document, and then dispatching it:

   (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.

4. Section 494C(4) provides that if the Minister gives a document to a person by the method in sub-s.494B(4), and the document was despatched from a place in Australia to an address in Australia, the person to whom it is sent is taken to have received the document seven working days after the date of the document. 

5. In this case the Tribunal found as a matter of fact that the letter notifying the delegate's decision was sent by prepaid post on 2 March 2004 to the applicant's authorised recipient's address in Australia, a copy also being sent to the applicant at his last residential address. 

6. The way the formula under the Act works is that the document is taken to have been received by the applicant seven working days after the date which the document bears, which in the circumstances of this matter is 11 March 2004, because the date of the document was

   
   

   2 March 2004.

Discussion

1. By virtue of s.412 and reg 4.31, an applicant has 28 days after deemed notification of the delegate's decision within which to lodge his or her application for review with the Tribunal. Therefore on the face of it the application lodged by this applicant was lodged outside the mandatory time limit and thus was not a valid application.

2. However, although that may have appeared to have been the case, that was not the reality. In this case the applicant had appointed an authorised representative, as is revealed by the document reproduced at page 25 of the Court Book. The effect of the appointment of an authorised representative is that all communications from the Minister or his department are to be sent to the authorised representative rather than to the applicant.

3. The fact that a document is given to the authorised representative does not prevent the document being given to the applicant as well, but any such delivery to the applicant will not satisfy the Act's notification requirements if the delivery to the authorised representative has been ineffective for some reason.

4. The requirement that the communication is to be given to the authorised representative is reinforced by the structure of the Act, which makes it clear that if an authorised representative has been appointed, then that is the person referred to in the various procedural provisions of the Act such as s.494B and 494C, which set out the methods by which documents may be given to a person.

5. The authorised representative, once appointed, becomes the "recipient" referred to in those procedural provisions, and it is to that "recipient" that notifications must be given.

6. In order that the communication is properly given to the authorised representative, the notification in question must be addressed to him or her. The authorities for such proposition are VEAN of 2002 v The Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570 and SZFOH v Minister for Immigration & Citizenship [2007] FCAFC 63 per Besanko J at [29].

7. It is therefore not sufficient that the notification be sent to the applicant care of the authorised representative, or that a letter addressed to the applicant be copied to the authorised representative. Nor would it appear sufficient that the envelope containing the letter addressed to the applicant may have actually been addressed to the authorised recipient, as Besanko's J comments in the previously referred to paragraph indicate.

8. But in any event, in the circumstances of this case, there is no evidence to demonstrate exactly how the envelope enclosing or sending the copy letter to the authorised recipient was addressed.

9. In this case the letter notifying the delegate's decision was addressed to the applicant and carbon copied to his authorised recipient, and this is found on pages 36 and 37 of the Court Book.

10. Consequently, although the notification of the delegate's decision appears actually to have been sent to the applicant, and to his authorised representative, this was not done in a fashion which satisfied the requirements of the Act. Therefore, even if the applicant had actually received the notification, which appears not to have been the case on this occasion, that would be of no significance because the procedure required by the Act, namely proper notification to the authorised recipient, was not followed.

Conclusion

1. As a result the Tribunal erred in concluding that the application for review of the delegate's decision was not a valid application because it was out of time. The Tribunal erred in concluding that it did not have jurisdiction. The applicant's application was not out of time because time has not yet commenced to run.

2. Consequently, the Tribunal's decision will be set aside and the matter remitted to the Tribunal to be determined according to law.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate: 

Date:  8 October 2007