SZKTL v Minister for Immigration

Case •

[2007] FMCA 1389

•

7 August 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKTL v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1389

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa.

PRACTICE & PROCEDURE – Show cause hearing – jurisdiction – whether application out of time – no jurisdiction – application dismissed.
Migration Act 1958 (Cth) s.477
Applicant: SZKTL
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 1839 of 2007
Judgment of: Scarlett FM
Hearing date: 6 August 2007
Date of last submission: 6 August 2007
Delivered at: Sydney
Delivered on: 7 August 2007

REPRESENTATION

Counsel for the Applicant: Mr Ower
Solicitor for the Respondent: Mr O’Brian
Solicitors for the Respondent: DLA Phillips Fox

ORDERS

  1. The Application is dismissed under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 as the application does not raise an arguable case for relief.

  2. The Applicant is to pay the First Respondent’s costs fixed at the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1839 of 2007

SZKTL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application to show cause.  The substantive application is an application for review of a decision of the Refugee Review Tribunal.  The Tribunal’s decision was made as long ago as 27th October 2000.  The Tribunal found then that it did not have jurisdiction to review the decision of a delegate of the Minster refusing to grant the Applicant a Protection Visa.

  2. The Applicant seeks judicial review of that decision.  He did not do so, however, until 12th June 2007, some six and a half years after the Tribunal found that it did not have jurisdiction. The Applicant applies for an order that the time for making the application be extended under the provisions of s.477 of the Migration Act.

  3. It would appear, however, if the point were to be taken, that the Court would have no jurisdiction to allow an application to be made under s.477 because the application is not only not made within 28 days after notification, it was not made within a further 56 days, assuming that the Court had the appropriate proof of notification to hand.

  4. In any event, that point was not argued before me, but what was argued was that the application did not raise an arguable case. The Applicant filed an affidavit in support of his original application in which he said:

    1.  I lodged an application for a Protection visa. The Application was apparently completed by an advisor who had written the material and the Applicant had signed blank forms and pages and had left the completion of the forms to the advisor, including all relevant text relating to the Applicant’s claims.

    2. If the Court is satisfied that there has been fraud by a migration agent, I would say, where a migration agent misleads an applicant or breaches their duty to the Applicant. 

  5. The Applicant has filed two affidavits in support of his claim. Each one was filed on 12th July.  In the first, the Applicant is the deponent.  He says, relevantly,

    2. On about 9 March 2000 I first met with my migration agent, Guanjun Qiao who arranged for my application for a protection visa to be made.  I paid him the sum of between $400 and $500 at the time and he got me to sign a document which he prepared.

    3. About 2 months later I next met with Mr. Guanjun Qiao and he gave me back my passport with a bridging visa attached.  This was my last contact with him as he subsequently went out of business and I understand he was de-registered.

    4. At no stage was I aware of the First Respondent’s decision.

    5. I did not know about the Second Respondent’s decision of the 27 October 2000 until 12 June 2007 when my friend, Fa Gan Zhou, obtained a copy of the decision on my behalf.

    6. I seek an extension of time to appeal the Second Respondent’s decision because that decision was based upon an application made by my agent for which he had no instructions or authority. Had he advised me of the First Respondent’s decision, I would have filed my appeal to the Second Respondent within time.  Had I known about the Second Respondent’s decision, I would have lodged the present application within time.

  6. The other affidavit was affirmed by a friend of the Applicant, Fa Gan Zhou, to whom the Applicant referred to in the first affidavit.  He says:

    1. I first met the Applicant in these proceedings in early 2007.  After he told me his story, I thought it strange that he had only signed one document before his migration agent. I offered to make inquiries on his behalf with the Second Respondent to see whether any application was outstanding.

    2. On 12 June 2007 I received a copy of the Second Respondent’s decision and then assisted the applicant in preparing the Application before the Federal Magistrates Court.

  7. The decision of the Tribunal can be found at pages 74 through to 78 of the Court Book.  In that decision, the Tribunal Member referred to the fact that she formed the preliminary view that she did not have jurisdiction because the review application was received outside the prescribed time.

  8. The Registry of the Tribunal wrote to the Applicant on 16th May 2000 inviting submissions on this issue. The Applicant made written submissions by letter dated 30th May 2000. On 12th October 2000, the Tribunal wrote to the Applicant again seeking further details of his submissions.  No Response had been received to that letter.

  9. The Tribunal noted that the Tribunal’s jurisdiction arises if a valid application is made under s.412 of the Migration Act, the review of an RRT reviewable decision. An application of a review must be lodged at a Registry of the Tribunal within a period not later than 28 days after the notification of the decision. There is no provision for extension of time. An application sent to the Tribunal by post or by electronic facsimile transmission is not taken to have been lodged until it is received at a Registry of the Tribunal.

  10. The Tribunal noted that the notice of the delegate’s decision was dated 21st March 2000, and that the Department’s file records indicated that the Applicant had given the Minister an address under s.53(4) of the Migration Act, the notice was sent by certified mail to that address on the 21st March 2000.  A copy was also sent to the Applicant at his residential address.

  11. The Tribunal was satisfied that the notice was properly sent to the correct address and found that the Applicant was taken to have received the notice in the ordinary course of post. The application for review was not received by the Registry of the Tribunal until 29th April 2000, which is 39 days after the notice was sent.

  12. The Tribunal noted that the Applicant, in his submissions on 30th May 2000, said that the application was lodged beyond the statutory time period because,

    Due to the Easter and long weekend in that period, I did not notice that my agent closed office for 10 days. And also I was sick at that time and I didn’t ring the agent and found out the closing time.[1]

    [1] See Court Book at page 76

  13. The Tribunal noted that the Tribunal wrote to the Applicant on the 12th October seeking further details of his submissions and any evidence in support and nothing had been received from the Applicant. The Tribunal went on to find this,

    The applicant’s submission does not rebut, or attempt to rebut, the presumption that the notice was received in the ordinary course of the post and there is nothing in the material before me to indicate that the notice was not so received.  I do not accept that 11 days, which is the difference between the 39 days taken from notification to lodge the review application, and 28 days being the statutory time limit, constitutes the ordinary course of post.

    I therefore find that the review application was lodged outside the prescribed 28-day period. 

    As the review application was received by the Tribunal outside the mandatory time limit, it is not a valid application. I have no jurisdiction to review its decision.[2]

    [2] See Court Book at pages 76-77

  14. The Applicant did not attend Court; however, he was represented by Mr Ower of counsel. Mr Ower prepared a written outline of submissions which contained a very useful chronology. He submitted that the Tribunal fell into jurisdictional error in two respects. The first, it misapplied the Postal Rule, found in s.29 of the Acts Interpretation Act 1901; and, second, it proceeded to decide the matter before the expiry of the prescribed period in reg.4.35 of the Migration Regulations applicable as at October 2000. The submissions, very helpfully, then set out the two reasons why the Applicant claims the Second Respondent fell into jurisdictional error.

  15. In respect of what is called the “Postal Rule Error”, the Applicant submitted that the Tribunal reckoned 39 days from the date of the First Respondent’s letter advising the decision to the receipt of the application for review. It later deduced, by subtracting the statutory appeal period of 28 days, that it would need to find 11 days as the “ordinary course of post” to be able to accept jurisdiction. The Second Respondent did not refer to s.160 of the Evidence Act 1995, despite the reference to that provision in s.29(2) of the Acts Interpretation Act 1901.

  16. Section 160 of the Evidence Act 1995, presumes, unless evidence to raise sufficient doubt about the presumptions it used, that a pre-paid postal article is received on the ‘fourth working day after having been posted’. The First Respondent’s letter was posted on a Tuesday; the fourth working day thereafter was Monday 27th March 2000. The filing date of the application was 32 days thereafter or, in other words, four days outside the limitation period. Three public holidays fell within this period.  Therefore, one possible view of the evidence was that the application was effectively only one day late.

  17. The Second Respondent did not turn its mind, as it was submitted, as to whether the presumption raised by s.160 of the Evidence Act 1995 was displaced (and the four-working day rule lengthened) by the fact that the First Respondent’s letter was ‘returned to sender’.  Rather, it chose to confine its inquiries to whether 11 days could possibly constitute the ordinary course of post.  By so confining its inquiry, it is submitted the Second Respondent fell into jurisdictional error.

  18. The second error which the Applicant claims is called the “Prescribed Period Error”. The submission goes that on 12th October 2000, the Second Respondent wrote to the Applicant seeking further information concerning a number of issues pertinent to the limitation question. The letter specified that the Applicant had to respond in writing ‘no less than 14 days from the date of this letter’. The letter was clearly an invitation, pursuant to s.424B of the Act, the Applicant submits, and sub-s.2 of that section requires that the period specified in the invitation to be a ‘prescribed period’. The relevant ‘prescribed period’ as specified by reg.4.35(3) to “start(s) when the person receives the invitation and ends at the end of 14 days after the day on which the invitation is received”. No point is taken by the fact that the prescribed period is wrongly described in the letter of 12th October 2000.  However, the Second Respondent did not have the power to proceed to make the decision on jurisdiction without waiting for that period to expire.

  19. The decision was made 15 days after the letter was sent.  By virtue of the same deeming postal rule, legislation noted above, the Second Respondent, it is submitted, failed to wait for the expiry of 14 clear days after the letter could be deemed to have been received before proceeding to its decision.

  20. I will deal with the second ground first. In my view, s.424B of the Migration Act does not apply in procedural matters of this nature. Section 424B is clearly intended to apply to matters going to the substantive application. It does not, in my view, matter that the Tribunal imposed a time limit for submissions and then made its decision at a period less than the time limit prescribed. It certainly is not the case that a further submission was received in the evidence before me.

  21. But, in any event, the question of jurisdiction under s.412 of the Migration Act is absolute. The time limit in the section is mandatory. If the application is made within time, there is jurisdiction. If it is not made within time, the Tribunal has no jurisdiction. Therefore, whether the Tribunal handed down its decision earlier than the time prescribed by the letter to the Applicant for the return of any comments does not affect the decision.

  22. I turn to what the Applicant’s counsel has described as the “Postal Rule Error”.  I note the calculations and I note that there was no objection to the reckoning of the public holidays that applied during that period.  Mr Ower submits, on behalf of the Applicant, that the filing date of the application was 32 days after the date of the posting of the First Respondent’s letter, which meant four days outside the limitation period.  As he submitted, three public holidays fell within this period and, therefore, one possible view of the evidence was that the application was effectively only one day late.

  23. That possible view of the evidence is, to my mind, the most generous view of the evidence that can be considered. In fact, that is taking the Applicant’s case at its highest. But even accepting that submission, the application was one day late. The time limit prescribed by s.412 of the Migration Act is mandatory. Whether the application was one day later or four days late is irrelevant because if the application is out of time, the Tribunal has no jurisdiction.

  24. I am satisfied that the application, even on the most generous view, was received out of time and that the Tribunal correctly found that it had no jurisdiction. I order, therefore, that the application is dismissed under r.44.12(1)(a) as the application does not raise an arguable case for relief.

  25. This is a matter for costs, it is clear the Applicant should pay the First Respondent’s costs.  The amount of $3,000.00 is sought. The scheduled fee is $2,500.00. Mr Ower submits, on the Applicant’s behalf, that $2,500.00 is appropriate being the scheduled fee. I am inclined to agree.  The Applicant is to pay the First Respondent’s costs fixed at the sum of $2,500.00.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM.

Associate:  V. Lee

Date:  15 August 2007


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