SZLXG v Minister for Immigration
[2008] FMCA 442
•9 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLXG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 442 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZLXG”. |
| Acts Interpretation Act 1901 (Cth) Migration Act 1958 (Cth), s.91X |
| Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 324 Murphy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 657 Singh v Minister for Immigration & Multicultural & Indigenous Affairs [1999] FCA 353 Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 281 Vean of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 311 Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 |
| Applicant: | SZLXG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 121 of 2008 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 20 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 9 April 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr T Ower |
| Solicitors for the Respondents: | Ms K Hooper of DLA Phillips Fox |
ORDERS
The application filed on 16 January 2008 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 121 of 2008
| SZLXG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicant is from Liaoning province in the People’s Republic of China and was born in February 1966. She claims that through her father she had been a member of Falun Gong since July 1997. She claims that she practiced every morning in a Wangliutang park but since 1998 she practiced at home as the government had deemed Falun Gong an evil religion.
The applicant claims that in 2004 friends started to join her to practice the religion. No explanation was given to the delegate of the minister as to her activities between 1998 and 2004 or why friends started to join her to practice Falun Gong in 2004. The applicant claims that the authorities took action in December 2005 when her father was arrested. She claims that he was released in February 2006 and re-arrested in April 2007. The applicant claims that she was a member only and did not indicate that she was involved in any other Falun Gong activities which would create a profile that would attract any significant adverse interest by the authorities.
The applicant was issued with a passport on 15 May 2006 and departed China legally. She indicated that she did not encounter any difficulties when departing. The applicant arrived in Australia on 21 July 2007 and filed a Protection (Class XA) Visa application with the Department of Immigration & Citizenship on 31 July 2007. The delegate refused to grant the visa on 6 September 2007, notified the applicant of the decision by a letter dated and posted on 6 September 2007.
The applicant applied to the Tribunal on 12 November 2007 for a review of the delegate’s decision. A Tribunal formed the preliminary view that it did not have jurisdiction because the application for review was filed outside of the prescribed time limit and the Tribunal was required to determine whether the application was valid under s.412 of the Act. On 23 November 2007, the Tribunal wrote to the applicant inviting submissions. A reply containing written submissions was received on 17 December 2007.
The Tribunal found that the applicant was properly notified of the delegate’s decision on 18 September 2007. Therefore, the prescribed period of 28 days within which an appeal application could be filed expired on 16 October 2007. The application for review was not received by the Tribunal until 12 November 2007, after the prescribed period had expired. The Tribunal held that the application for review was received by the Tribunal outside of the mandatory time limit, was not a valid application and the Tribunal had no jurisdiction in the matter.
A Court Book (“CB”) prepared and filed by the first respondent solicitors is marked Exhibit “A” and is the only evidence before this Court. At the hearing, Mr Ower sought leave to file an amended application which contained the following grounds:
1. The second respondent failed to exercise jurisdiction as a result of wrongly determining that the application was lodged outside of the time limit of 28 days prescribed by s.412(1)(b) of the Act.
a) The second respondent should not have relied upon the “deeming” provisions of s.494C of the Act where there was evidence that the first respondent’s decision had not actually been received by the applicant and the first respondent had written notice of the applicant’s authorised recipient.
2. The second respondent should have reckoned time by reference to s.494D of the Act as this would have been more consistent with a purposeful and contextual construction of the Act and with its s.420 obligations.
No objection was raised in respect to this application so leave was granted.
The relevant chronology:
31 July 2007 Application for protection visa (CB 3-29)
6 September 2007 Decision of first respondent (CB 38-46)
25 September 2007 Application appoints agent to act on her behalf (CB 47-51)
27 September 2007 Registered mail enclosing first respondent’s decision returned to the first respondent undelivered. (CB 65-66)
12 November 2007 Application lodged with second respondent. (CB 67-70)
Tribunal’s decision
In the Tribunal’s “Findings and Reasons” the following statements appear:
The Tribunal finds that the applicant is seeking review of an RRT-reviewable decision covered by s.411(1)(c) and that the applicable prescribed period is 28 days, commencing on the day on which the applicant was notified of the decision: s.412(1)(b) and r.4.31(2)(b).
The Tribunal is satisfied that the contents of the delegate’s decision notice complied with the requirements of s.66(2).
The material before the Tribunal indicates that the applicant did not give the Minister written notice under s.494D of the name and address of an authorised recipient and that the decision notice, dated 6 September 2007, was sent by prepaid post on 6 September 2007 from a place in Australia to the applicant at an address in Australia, being the last residential address provided to the Minister by the applicant for the purposes of receiving documents. This letter was returned unclaimed to the Department and received on 27 September 2007.
The Tribunal finds that the decision notice was dispatched within 3 working days of the date of the letter to the correct address, in accordance with s.66(1) and s.494B(4). Therefore, the applicant is taken to have received the notice on 18 September 2007, being 7 working days after the date of the notice. This is so even though the notice was returned and unclaimed.
The Tribunal has also had regard to the applicant’s submissions received by the Tribunal on 17 December 2007 (by letter dated 16 June 2007), in relation to the question of jurisdiction. The applicant claimed that she did not receive the advice regarding the registered mail item at her address. The applicant also noted that she appointed a representative and authorised recipient on 25 September 2007 (19 days after the Department delegate issued their decision) and that she subsequently notified the Department on Form 956 ‘Appointment of Migration agent or exempt agent or other authorised recipient’.
It is noted that Departmental records indicate that on 6 November 2007 the applicant’s newly appointed representative contacted the Department and advised that the applicant had not received the decision notification letter. The representative requested a copy of the decision notification letter be sent to her. The delegate sent a copy of the decision to this address on 6 November 2007.
The Tribunal finds that the second letter does not constitute re-notification; it was only providing a copy of the letter and decision already notified. As the Tribunal found the first notification to have complied with the statutory requirements, it does not have jurisdiction where the application for review is lodged outside the prescribed time limit. The Tribunal does not accept that these submissions provide any legal basis for accepting the review application lodged on 12 November 2007.
The Tribunal finds that the applicant was properly notified of the delegate’s decision and is taken to have been notified on 18 September 2007. Therefore, the prescribed period of 28 days within which the application for review could be lodged ended on 16 October 2007.
The application for review was not received by the Tribunal until 12 November 2007, after the prescribed period had expired.
Accordingly, and based on the law as the Tribunal understands it, 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 in this matter.
Consideration
Section 412 – application for review by Refugee Review Tribunal – requires:
(1) An application for review of an RRT‑reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
Regulation 4.3(1)- applications – states:
(1) For the purposes of paragraph 412(1)(b) of the Act, each period stated in sub-regulation (2) is prescribe as a period within which an application for review of an RRT – reviewable decision to which the period applies must be given to the Tribunal.
(2) A period mentioned in sub-regulation (1) commences on the day on which the applicant is notified of the decision to which the application relates, and ends at the end;
(a) …
(b) in any other case – 28 days
Note: part of the regulation
If the Minister gives a person a document by a method specified in s.494B of the Act, the person is taken to have received the document at the time specified in s.494C of the Act in respect of the method.
The Tribunal has no jurisdiction to entertain an application made out of time. Sections 412 and 414 of the Act clearly stipulate that the making of an application within the prescribed time is an essential preliminary to the exercise of the Tribunal’s jurisdiction: Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 324 per Heerey J at [31]:
[31] In my opinion Blue Sky does not assist the appellant. On the contrary, s412 and s414 clearly stipulate that the making of an application within the prescribed time is an essential preliminary to the exercise of the RRT's function. Moreover, this is not a case like Blue Sky or Murphy that is within the Normandin principle. This is not a case where individuals would suffer if invalidity were to flow from some default within the administration of a public authority that is entirely beyond the control of the individual. Here the individual, the applicant for a protection visa, is the person who has to perform the act stipulated by Parliament as an essential preliminary to the RRT's jurisdiction.
Finkelstein J at [44]:
[44] Therefore it is necessary to consider whether s412(1)(b), on its proper construction that takes into account the purpose and object of the legislation, requires the conclusion that an application for review lodged beyond the prescribed period is of no effect. I have formed the view that this should be so. What follows are my reasons for that conclusion.
And Dowsett J at [55]:
[55] I have read the reasons prepared by Heerey J and Finkelstein J. I am in general agreement with their Honours' reasons and concur in the proposed orders.
The terms of s.412(1)(b) are clear that the Tribunal does not have power to override the time limitations prescribed in s.412(1)(b); Vean of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 311 per Gray, Whitlam and Mansfield JJ at [33] where their Honours state:
… There is a Full Court decision of this Court to the contrary: Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324; (2000) 97 FCR 407. Some analogy was sought to be drawn from the Tribunal’s obligation to accord procedural fairness to the appellant: see eg Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ‘A’ [2001] HCA 77; Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57. The analogy is misconceived. The issue is not the procedural obligations imposed upon the Tribunal in performing its review function under the Act, but whether the Tribunal had power to entertain the application for review lodged out of time. An alternative argument was presented based upon s 420 of the Act, but that section does not provide any reason to read s 412(1)(b) other than according to its terms. The terms of s 412(1)(b) are clear. They do not admit of qualification. There is no challenge to the validity of s 412(1)(b) on this appeal. The Tribunal, in the circumstances it found to exist, correctly applied s 412(1)(b) and concluded it had no valid review application before it.
Ms Hooper in her written submissions submits that neither the Tribunal nor this Court in reviewing the Tribunal’s decision has the discretion to extend time even though such a result may appear to be harsh and unfair. In support of this contention, Ms Hooper referred to the decisions in Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 281 per Hartnett FM at [15] and Singh v Minister for Immigration & Multicultural & Indigenous Affairs [1999] FCA 353 per Wilcox J at [8]-[9] where His Honour stated:
[8] Mr Ramrakha says the fact that the application for review was lodged one day late is a technicality; accordingly, it is not binding on the Tribunal and the Tribunal ought to act in accordance with substantial justice and the merits of the case by proceeding to a review on the merits. This submission must be rejected. S420 is concerned with the manner of exercise of the Tribunal's powers. It is not concerned with the circumstances in which the Tribunal has jurisdiction. If an applicant fails to enliven the Tribunal's jurisdiction, by failing to lodge an application in the approved form, within the prescribed time or accompanied by the prescribed fee, the Tribunal has no power to carry out a review. Consequently, the provisions dealing with the manner of exercise of its review powers do not arise.
[9] I have some sympathy for the applicant. It seems hard that he should be deprived of the opportunity of a review by the Tribunal of the delegate's decision because of a delay of only one day. However, Parliament has set time limits, no doubt for good reasons, and has made no provision for those time limits to be extended. Applicants who wish to take advantage of the statutory right of review must comply strictly with the statute's requirements concerning invocation of that right. The application must be dismissed.
Ms Hooper submits that the applicant was validly notified of the delegate’s decision pursuant to s.66 of the Act which requires:
Notification of decision
(1) …
(2) Notification of a decision to refuse an application for a visa must:
(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa--specify that criterion; and
(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa--specify that provision; and
(c) unless subsection (3) applies to the application--give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500--state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made.
(3)…
(4)…
(5)…
The Department’s notification letter and the decision record (CB 36-46) were sent in accordance with the requirements of s.494B(4) which states:
Methods by which Minister gives documents to a person
Coverage of section
(1) For the purposes of provisions of this Act or the regulations that:
(a) require or permit the Minister to give a document to a person (the recipient ); and
b) state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.
Giving by hand
(2) One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.
Handing to a person at last residential or business address
(3) Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:
(a) is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and
(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(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.
Transmission by fax, e‑mail or other electronic means
(5) Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) e‑mail; or
(c) other electronic means;
to the last fax number, e‑mail address or other electronic address, as the case may be, provided to the Minister by the recipient for the purposes of receiving documents.
When the Minister hands a document by way of an authorised officer
(6) For the purposes of sections 494C and 494D, a reference in those sections to an act of the Minister includes, if the act is of a kind referred to in subsection (2) or (3) of this section, a reference to an act of the Minister by way of an authorised officer.
The decision notice was sent to the applicant’s most recent residential address which was provided by her to the Department – a notice of change of address signed on 21 August 2007 and received by the Department date stamped 4 September 2007 (CB 34-35). The decision notice was signed on 6 September 2007 and forwarded to her residential address by registered post (reference number RPT7834886) on that date which is recorded in the Department’s outgoing registered post – report (CB 79-80); (CB 100); (CB 105.8).
Ms Hooper submits that the Tribunal was correct to find that the applicant was deemed to have received the decision notice seven working days after the date of dispatch in accordance with s.494C.
When a person is taken to have received a document from the Minister
(1)…
(2) …
(3)…
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 …
Subsequent to the dispatch of the decision record by the delegate, the applicant completed a form 956-“Appointment of a migration agent or otherwise authorised recipient”. In that document, the applicant appointed an agent identified as Ms Weiming Quian of Eternity International (AUST) Pty Ltd of Post Office Box 367 Auburn NSW. The nomination form is signed by the agent on 25 September 2007 and the applicant on the same date (CB 51).
I note that the copy of the form 956 contained in the Court Book does not carry a departmental date stamp anywhere on that document. However, I note in the Tribunal’s decision under the heading “Findings and Reasons” contains the following statement:
The applicant also notes that she appointed a representative and authorised recipient on 25 September 2007 (19 days after the Department delegate issued their decision) and that she subsequently notified the Department on Form 956 “Appointment of Migration Agent or exempt agent or otherwise authorised recipient”.
I also note that the post office box recorded on the form 956 (CB 48 and CB 87) differs from the post office box number of Eternity International as recorded on the “Tribunal Application for Review” form (CB 68) although both documents were signed by Ms Quian.
On 27 September 2007, the Department received the registered postal item addressed to the applicant marked “Return to sender – unclaimed” dated 25 September 2007.
The applicant wrote to the Tribunal on 12 November 2007 indicating that:
i)she was aware that her application for a visa was refused on 6 September 2007;
ii)she did not receive the notification letter;
iii)on 26 September 2007 she appointed an agent to act on her behalf and attended the department offices but was not notified on that date that her visa application had been refused;
iv)the agent attended the department on 6 November 2007 enquiring as to the applicant’s status and was advised it was refused on 6 September;
v)the applicant attended the department on 12 November 2007 and was advised that a notification letter had been returned to the department; and
vi)the applicant lodged with the Tribunal an application for review of the delegate’s decision.
The Tribunal on 23 November 2007 wrote to the applicant’s agent an “Invitation to comment and provide further information on eligibility Issues” letter indicating:
Applications to the Tribunal must be made within 28 calendar days of being notified of the Department of Immigration & Citizenship’s (the Department’s) decision.
The Department’s letter is taken to have been received seven (7) working days after the date of the letter, even if it was not received.
Our records show that you were notified of the Department’s decision to refuse you a protection visa by letter dated 6 September 2007.
Therefore:
· You are taken to be notified of the decision on 18 September 2007.
· The last date to apply to the Tribunal was 16 October 2007.
· The Tribunal did not receive your application until 12 November 2007. (CB 83)
Ms Hooper referred the Court to the decision in Murphy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 657 where His Honour Spender J considered the issue where notification was given by the Minister by prepaid post to an address that was the last address of service provided by the applicant in the circumstances where the Minister was aware that the letter of notification would be returned undelivered. At [69] His Honour stated:
[69] The person is “taken to have received the document”, in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only “until the contrary is proved”. (emphasis added)
In Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 per Spender, Kiefel and Dowsett JJ at [13] their Honours stated:
[13] …Subsection 494C(4) does not purport to create a rebuttable presumption of fact. It provides that in certain circumstances, a person is to be ‘taken to have received the document … ’. Nothing in the section suggests that this is merely a rebuttable presumption…
Mr Ower, appearing for the applicant, submitted that the Tribunal erred in relying upon s.494C in the circumstances of this matter because before the exploration of the 28 day limitation period the Tribunal was aware of the “return to sender” registered mail notification and the fact that the applicant had appointed an authorised recipient. Mr Ower refers the Court to s.494D of the Act which states:
Authorised recipient
(1) If a person (the first person ) gives the Minister written notice of the name and address of another person (the authorised recipient ) authorised by the first person to do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person.
Note: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
(2) If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.
(3) The first person may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person's authorised recipient.
(4) The Minister may communicate with the first person by means other than giving a document to the first person, provided the Minister gives the authorised recipient notice of the communication.
Mr Ower argues that s.494D of the Act imposes a mandatory obligation on the Minister’s delegate to notify the applicant’s authorised recipient and that it was an error to construe the Act as defeating the applicant’s right to appeal in the circumstances of this matter. Mr Ower acknowledges that the applicant’s appointment of an authorised recipient “did not retrospectively change her address of service”. Mr Ower argues that the particular circumstances within this matter cannot simply be ignored particularly when only two days after the department became aware of its actual failure to notify the applicant by registered mail.
Mr Ower argues that a purposeful and contextual statutory construction of s.494C would be that in these particular circumstances s.494D would be enliven thereby negating the operation of s.494C. By applying this statutory interpretation to the provisions, the Minister’s delegate would be obliged to notify the authorised recipient and the 28 day limitation period did not begin to run until this had occurred. Mr Ower did not venture any authorities to support this contention other than to suggest that the authorities relied on by Ms Hooper in Murphy and Xie were addressing a different set of legislative provisions than those which applied in this matter.
I do not disagree with Mr Ower as both of these authorities were dealing with the migration provisions of the Act as opposed to the refugee provisions. However, a number of the key provisions relevant to both cases overlap and apply equally to both migration and refugee decisions.
I am further guided by the decision in Xie v Minister for Immigration & Multicultural & Indigenous Affairs in [16] of that decision where their Honours referred to the ActsInterpretation Act 1901 (Cth) s.29 which provides:
Meaning of service by post
(1) Where an Act authorizes or requires any document to be served by post, whether the expression “serve” or the expression “give” or “send” or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.
Then at [17] their Honours state:
Of course the reference to receipt in the ordinary course of post displaced by the express provisions of s.494C. We also note that in Vean of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 133; (2003) 133 FCR 578 at [29], the Full Court appears to have assumed that the use of registered post was consistent with s.494B.
Conclusion
In the absence of any authority indicating that I should divert from the authority quoted by Ms Hooper which are set out above, I believe I am bound to follow the construction as interpreted in those decisions and thereby conclude that the Tribunal decision is not vitiated by jurisdictional error. I am satisfied that the application should be dismissed with costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date:
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