SZLXQ v Minister for Immigration
[2008] FMCA 662
•16 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLXQ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 662 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the application for review was lodged outside the mandatory time limits. |
| Judiciary Act 1903 (Cth), ss.39B Migration Act 1958 (Cth), ss.66(2); 412(1)(b); 474; pt.8 div.2 Migration Regulations 1994 (Cth), reg.4.31 |
| Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 |
| Applicant: | SZLXQ |
| Respondents: | MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR |
| File Number: | SYG 173 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 16 May 2008 |
| Date of Last Submission: | 16 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2008 |
REPRESENTATION
| The Applicant appeared in person assisted by a Mandarin interpreter |
| Counsel for the Respondent: | Mr T. Reilly |
| Solicitors for the Respondent: | Ms C. Kelso, Australian Government Solicitors |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 173 of 2008
| SZLXQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and pt.8 div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 7 January 2008 and handed down on 9 January 2008.
The Tribunal held that it did not have jurisdiction to entertain the applicant's application for review on the basis that the application for review had not been lodged in accordance with the statutory regime, in that it was lodged out of time.
The ground of review identified in the applicant’s application filed in this Court on 23 January 2008 is as follows:
“I applied to the Immigration Department for a protection visa on 10 August 2007. I checked my email box every day until I moved to a new address on 2 October 2007. I didn’t receive any decision notification letter of refusing my protection visa from the Immigration Department. In the beginning of November 2007 I was worried about the decision of the Immigration so I went to the Immigration Department to ask the officer about the decision of the Immigration Department. The officer checked the computer system then told me that the decision of the Immigration Department had been lodged to my original address and returned unclaimed. I was very surprised and asked the officer how to do for me. He told me I could apply to the Tribunal for review of the decision of the Immigration Department.
I lodged my application to the Tribunal for review of the decision of Immigration Department on 19 November 2007 but the Tribunal failed to consider the true fact that I didn’t receive the decision of the Immigration Department and rejected my application. I think the Tribunal’s decision is not justice. The Tribunal should give me the chance to discuss my matter with the Tribunal delegate and let me explain in details why I should be granted protection visa.”
The applicant was unrepresented before this Court although had the assistance of an interpreter and has also had the benefit of participating in the Legal Panel Advice Scheme.
The applicant appeared at a directions hearing before this Court on 10 April 2008 on which occasion she was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, any additional evidence to be relied upon and written submissions in support of her application. However, no document has been filed by or on behalf of the applicant since that date.
The applicant made no meaningful or relevant submission in support of her application other than to say she was a genuine refugee and that she thought the decision was unfair.
Section 412(1)(b) of the Act provides that an application for review of a Refugee Review Tribunal reviewable decision must be given to the Refugee Review Tribunal within the period prescribed being a period ending not less than 28 days after the notification of that decision. Regulation 4.31 of the Migration Regulations 1994 (Cth) provides that the prescribed period is 28 days for the purposes of s.412(1)(b).
RECORDED : NOT TRANSCRIBED
In the bundle of relevant documents, being Exhibit 1R, is a letter dated 11 September 2007 to the applicant addressed to the only address provided by her in her protection visa application notifying her of the Tribunal's decision. The letter states that it is sent by registered post and it has a registered post sticker with the numbers RP27769510.
On 10 October 2007 the department received back an envelope on which was registered post number 27769510 and addressed to the applicant at the only address identified by her in her protection visa application. The original of the envelope was tendered to this Court and is marked exhibit 2R. Exhibit 2R has a computer generated stamp of 12 September 2007 and is marked “Return to Sender”.
Counsel for the first respondent submits that the Court ought to draw the inference that in the circumstances that Exhibit 2R contained the letter dated 11 September 2007 notifying the applicant of the decision of the delegate of the Minister (“the Delegate”) refusing the Applicant a protection visa. There is no evidence before me to suggest that the letter was not included in the envelope and accordingly I am satisfied that it is appropriate to draw the inference that the applicant was notified of the Delegate’s decision by registered post dated 12 September 2007, such date being within three days of the date of the letter.
In the circumstances, the applicant is deemed to have received that letter seven working days after the date of the document. The date of the document is 11 September 2007 and, in the circumstances, according to the statutory regime, the applicant is deemed to have received notification of the Delegate’s decision on 20 September 2007 in accordance with s.494C(4)(a) of the Act (Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [8] (“Xie”)). In Xie the Full Court, in a joint judgment at [14], agreed with the principle identified by Spender J in Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004), 135 FCR 550 at [69] where his Honour stated:
“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 affect 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 have 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”.”
The applicant lodged her application for review of the Delegate’s decision with the Refugee Review Tribunal on 19 November 2007. The lodgement of the application for review was plainly more than 28 days after notification to her of the Delegate’s decision.
The Tribunal referred in its decision to the legislative regime to which I have referred above and was also satisfied that the content of the Delegate's decision notice complied with the requirements of s.66(2) of the Act.
The Tribunal noted that it wrote to the applicant on 26 November 2007 inviting submissions on the issue of its jurisdiction in reviewing the Delegate’s decision and noted the applicant’s response dated 5 December 2007. However, the Tribunal did not accept that the submissions provided any legal basis for accepting the review application lodged on 19 November 2007.
The Tribunal found that the applicant was properly notified of the Delegate’s decision and was taken to have been notified on 20 September 2007. The Tribunal found the application for review was not received by it until 19 November 2007, after the prescribed period had expired. The Tribunal concluded that:
“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.”
A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the legislative requirements for notification to the applicant of the Delegate’s decision and the statutory regime for the lodging of an application for review of that decision.
There is no error in the Tribunal’s decision that the application for review was received outside the mandatory time limit and was therefore not a valid application.
In the circumstances the Tribunal’s decision is not affected by jurisdictional error and therefore, pursuant to s.474 of the Act, is a privative clause decision.
The proceeding before this Court commenced by way of application filed on 23 January 2008 is dismissed with costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 25 May 2008
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