SZLZH v Minister for Immigration - [2008] FMCA 597

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLZH v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 597

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision that it had no jurisdiction to review the delegate’s decision because the application was lodged out of time – applicant claims she was not notified of the delegate’s decision – no reviewable error.

Migration Act 1958 (Cth), ss.66(1), 411, 412, 474(2), 494B, 494B(4), 494C(4)(a), 494C(4)(c)

Fernando v Minister for Immigration & Multicultural & Indigenous Affairs [2007] 97 FCR 407

Applicant:

SZLZH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 360 of 2008

Judgment of:

Scarlett FM

Hearing date:

28 April 2008

Date of Last Submission:

28 April 2008

Delivered at:

Sydney

Delivered on:

28 April 2008

REPRESENTATION

Counsel for the Applicant:

Nil

The Applicant:

Appeared in person

Appearance for the Respondents:

Ms Kantaria

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The applicant is to pay the first respondent's costs fixed in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 360 of 2008

SZLZH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The applicant is a citizen of China. She is asking the Court to review a decision of the Refugee Review Tribunal. The Tribunal found that it did not have jurisdiction to deal with her application for review of a decision of a delegate of the Minister for Immigration & Citizenship.
The applicant claims, amongst other things, she has been denied procedural fairness because she did not receive notification from the Department of Immigration & Citizenship in time. As a result, she claims her application for review was not lodged until it appeared to be out of time. She claims that the Tribunal is wrong and that she was not notified until later and therefore the time for an application for review had not expired by the time she applied.
The applicant applied to the Department of Immigration & Citizenship for a protection (Class XA) Visa on 6^th September 2007. She seeks protection on the basis that she is a practitioner of Falun Gong.

She provided a three-page statement with her application. She claimed that she has suffered persecution in China and she had to leave.
The Department wrote to the applicant on 5^th September 2007 acknowledging receipt of her application. The letter was addressed to the address given by the applicant in a suburb of Sydney. The delegate of the Minister again wrote to the applicant on 19^th September.

That letter invited the applicant to attend an interview to take place on Tuesday, 16^th October. The letter asked the applicant to telephone the delegate to confirm the interview by Friday, 28^th September.

The applicant did not telephone the delegate and the delegate made a decision on 17^th October 2007 refusing the application for a protection visa.
The applicant applied to the Refugee Review Tribunal on

30^th November 2007
seeking a review of the delegate's decision.

The Tribunal wrote to the applicant on 12^th December asking her to comment and provide further information about eligibility issues.

The letter told the applicant:
We received your application for review on 30 November 2007. Unfortunately, it appears your application reached us too late. The Tribunal has no power to consider late applications.[1]
[1] See Court Book page 65
The applicant replied on 17^th December 2007, saying, amongst other things:
I didn't receive letter from DIAC until on 6 December 2007. Attached the envelope of original. Please, you check it. I need have an opportunity to review the decision of DIAC because I want to have a hearing give the Tribunal evidence to support my application.[2]
[2] See Court Book page 67
The Tribunal signed its decision on 23^rd January and handed it down on 24^th January 2008. The Tribunal found that it did not have jurisdiction in the matter. A copy of the Tribunal decision record can be found in the Court Book at pages 69 through to 73. In the Tribunal's findings and reasons, the Tribunal found that the applicant was not in immigration detention when notified of the decision. The Tribunal noted that the applicant was seeking review of an RRT reviewable decision covered by sub-s.411(1)(c) of the Migration Act, and the Tribunal noted that the prescribed period for applying for review is 28 days, commencing on the day on which the applicant was notified of the decision.[3]
[3] See s.412(1)(b) and reg.4.31(2)(b)
The Tribunal noted that the applicant had not given written notice of the name of an address of an authorised recipient and that the decision was sent by prepaid post on 17^th October 2007 to the applicant at her last residential address provided for the purpose of receiving documents. The Tribunal found that the decision notice was dispatched within three working days of the date of the letter to the correct address. Accordingly, the applicant was taken to have received the notice on 26^th October 2007, being seven working days after the date of the notice. The Tribunal noted that the applicant contacted the Department on 30^th November 2007 to inquire on the progress of the case, and advised that she had not received any correspondence.

The Tribunal said:
According to these records, the applicant advised that she had not received any correspondence regarding her case and claimed to be unaware that a decision had been made on her case. The applicant also confirmed that she had not changed her address details.[4]
[4] See Court Book page 73
The Tribunal considered, but rejected, the applicant's submissions that she had not received the decision notice until 6^th December 2007 and found the applicant was properly notified of the delegate's decision and was taken to have been notified on 26^th October 2007. Accordingly, the prescribed period of 28 days within which the application for review could have been lodged ended on 23^rd November 2007. However, the applicant's application for review was not received by the Tribunal until 30^th November, a week later. That was after the prescribed time had expired. The Tribunal found it did not have jurisdiction in the matter.
The applicant has applied to the Court for judicial review of the decision. In her application she seeks orders setting aside the decision of the Tribunal and an order in the nature of Mandamus addressed to the Tribunal requiring her application for a protection visa to be heard and determined according to law.
The applicant sets out three grounds. She claims that the Tribunal decision was affected by jurisdictional error in that the Tribunal failed to comply with its obligation pursuant to the Migration Act (1958) and denied the applicant procedural fairness.
The applicant provided three particulars of those grounds. The first particular says:
The Tribunal did not find the applicant to be a credible witness because the applicant did not impress the Tribunal. This indicates that the Tribunal used its personal judgment in reviewing the refusal application.
This ground does not apply. The Tribunal did not find the applicant to be a credible witness, or a witness without credibility, because the applicant did not appear before the Tribunal to give any evidence. It is unnecessary to consider that ground any further.
The applicant also claimed that the Tribunal did not accept the applicant's explanation that she "lodged application to RRT for review after 28 days." I will consider that ground shortly.
The third ground, or the third particular, says:
The Tribunal did not give the consideration on the relevant country information about China that the Falun Gong are being persecuted in China.
The Tribunal claimed it had no jurisdiction to review the application, and accordingly, if it had no jurisdiction, it had no basis to consider the substance of the applicant's claims.
This case turns on whether or not the Tribunal was correct in finding that it did not have jurisdiction. The solicitors for the Minister have submitted a written outline of submissions and an affidavit of Solone Kantaria, sworn 22^nd April 2008. The substance of that affidavit is contained in paragraph 2:
I am informed by Ms Liesel Brown, legal officer of the Department of Immigration of Citizenship, and verily believe that the applicant's postal - residential address between 5 September 2007 and 17 October 2007 was 47 Ninth Avenue, Campsie, NSW, 2194.
The relevant law has been clearly and comprehensively set out in the first respondent's outline of submissions, and I propose to adopt what is said in paragraphs 4 to 7 of that document.
The Tribunal's jurisdiction arises if a valid application for review of an RRT-reviewable decision is made pursuant to s.412 of the Migration Act (1958). Section 411 of the Act provides that the decision to refuse to grant a protection visa is an RRT-reviewable decision.[5] Section 412(1)(b) requires an application for review to be given to the Tribunal within the prescribed period. An applicant who is not in immigration detention when notified of the delegate's decision must lodge his or her application for review at the Registry of the Tribunal within a period not later than 28 days after the day on which notice of the delegate's decision is received.[6]
[5] See s.411(1)(c) of the Act
[6] See s.412(1)(b) of the Act and reg.4.31(2)(b) of the Migration Regulations (1994)
Sub-section 66(1) of the Act provides that when the Minister's delegate grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. Regulation 2.16 provides that for the purpose of sub-s.66(1) 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 Migration Act. One of those methods consists of the Minister dispatching the document within three working days of the date of the document by prepaid post or other prepaid means to the last address for service or last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.[7] If a document is given to a person by this method and the document is dispatched from a place in Australia to an address in Australia, the person is taken to have received the document seven working days after the date of the document.[8]
[7] See s.494B(4)
[8] see s.494C(4)(a) of the Act
In this case the Tribunal found that the notice of the delegate's decision was sent by prepaid post on 17^th October 2007 from a place in Australia to the applicant's last residential address provided for the purpose of receiving documents. It found that the decision notice was dispatched within three working days of the date of the letter to the applicant's correct address. I note that the letter to the applicant dated 17^th October 2007, a copy of which appears at pages 46 and 47 of the Court Book, shows that it was sent by registered mail and a copy of the registered mail sticker is attached to the letter. The letter is addressed to the applicant at the address that she gave on her application for a protection visa, which is also the residential address that she gave on her application to the Refugee Review Tribunal for review of the delegate's decision. It is also the address that the applicant has given for the purpose of these proceedings. Accordingly, the applicant is taken to have received the notice on 26^th October 2007, which is seven working days after the date of the notice.
The Tribunal did consider the applicant's submissions but rejected them. I am satisfied that the Tribunal did not fall into error when it determined that the applicant's submission had no legal basis.

The notification letter was sent to the applicant's residential or business address provided to the Minister for the purpose of receiving documents within three working days of the date of the document.

By virtue of s.494C(4)(a) of the Act, the applicant was deemed to have received the letter on 26^th October 2007. Accordingly, the prescribed period to lodge an application for review as set out in s.412(1)(b) of the Act came to an end on 23^rd November 2007.
The applicant's application for review was not received until

30^th November 2007
, a week outside the prescribed time period. It is well established that the Tribunal has no jurisdiction to enlarge the time within which an application for review can be made. I am referred to the decision of Fernando v Minister for Immigration & Multicultural & Indigenous Affairs.[9]
[9] [2007] 97 FCR 407 at [31] and [44]
The time limit set out in s.412 of the Act is a mandatory time limit. The application for review was received outside that time and accordingly the Tribunal had no jurisdiction to consider the application. The Tribunal has not fallen into jurisdictional error. As the Tribunal did not fall into jurisdictional error, the decision is a privative clause decision as defined by s.474(2) of the Migration Act. Accordingly, the application will be dismissed.
There is an application for costs in the sum of $2,500.00. This is a proper matter for a costs order and the amount of $2,500.00 is an appropriate figure.

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

Associate: S. Polley

Date: 7 May 2008