SZLZI v Minister for Immigration

[2008] FMCA 1095

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLZI v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1095

MIGRATION – Review of RRT decision – where Tribunal concluded application for review was out of time – where notification of delegate’s decision was returned to sender “unclaimed” – whether applicant had been adequately notified of delegate’s decision – no evidence of procedures for delivery of registered mail.

Migration Act 1958 (Cth), s.494B

Minister for Immigration v Singh [2000] FCA 377
Bin Xie v Minister for Immigration [2005] FCA FC 172  

Applicant: SZLZI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 361 of 2008

Judgment of: Raphael FM

Hearing date: 28 July 2008

Date of Last Submission: 28 July 2008

Delivered at: Sydney

Delivered on: 28 July 2008

REPRESENTATION

Counsel for the Applicant: Mr D. Ash

Counsel for the Respondent: Mr P. Reynolds

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the first respondent’s costs assessed in the sum of $3,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 361 of 2008

SZLZI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There is one short point to decide in regard to this application. It relates to service of the decision of the delegate to decline to grant this applicant a protection visa. Upon the evidence, the delegate's decision was made on 9 August 2007 and a copy of it was sent to the applicant by registered mail in a letter dated the same date. It was sent to the applicant at her address in Ashfield and the evidence shows that it was dispatched on 10 August 2007. The letter never reached the applicant and was returned to sender marked “unclaimed” on or about 20 September 2007.

2. The applicant says that she knew nothing about the decision until she made some inquiries of the Department of Immigration and Citizenship (“DIAC”).  On 29 November 2007 DIAC provided her with another copy of the decision and the letter which that with it [CB 65].  On receipt of that document the applicant filed the application to the Refugee Review Tribunal, the review of which is presently before me.  On 30 January 2008 a senior member of the Tribunal determined that the application had been filed too late and he had no jurisdiction to review the delegate's decision.

3. Mr Ash, who appears for the applicant, mounted an intelligent and attractive argument in his client's favour based upon the appearance of the envelope that appears in the Green Book at [CB 51].  That shows that a “return to sender” sticker was placed over the name and address of the person to whom the letter was posted.  Mr Ash argued that as the respondent was unable to prove to whom the letter was posted and

   
   

   Mr Ash's client had not received it, she should be permitted to rely upon the second delivery of the Minister's decision and thus her review was in time.  However, shortly before the case commenced the second respondent was able to provide a better copy of the envelope which clearly shows that the letter was addressed to the applicant at the address that she had given for the purposes of receiving documents and this argument made by Mr Ash could no longer be sustained.

4. Mr Ash then argued that the notification on the return to sender sticker that the letter was unclaimed allowed me to draw an inference that the document never arrived at the address at all.  This is not an inference I am prepared to draw in the absence of any evidence as to the procedures adopted by Australia Post for the delivery of registered mail.  It is idle for me to impose my own understanding of those procedures into this case and I am supported in my view that evidence is required by the decision of the Full Bench of the Federal Court in Minister for Immigration v Singh [2000] FCA 377 (“Singh”).  That case also confirms that the court must look at the dispatch of the document and not its delivery. At [32] the court says:

   “The purpose of the provisions under consideration is to provide a scheme to achieve administrative certainty in the manner and time of giving notice of decisions made with respect to visa applications, and as to the expiry date for any application to review such decisions.  The decision has clearly been taken by the legislators that that objective should override the injustice which may occur because a particular visa applicant, sometimes entirely without fault on that person's part, does not in fact receive that notice in a timely way (as in the case of Mr Singh) or in some cases (such as Dawai, Tabet) at all.  Such persons may lose their right to seek review of a decision refusing a visa before they are aware that the decision has been made.  However, once it is recognised that priority has been given to the fulfilment of that purpose, it is appropriate in the absence of any indication to the contrary to apply the clear words of reg 2.16(1)(c) which are consistent with it.” 

5. The decision in Singh was approved by another Full Bench in Bin Xie v Minister for Immigration [2005] FCA FC 172 where their Honours said at [18]:

   “As was the case in Singh, there was no evidence before the Tribunal (and therefore before the Magistrate or this Court) as to the method of delivery adopted by the post office for registered mail. All that is known with certainty is that the envelope and contents were sent by pre-paid post to the appellant at the appropriate address. Section 494B requires no more.”

   I am reminded by the respondent that s.494B of the Migration Act 1958 (Cth) uses the word “dispatch” in relation to the requirements, which gives further indication that the legislation looks to what occurs at the Minister's end rather than what may or may not arrive at the applicant's.

6. In these circumstances I am bound by the authorities to which I have been addressed and to which I have made reference in these reasons. The application must be dismissed. I order that the applicant pay the respondents costs which I assess in the sum of $3000.00.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  1 August 2008