SZMDD v Minister for Immigration
[2008] FMCA 1082
•22 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMDD v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1082 |
| MIGRATION – RRT decision – application to Tribunal made outside mandatory time limit – Tribunal denied jurisdiction – no prospects of success for judicial review – application dismissed at show‑cause hearing. |
| Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth), ss.66, 411(1)(c), 412(1)(b) Migration Regulations 1994 (Cth), reg.4.31(2)(b) |
| Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629 Fernando v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 407 Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550 SZBMF v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 485 VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570 |
| Applicant: | SZMDD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 887 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 22 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms N Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 887 of 2008
| SZMDD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant came to Australia in February 2006. He did not apply for protection against return to China until 8 March 2007. A statement attached to his application said that his business in China had been subject to extortionate demands by officials, and when he came to Australia on a tour he decided to stay. While here, he became interested in Falun Gong. He started practising in his room, and in 2007 he started to participate in some Falun Gong rallies. He claimed to fear persecution in China because of this conduct in Australia.
A delegate refused the visa application on 24 March 2007, indicating a lack of satisfaction as to the credibility of the claims. The delegate’s letter was posted by registered post on 26 March 2007, in a letter addressed to the applicant at the address in Croydon which he had given in his visa application form as both his current residential address and his current postal address.
An application for review of this decision was not received by the Tribunal until 21 November 2007. An attached letter admitted that it was not lodged within the required 28 days, and said: “it is my mistake that I forgot to inform Immigration Department of changing address”.
The Tribunal invited submissions from the applicant on the question of its jurisdiction. The applicant’s response appears to refer to a later letter from the Department, containing a copy of the previously posted decision, which had not been found when he checked his mailbox. However, this is unclear.
In a decision of the Tribunal dated 21 February 2008, the Tribunal held that it did not have jurisdiction, by reason of the mandatory time limit under s.411(1)(c) and s.412(1)(b) of the Migration Act 1958 (Cth) and reg.4.31(2)(b) of the Migration Regulations 1994 (Cth). The Tribunal was satisfied on the evidence that the delegate’s decision complied with requirements under s.66, and was deemed to have been received on 4 April 2007, by reason of its posting in accordance with regulatory requirements which it identified. The Tribunal found, therefore, that the prescribed period had elapsed and the application was out of time.
The applicant’s application to the Court seeks orders to compel the Tribunal to exercise its jurisdiction. The application suggests that it should be sufficient for the Tribunal and Court to accept that the applicant did not, in fact, receive actual service of the Department’s letter prior to 28 days before filing his application to the Tribunal. The applicant has suggested in unsworn evidence today that he may have misunderstood a “card” left by the post office in relation to a notification. It was unclear to me whether he was referring to the original notification, or a copy later posted to the applicant at his new address but not received by him.
In any event, in my opinion it is unnecessary to investigate the facts concerning the claimed non‑receipt of the delegate’s decision by the applicant, before concluding that the Tribunal’s decision was clearly correct in relation to its jurisdiction. It is very well‑established that the 28‑day time limit is mandatory in relation to the Tribunal’s jurisdiction (see Fernando v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 407; VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570 at [33], and Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629 at [24]).
It is also very well‑established that the provisions of the Migration Act and Regulations deeming notification of a delegate’s decision have a conclusive effect in relation to the deemed notification date, even if an applicant has not actually received the notice, and even if the notification was returned to sender (see Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550, and SZBMF v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 485).
Faced by these authorities, in my opinion, the present application has no prospects of success, and it is appropriate to dismiss it today under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
It does not raise an arguable case for the relief claimed. The applicant has been put on notice that this might happen, and has had the opportunity to take advice and file further relevant evidence before today.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 1 August 2008
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