SZMDD v Minister for Immigration and Citizenship

[2008] FCA 1750

FEDERAL COURT OF AUSTRALIA

SZMDD v Minister for Immigration and Citizenship [2008] FCA 1750

SZMDD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1365 of 2008

SIOPIS J
21 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1365 of 2008

BETWEEN:

SZMDD
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	21 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicant’s application for leave to appeal, and extension of time to appeal, from the decision of the Federal Magistrate dated 22 July 2008 is dismissed.

2.The applicant is to pay the first respondent’s costs in the sum of $2,200.00.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1365 of 2008

BETWEEN:

SZMDD
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	21 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who arrived in Australia in February 2006.  On 8 March 2007, the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the first respondent refused the application for a protection visa on 26 March 2007.  On 21 November 2007, the applicant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision.

2. The applicant claimed in a statement attached to his protection visa that he operated a successful business whilst in China and as a result he was subjected to extortionate demands by officials.  He said that he paid 20% of the company’s profit each year to the officials.  The applicant came to Australia on a tour and decided to stay.  While in Australia he became interested in Falun Gong and he started practising in his room.  In 2007, he participated in a number of Falun Gong rallies.  He claimed to fear persecution in China because of this conduct in Australia.

3. A delegate of the first respondent refused to grant a protection visa to the applicant.  The department under covering letter mailed the delegate’s decision by registered post on 26 March 2007 to the address which had been provided by the applicant in his protection visa application.

   THE TRIBUNAL

4. An application for a review of the delegate’s decision to the Tribunal was not received until 21 November 2007.  This was outside the mandatory 28 day period under s 411(1)(c) and s 412(1)(b) of the Migration Act 1958 (Cth) (the Act) and reg 4.31(2)(b) of the Migration Regulations 1994 (Cth).

5. The application was accompanied by a covering letter from the applicant dated 20 November 2007.  In the letter, the applicant stated that he did not receive the delegate’s decision and only became aware of the decision when he visited the department.  He said that he immediately made an application for a review of the decision.  The letter went on to say:

   I implore you could understand that I didn't accept the decision of Immigration in March 2007 so I couldn't lodge application within 28 days.  It is my mistake that I forgot to inform Immigration Department of changing address.

   I ask you could forgive my mistake and accept my application for review of the decision of Immigration Department.

6. By a letter dated 21 January 2008, the Tribunal sent the applicant a letter stating that the application for review reached the Tribunal too late and the Tribunal had no power to consider late applications.  The letter invited the applicant to write to the Tribunal advising why the applicant thought that the Tribunal had power to consider his application.  The letter continued:

   A Member of the Tribunal will consider any information you send and decide if the Tribunal has power to consider your application.

7. The applicant responded by a letter dated 31 January 2008 and stated that he could not explain why he did not receive the department’s letter.

8. The Tribunal issued its decision on 21 February 2008.  The Tribunal was satisfied on the evidence that the delegate had notified the applicant by sending the department’s letter to the address notified to the department, thereby complying with s 66 of the Act.  The Tribunal found that the applicant was deemed to have been notified of the decision on 4 April 2007 and, therefore, the prescribed period of 28 days within which the application for review of the delegate’s decision could be lodged ended on 2 May 2007.  As the application for review was received outside of this time, the Tribunal held that it did not have jurisdiction to entertain the application.

   THE FEDERAL MAGISTRATES COURT

9. On 11 April 2008, the applicant applied for judicial review of the Tribunal’s decision in the Federal Magistrates Court.  In his application for judicial review the applicant claimed that he did not receive the letter and that it was not his mistake.  The applicant contended that it should be sufficient for the Tribunal 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.

10. The Federal Magistrate noted that is well established that the 28 day time limit is mandatory in relation to the Tribunal’s jurisdiction. The Federal Magistrate stated that it was also well established that the provision relating to the deemed notification date of the delegate’s decision was conclusive, even where the applicant has not received the notice or it was returned unclaimed. The Federal Magistrate found there was, therefore, no error on the part of the Tribunal, and the application for judicial review was dismissed under r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (the FMC Rules).

    THE PRESENT APPLICATION

11. On 1 September 2008, the applicant filed an application for an extension of time to appeal against the decision of the Federal Magistrate. Because the Federal Magistrate dismissed the applicant’s claim under r 44.12(1)(a) of the FMC Rules, it is necessary for the applicant to obtain leave to appeal against the decision of the Federal Magistrate. I will treat this application as being an application for leave to appeal as well as an application for the extension of time.

12. The draft notice of appeal filed by the applicant contained the following proposed grounds of appeal:

    1.The Tribunal did not give the applicant a chance for review.  The applicant did not receive the notification of decision letter from the delegate.

    2.The Federal Magistrate did not consider the application fairly.

    3.The Federal Magistrate did not reasonably consider the applicant’s claim.

13. In determining whether to exercise the discretion to grant leave to appeal, it is necessary to consider whether the decision below is attended with sufficient doubt to justify the granting of leave.

14. In my view, the decision of the Federal Magistrate is not attended with sufficient doubt to justify the granting of leave to appeal.  The Federal Magistrate correctly identified that the time limits in the Act were mandatory and that the deeming provisions of the Act had, in the circumstances of this case, conclusive effect.

15. At the hearing before me the applicant said that he had not had an oral hearing before the Tribunal.  This does not appear to have been raised before the Federal Magistrate.  However, in my view, leave should not be given to raise this contention.  The Tribunal gave the applicant an opportunity to make written submissions in relation to whether it had jurisdiction to undertake a review of the delegate’s decision.  The applicant took advantage of this opportunity and made written submissions.  As the Tribunal concluded that it did not have the jurisdiction to embark upon a review of the delegate’s decision, it was not required to conduct an oral hearing under s 425 of the Act.  There is nothing in the Act which requires that the Tribunal give the applicant an oral hearing in relation to the determination of the question of whether it has jurisdiction to entertain an application for review.  The right to an oral hearing under s 425 only arises in respect of a “valid” application for review.  It is sufficient that the Tribunal accorded the applicant natural justice by seeking submissions from him on the question of whether it had jurisdiction to embark upon a review of the delegate’s decision.

16. The applicant did not provide any particulars in support of the generalised assertions in the second and third proposed grounds of appeal that the Federal Magistrate did not consider his application fairly or reasonably ‑ neither of which on their face disclosed a proper ground of appeal.

17. None of the proposed grounds of appeal have merit.

18. Accordingly, I dismiss the applicant’s application for leave to appeal from the decision of the Federal Magistrate.  It follows that there is no need to consider the application for extension of time.  The applicant is to pay the costs of the first respondent.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        21 November 2008

Counsel for the Applicant:	The Applicant appeared in person.
Counsel for the First Respondent:	Mr P Snell
Solicitor for the First Respondent:	Sparke Helmore

Date of Hearing:	18 November 2008
Date of Judgment:	21 November 2008