SZMEG v Minister for Immigration
[2008] FMCA 962
•3 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMEG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 962 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant – applicant is a citizen of the Peoples Republic of China – well-founded fear of persecution – Falun Gong practitioner jurisdiction – application out of time – not a valid application – no jurisdiction. |
| Migration Act 1958 (Cth), ss.66, 411, 412, 474, 494B, 494C |
| SZIUK v Minister for Immigration and Citizenship [2007] FCA 226 followed SZKOY v Minister for Immigration & Citizenship [2008] FCA 155 followed |
| Applicant: | SZMEG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 993 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 July 2008 |
| Date of Last Submission: | 3 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 3 July 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondents: | Ms Palmer |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant will pay the First Respondent's costs fixed in the sum of $2,700.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 993 of 2008
| SZMEG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of China. He has applied to the Court to review a decision of the Refugee Review Tribunal that was signed on 20th March 2008 and handed down on 25th March 2008. The Tribunal found that it did not have jurisdiction to deal with his application for review.
The Applicant asks the Court for writs of certiorari, mandamus and prohibition to set aside the Tribunal decision, to require the Tribunal to determine his application according to law and to restrain the First Respondent, the Minister for Immigration & Citizenship, from taking any action in reliance upon the decision under review.
The Applicant claims that the Tribunal fell into jurisdictional error in two ways, although there is a certain similarity between the two grounds:
i)That the Tribunal failed to consider the fact that the Department of Immigration & Citizenship had not notified him of the decision with the right method and right time.
ii)The Department of Immigration & Citizenship should have notified the Applicant of the decision on time and with the correct method.
The Minister for Immigration & Citizenship filed a Response on
15th May 2008. That Response claims that the application for judicial review does not establish any jurisdictional error in the Tribunal decision and does not raise any arguable case for the relief claimed pursuant to Part.44.12 of the Federal Magistrates Court Rules.
Background
The background to this matter is that the Applicant applied to the Department of Immigration & Citizenship for a Protection (Class XA) visa on 2nd November 2007. In his application he claimed well-founded fear of persecution as a Falun Gong practitioner and claimed that after a tip-off in May 2007 that he was going to be charged by the police he paid a large amount of money to get a visa to come to Australia and left China and arrived in this country where he seeks protection.
The Department received his application and a delegate of the Minister considered his application for a visa. However, the delegate refused the application and a letter was sent to the Applicant advising him of that fact dated 10th December 2007.
Application for Review by the Refugee Review Tribunal
The Applicant applied to the Refugee Review Tribunal for a review of that decision in an application that was received by the Tribunal on
5th February 2008. He provided no documentation with his application in support of the claim. The Tribunal wrote to him on 5th February 2008 acknowledging receipt of his application and wrote again on
8th February 2008inviting him to comment and provide further information on eligibility issues. The letter said:
“We received your application for review on 5 February 2008. Unfortunately, it appears your application reached us too late. The Tribunal has no power to consider late applications.
Why does my application appear to be late?
Applications to the Tribunal must be made within 28 calendar days of being notified of the Department of Immigration & Citizenship's (the Department's) decision.
The Department's letter is taken to have been received seven (7) working days after the date of the letter, even if it was not received.
Our records show that you were notified of the Department's decision to refuse you a protection visa by letter dated 10 December 2007.
Therefore:
· you were taken to be notified of the decision on 19 December 2007.
· the last day to apply to the Tribunal was 16 January 2008.
· The Tribunal did not receive your application until 5 February 2008.”[1]
[1] See Court Book at page 50.
The letter went on to tell the Applicant that if he disagreed and thought the Tribunal did have power to consider his application he should write to the Tribunal by 4th March 2008. It does not appear that the Tribunal received any letter from the Applicant.
The Tribunal's decision was signed on 20th March 2008 and handed down on 25th March 2008. A copy of the Tribunal decision record can be found at pages 57 to 60 of the Court Book. The decision record sets out the relevant law and sets out the Tribunal's findings and reasons at pages 59 and 60.
The Tribunal’s Findings and Reasons
The Tribunal found that the Applicant was not in immigration detention at the time when he was notified. It found that he was seeking review of an RRT reviewable decision covered by sub-section 411(1)(c) and that the applicable prescribed period is 28 days commencing on the day on which the Applicant was notified of the decision: s.412(1)(b) and r.4.31(2)(b).
The Tribunal was satisfied that the contents of the delegate's decision notice complied with the requirements of sub-section 66(2). The Tribunal noted that the Applicant did not give the Minister written notice under s.494D of the Migration Act of the name and address of an authorised recipient.
The Tribunal noted that the decision notice dated 10th December 2007 was sent by prepaid post on 11th December 2007 to the Applicant at his last residential address provided for the purpose of receiving documents. That letter was returned to the Department unclaimed.
The Tribunal made enquiries with the Department to determine whether the letter was sent within three working days, and received confirmation that the letter was in fact sent by registered post on
11th December 2007within three working days. The Tribunal found that the decision notice was dispatched within three working days of the date of the letter to the correct address in accordance with sub-section 66(1) and sub-section 494B(4) of the Migration Act.
The Tribunal went on to find that the Applicant was taken to have received the notice on 19th December 2007 being seven working days after the date of the notice, and that that was so, even though the notice was returned unclaimed.
The Tribunal found that the Applicant was properly notified of the delegate's decision and was taken to have been notified on 19th December 2007. Therefore, the prescribed period of 28 days within which the application for review could be lodged on 16th January 2008.
However, the application for review was not received by the Tribunal until 5th February 2008; after the prescribed period of time had expired. The Tribunal therefore found it did not have jurisdiction in that matter.
Application for Judicial Review
The Applicant commenced proceedings in this Court for review by means of an application and an affidavit filed on 21st April 2008.
He filed an amended application on 4th June 2008. He did not file any written outline of submissions. He attended Court and made oral submissions at some length. He set out his history in China and why it was that he left China and sought protection in Australia.
It appears that the Applicant obtained assistance from a woman whom he described as a lawyer, but may have been a migration agent. In any event, he told the Court that he paid this person money in two instalments of $700.00 and a further $350.00. He, himself, was, to say the least, vague in his knowledge of the process of application for a visa and review of that decision.
The Applicant confirmed that the address that he gave in his application for protection visa, which is an address in a suburb of Sydney, was his address at the time, although he said that he was quite mobile and moved around a lot, and letters were at times sent on.
He denied having received any letter from the Department of Immigration & Citizenship informing him that his application for a visa had been refused. He said that later on his friends notified him that there was a letter for him, but he was, to say the least, vague about the contents of that letter.
The Applicant told the Court that he did not find out about the fact that his application for a visa had been refused until he was making inquiries as to why his application for a Medicare card had been refused. Apparently the same lawyer was assisting him with that. He said that when he found out that his application for a visa had been refused he sought advice from his lawyer who assisted him with an application for review to the Refugee Review Tribunal.
I have had the benefit of a comprehensive and accurate written outline of submissions filed on behalf of the Minister for Immigration & Citizenship. The lawyer for the Minister, who appeared, Ms Palmer, who drafted the submissions, relied on those submissions and reiterated that the delegate's letter advising the Applicant that the application for protection visa had been refused was indeed sent by registered post to the address that the Applicant gave.
Ms Palmer drew the Court's attention to the fact that the Tribunal had checked the outgoing registered post records and the report in respect of that particular letter sent by the Department, which was registered post number RP38070834, was shown to have been sent on
11th December 2007. A copy of the outgoing registered post report from the Department appears at page 55 of the Court Book.
The Tribunal found that it did not have jurisdiction to review the delegate's decision because the application was received out of time. The prescribed period of time is set out in sub-section 412(1)(b) of the Migration Act which prescribes that the application must be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision.
Clearly, the delegate's decision notice complied with the requirements of sub-section 66(2) of the Act. It is quite clear that no authorised recipient was nominated in the application for protection visa, although the Applicant was adamant in advising the Court that he had had assistance from a lady who was a lawyer, who had indeed charged him money. I have suggested that the Applicant should provide the name and address of this person to the solicitor appearing for the Minister as this may be a matter that will be of interest to the Minister's Department.
The delegate's decision notice was dated 10th December 2007. It was sent by prepaid post on 11th December 2007 from a place in Australia to the Applicant's last residential address. It was returned unclaimed.
I am satisfied that it was dispatched within three working days of the date of the letter to the correct address given by the Minister, and it complied therefore with sub-section 66(1) of the Act and sub-section 494B(4) of the Act.
Accordingly, the Applicant would be taken to have received the decision notice on 19th December 2007 by the operation of sub-section 494C of the Migration Act. This, of course, is seven working days after the date of the letter.
Conclusion
The Applicant had a period of 28 days after 19th December 2007 to lodge his application for review with the Refugee Review Tribunal. The last day, therefore, was 16th January 2008. However, the Tribunal did not receive the application for review until 5th February 2008.
It was clearly out of time. The time limit under s.412 is mandatory. The Tribunal has now power to extend it, nor does the Court. There are a number of decisions which make it quite clear that there is a mandatory time limit provided by s.412, including SZIUK v Minister for Immigration and Citizenship[2], and also SZKOY v Minister for Immigration & Citizenship[3].
[2] [2007] FCA 226 at [12]
[3] [2008] FCA 155 at [11]
The Tribunal had, and has, no power to extend the time. The Applicant claims in his application to this Court that the Department did not notify him properly or in time, but it appears clear that the delegate's letter was addressed to the residential address given by the Applicant in his application for a protection visa. There is no explanation as to why that letter would have been returned unclaimed if the Applicant had been there to receive it.
I note that in the application to the Refugee Review Tribunal the Applicant's residential address was given, but a different mailing address, being 116/226 Elizabeth Street, Surrey Hills, New South Wales, 2010, appears. That, in fact, is an address that the Applicant gives in his Notice of Change of Address for Service, and his amended application. He told the Court that it was the post box of his lawyer.
The Applicant claims that the Tribunal did not take into account the fact that the Department had not sent the letter to him correctly. Even if that was the case, because it is a mandatory time limit, the Tribunal had no power to take that into account; but the fact is that the Tribunal checked to see that the letter had been sent within three working days of the date, and that registered post record can be found at page 55 of the Court book.
It is unfortunate, to say the least, that the Applicant appears to have been referred to what would appear to be an unregistered migration agent, who has charged him amounts of money, but has not, in the long run, given him appropriate advice or assistance. Unfortunately, the Courts see these matters too often and it is a situation that, in my view, the Minister for Immigration & Citizenship should take very seriously and such people who accept money and stay in the background and guide applicants often inexpertly and badly through the migration process, should be dealt with in any circumstances where it appears that they may have broken the law. That, however, is a matter for the Minister and not a matter for the Court.
Quite clearly, there is no jurisdictional error. The Tribunal had no option but to find that it had no jurisdiction because the time limit under s.412 is mandatory. The decision, therefore, is a privative clause decision. It is not subject to writs of certiorari, Mandamus or prohibition. The application will be dismissed.
This is an appropriate matter for an order for costs in favour of the First Respondent Minister. The sum of $2,700.00 is, in my view, a modest amount. The file certainly indicates that the application on the Minister's side has been prepared with a good deal of skill, care and attention and I am satisfied that I should order that the Applicant is to pay the First Respondent's costs fixed in the sum of $2,700.00.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 11 July 2008
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