SZMEM v Minister for Immigration & Anor
[2008] FMCA 1286
•19 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMEM v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1286 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – review application made out of time – Tribunal finding it had no jurisdiction – applicant claiming fraud by his agent caused delay in making application to the Tribunal – change of address by applicant – whether applicant notified change of address to the agent and whether agent notified change of address to the Department considered. LAW REFORM – Observations of the desirability of protection visa applications being made through migration agents who are legal practitioners. |
| Migration Act 1958 (Cth), ss.66, 412, 494B, 494C Migration Regulations 1994 (Cth) |
| Bin Xie v Minister for Immigration [2005] FCAFC 172 Murphy v Minister for Immigration (2004) 135 FCR 550 SZAJS v Minister for Immigration [2004] FMCA 68 VEAN of 2002 v Minister for Immigration (2003) 133 FCR 570 |
| Applicant: | SZMEM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1018 of 2008 |
| Judgment of: | Driver FM |
| Hearing dates: | 11 September, 11 November 2008 |
| Date of Last Submission: | 19 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2008 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr J A C Potts |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1018 of 2008
| SZMEM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 7 April 2008 and notified to the applicant by letter dated the following day. The Tribunal found that it did not have jurisdiction in the matter because the review application to the Tribunal was received out of time. The following background facts are derived from written submissions filed on behalf of the Minister on 22 July 2008.
The applicant is a citizen of the People’s Republic of China (“China”). The applicant arrived in Australia on 12 February 2007 on a subclass 676 Tourist visa and a passport in his own name.[1] He lodged an application for a Protection (Class XA) visa on 27 March 2007,[2] in which he claimed to fear persecution in China on the basis of his membership of an underground Christian church. He claimed to have been detained, questioned and beaten by police, and forced to give up his church activities.[3]
[1] court book (CB) at 34
[2] CB at 1-26
[3] CB at 19-22
On 13 April 2007 a delegate of the Minister refused the visa application.[4] Under cover of a letter dated 13 April 2007[5] the delegate's decision was sent to the applicant by registered post on 16 April 2007.[6] The letter was addressed to the applicant at the address he provided in his protection visa application, as both his current residential and postal address.[7]
[4] CB at 34-41
[5] CB at 32-33
[6] B at 49-52
[7] CB at 14
On 21 January 2008 the applicant purportedly lodged an application for review of the delegate's decision by the Tribunal.[8] On 4 February 2008 the Tribunal sent the applicant a letter informing him that the application was late and that therefore the Tribunal had no power to consider it. The letter invited the applicant to comment and provide further information on this issue.[9]
[8] CB at 42-45
[9] CB at 53-54
On 26 February 2008 the Tribunal received what purported to be the applicant's response, which stated that the applicant worked in Melbourne in 2007, but wrote to the Department of Immigration and Citizenship ("the Department") to change his address before he left. He did not receive any letters from the Department, so he checked with the Department when he returned to Sydney. An officer said that a letter was sent to his old address. He did not receive it when he went to get the letter from that address. Therefore he lodged his application late.[10]
[10] CB at 55
Tribunal decision
The Tribunal found that the application for review was received outside the prescribed time limit, and therefore it was not a valid application and the Tribunal did not have jurisdiction to determine the application. Its reasons were as follows:
a)The prescribed period for seeking review was 28 days, commencing on the day of notification of the delegate's decision: s.412(1)(b) of the Migration Act 1958 (Cth) ("the Act"), reg 4.31(2)(b) of the Migration Regulations 1994 ("the Regulations").
b)The Department's postal records indicated that the decision notice, dated 13 April 2007, was sent by prepaid post on 16 April 2007.[11] According to electronic departmental records, the notice was addressed to the last residential address provided by the applicant to the Department for the purposes of receiving documents.[12] Accordingly, the Tribunal found that the notice was dispatched to the correct address within 3 working days of the date of the letter, in accordance with ss.66(1) and 494B(4) of the Act.
c)Therefore the Tribunal found that the applicant was taken to have received the notice on 24 April 2007, being 7 working days after the date of the notice: s.494C(4)(a).
d)The Tribunal had regard to the applicant's submissions claiming that he notified the Department of a change of address in 2007 when he moved to Melbourne. The Tribunal found that the Department's electronic records did not record that it had received notice of a change of address, and the Tribunal did not accept that these submissions provided any legal basis for accepting the review application outside the prescribed period.
e)The Tribunal found that the applicant was properly notified of the delegate's decision, and was taken to have been notified on 24 April 2007. Therefore the 28 day prescribed period for lodgement ended on 22 May 2007. The application for review was not received until 21 January 2008, after the prescribed period had expired.
[11] See CB at 49-52
[12] CB at 56-58
The application and evidence
The applicant relies upon a show cause application filed on 22 April 2008. The applicant asserts a denial of procedural fairness by the Tribunal and asserts that he did not receive the letter from the Minister’s Department notifying the delegate’s decision. That application is supported by a short affidavit filed on 22 April 2008 in which the applicant summarises his protection visa claims. I received that affidavit as a submission. I received as evidence a further affidavit by the applicant filed on 25 August 2008 to which is annexed a statement detailing the applicant’s alleged problems with a migration agent he had formerly engaged to assist him. In essence, the applicant asserts that it was the agent’s (Ms Lucy Lu’s) fault that he was late in applying to the Tribunal because he had told Ms Lu of a change of address and it was her responsibility to notify the Department of that. The affidavit was bad in form in that the jurat for a non-English speaking person had not been completed. However, I received oral evidence from the applicant in order to satisfy myself that the statement in the English language accurately stated what he wanted to say. In fact, in the course of giving that oral evidence, he made a number of amendments to it, which I marked by hand on the document. I also received as evidence the book of relevant documents filed on 21 May 2008 and an affidavit by Denise Attard filed on 10 September 2008, enclosing what purports to be a complete copy of the Department’s file in this matter.
The applicant was cross-examined on his affidavit. He was not an impressive witness. He changed his evidence several times in respect of questions about what he gave Ms Lu to enable her to prepare a protection visa application for him, whether he claimed to have come to Australia with the intention of claiming asylum and the circumstances in which he came to meet Ms Lu and engage her services. It appears, however, that the applicant met Ms Lu shortly after his arrival in Australia, she having been recommended by an acquaintance (Mr Li) and, at a meeting which took about half an hour, he gave her $700 in cash. Exhibit A2 purports to be a record of that payment. The applicant conceded that his signature appears on the protection visa application at pages 11 and 25 of the book of relevant documents and that the $700 payment was for the completion of that application and the supporting statement. The applicant expected to pay an additional $800 later but apparently did not do so.
The applicant stated that he changed his address in July 2007. He claims that he told Ms Lu of that change. He could recall receiving two letters from the Minister’s Department which he took to Ms Lu unopened. He claimed that they were in yellow envelopes and that he recognised them as Departmental correspondence from that. He claims that Ms Lu told him what the letters were about. He stated that one letter concerned health checks and that another letter related to a tax file number. I received as an exhibit[13] a bundle of documents and an accompanying envelope which the applicant had in his possession and which he stated had enclosed one of the letters he received. It was not the notification letter. The applicant stated that Ms Lu warned him to expect to receive an important letter about an interview (or possibly a review hearing).
[13] exhibit R1
The applicant asserted that he received two letters at his new address. He conceded that one of those letters was probably the acknowledgement letter from the Tribunal dated 22 January 2008[14]. He stated that from then on he took the letters he received to a new agent because he had changed agents in late 2007 or early 2008. He was unsure whether he provided any letter received at his new address to Ms Lu.
[14] CB 47-48
In response to questions from me the applicant stated that he might have received four letters in total and that two of them might have been sent by registered post.
The Minister subpoenaed the alleged agent, Ms Lucy Lu, to attend and provide documents and give oral evidence. She complied with the subpoena. Exhibit 1 is her business card which states in Chinese that she provides migration as well as other services. She answered the subpoena to produce documents by stating that there were no documents to produce. She said she had no file concerning the applicant and that odd pieces of paper relating to his case had been disposed of. In oral evidence, she stated that she is not and never has been a registered migration agent, although she is an education agent. At the time she assisted the applicant, she worked in collaboration with a registered migration agent (David Meng[15]) and that they would pass clients between themselves. Ms Lu engaged students as casual employees in order to complete paperwork. Ms Lu mistakenly thought that the applicant was Mr Li but later acknowledged that error. She acknowledged that the applicant paid her between $500 and $700 for her services but asserted that she only provided translation services and other assistance (such as reading letters) as a “friend”. She acknowledged that the protection visa application had been completed by one of her students in her office and that the applicant had signed it. She stated that the application had been filled out by the student on the basis of information provided by the applicant. She denied holding herself out as a migration agent. She acknowledged that after the application had been witnessed before a JP, the student who worked for her had sent the application in the mail to the Minister’s Department.
[15] migration agent registration number 9685123
Ms Lu confirmed discussing with the applicant his work rights and health checks. She recalled that that discussion arose in the context of reading correspondence from the Minister’s Department for him. She could not remember whether exhibit R1 was one of the letters she had dealt with. She asserted that the letters the applicant had brought to her had already been opened and that the applicant had apparently discussed the contents with others prior to talking to her. Although Ms Lu could remember seeing the letter at RD 30 to 31 and the letter on pages 28 to 29 of the annexures to Ms Attard’s affidavit, she could not recall whether she had seen the notification letter reproduced at RD 32 and 33. Neither could she recall whether she had seen the delegate’s decision record at RD 34 to 41. She could not recall seeing any letter concerning a tax file number but she could recall discussing with the applicant the issue of him getting a tax file number to enable him to work.
Ms Lu stated that the applicant had requested her assistance in preparing the review application at RD 42 to 45. She could not say whether the applicant had signed it. She said that Mr Meng had explained what was needed for the review. He had provided the form.
Ms Lu was evasive and contradictory in her evidence on the question of whether the applicant was aware of the decision of the delegate. At first she said he was and then she said that he had told her he was worried because he had not received any letter. She stated that the applicant told her several times that he had changed his address. Ms Lu was also evasive about the handwritten letter reproduced at RD 55. She ultimately acknowledged that this letter had been prepared by a student working for her at the applicant’s request. She claims she did not know whose signature appeared on the letter.
In response to questions from me, Ms Lu confirmed that the applicant had advised her of his changes of address and that she had written the details down. She thought that this had happened two or three times. She was evasive and equivocal on the question of whether or not she had informed the Minister’s Department of any change of address. At one point she said that she thought she had written a letter advising of a change of address. At another point she said that she did not write any letter to the Minister’s Department.
Under cross-examination by the applicant, Ms Lu asserted that Mr Meng had declined to assist him because he had made demonstrably false claims of persecution. She asserted that it was for this reason that she had restricted her services to translation and the reading of letters. She denied telling the applicant that she was providing migration services. She denied ever advertising the provision of such services. She was evasive when asked to read the Chinese characters on her business card. I ultimately directed the interpreter to read those words. Ms Lu acknowledged that the applicant had introduced two of his friends to her and that she had provided similar assistance to them that she had provided to the applicant.
Submissions
The applicant filed submissions on 19 November 2008. Those submissions assert:
a)The applicant submitted all his written documentation to Ms Lu from the time he applied for a protection visa. The documentation identified how the applicant was persecuted;
b)Ms Lu changed the applicant’s statement without notifying him and then sought to avoid responsibility as a migration agent;
c)The actions of Ms Lu were either morally wrong or unlawful or both;
d)The applicant understands that Ms Lu has been reported to the Minister’s Department but is for some reason protected by that Department; and
e)The applicant is disadvantaged because of his lack of understanding of Australian law and English and he feels cheated by Australians.
The Minister’s submissions deal in detail with the evidence and propose the following conclusions as appropriate to be drawn from the evidence:
Conclusions the Court should draw in relation to the letters
It is submitted that despite a good deal of prevarication, Ms Lu could not really remember whether she had seen the 13/4/07 Letter.[16] It is submitted that the likelihood is that she did not, given that she clearly remembered seeing the First 11/4/07 Letter and the Second 11/4/07 Letter, and given the subject matter of the 13/4/07 Letter, she would have clearly remembered it if she had seen it. Her evidence ultimately seemed to be that she only clearly remembered reading two or three letters.[17]
[16] T 81.6-84.17
[17] T 84.41-84.49
In the first respondent’s submission, even if the Court were to accept that there was a second yellow envelope, the Court should conclude that it was not an envelope containing the 13/4/07 Letter. The applicant was adamant it was about a tax file number and was not from DIAC.[18] The Court can, it is submitted, infer from the yellow envelope in Exhibit “R1” that it is not an envelope of a kind used for registered post. If the second yellow envelope had contained the 13/4/07 Letter, there was no reason why Ms Lu would not have simply told the applicant that his application had been refused. She gained no benefit from concealing that fact.
[18] T 54.1-55.20
The applicant’s own evidence is that he lived at Unit 4, 61 McBurney Road, Cabramatta from April to July 2007.[19]
[19] T 38.43-39.9. See also: T at 97.45
It seems clear that he received both the First 11/4/07 Letter and the Second 11/4/07 Letter in the first yellow envelope. That first yellow envelope was addressed to 4/61D McBurney Road, Cabramatta.[20] There is no reason why the 13/4/07 Letter, sent on 16 April 2007[21] should not have been received by the applicant at that address. Whether it was or not, the applicant could not have notified any change of address before 16 April 2007 because, on his own evidence, he was still living there until July 2007. Whether he actually received the 13/4/07 Letter or not, he was deemed to have received it.[22] He was taken to have received it on 24 April 2007. The 28 days within which he needed to commence proceedings in the Tribunal expired on 22 May 2007.
[20] See Exhibit “R1”, yellow envelope date stamped 11/4/07
[21] CB at 52
[22] See the First Respondent’s Outline of Submissions filed on 22 July 2008
…
Findings and conclusion
In the first respondent’s submission, the Court should find that up to and including 22 May 2007, when the time to apply for review to the Tribunal expired, there was no fraud by Ms Lu, and nothing that vitiated the application for a protection visa. The Court should find that the applicant never took the 13/4/07 Letter to Ms Lu, and that rather, he received it himself and knew that his application had been refused. The fact that his address remained the Cabramatta address until July 2007 means that any change of address issues that may have emerged later are completely irrelevant.
Once 22 May 2007 had come and gone, the applicant was time barred from seeking Tribunal review. Nothing that occurred thereafter could affect that. Nothing that can now occur in these proceedings can affect that.
B. The application to the Tribunal
The applicant consistently denied that he knew that there was a two stage process - an application to a delegate of the Minister, followed by Tribunal review[23] - yet, this denial, is in the first respondent’s submission, not credible, given that the applicant said:
[23]T 51.9-51.17. He claimed that he thought DIAC and the Tribunal were the same at T 53.38-53.39
“[D]uring my daily routine I met so many people like me, nobody - everybody says, “It won’t take that long.””[24]
The Court can comfortably infer from that that the applicant knew other protection visa applicants and had been discussing his application with them. It is unlikely in the extreme that at some point someone did not explain to the applicant that he had a right of review with the Tribunal.
Ms Lu gave evidence that a student in her office prepared the application to the Tribunal.[25] Ms Lu did not know whose signature the form contained.[26] Ms Lu claimed that the applicant asked her to prepare this application for him.[27] According to Ms Lu, the applicant told her that his application for a protection visa had been refused. He told her he had received a letter.[28] In the first respondent’s submission, there was no reason for Ms Lu to have prepared and submitted this application other than at the instigation of the applicant.
Ms Lu confirmed that the facsimile at page 55 of the Court Book was also prepared by one of her employed students. She did not know who signed it.[29] Ms Lu’s recollection was at best very hazy, but she seemed to assert it had been prepared at the applicant’s request.[30] There was, again, no reason for her to do so, other than at the applicant’s request.
The applicant said that the first letter he had received at the Campsie address was the one he had taken to Ms Lu.[31] If that were so, it would be the letter at pages 47-48 of the Court Book. If that is right, it takes the applicant’s case no-where.
Findings and conclusion
Whatever may have occurred in relation to changes of address,[32] they cannot have had any impact on the applicant’s case, as he did not move from Cabramatta until July 2007.
The Court should conclude that the applicant knew that his application for a protection visa had been refused, and that he instructed Ms Lu to prepare the application to the Tribunal. The Court should also conclude that he instructed her to prepare the letter at page 55 of the Court Book.
[24] T 51.1-51.2
[25] T 86.11-86.29. The application is at CB 42-45
[26] T 87.7-87.14
[27] T 87.36-88.47
[28] T 89.1-89.21
[29] T at 89.38-90.17
[30] T at 90.19-91.17
[31] T at 52.17-52.40
[32] T 92.38-95.18
Consideration
This case provides an insight into the murky world of migration agents (both registered and unregistered) and their clients. It is not an edifying spectacle. The picture revealed is one in which potential visa applicants are introduced to persons holding themselves out as providing assistance in relation to the visa assessment process for a fee. Those potential applicants are invited to place their trust in the assistance offered and have little incentive to ask questions. They pay money to become part of a process. The assistance provided is of highly inconsistent quality and is at times characterised by neglect and incompetence. The persons providing such assistance, if unregistered, place themselves at risk of prosecution for an offence,[33] but abuse of the system is both rife and lucrative. The provision of material, without proper reference to the applicants and confirmation by them, by migration agents (whether registered or unregistered) who do not always disclose their involvement brings the entire process into disrepute. As I have said before[34] persons claiming protection under the Refugees Convention are often in fear of their lives and are entitled to have their claims taken seriously and have them properly assessed. However, the abuse of the process of assessment for monetary gain places the integrity of that process in jeopardy. That abuse needs to stop and it needs to stop now. The Minister’s Department should consider whether protection visa applications should be required to be made through a registered migration agent, and whether assistance should be provided to applicants to ensure that all have the opportunity to obtain the services of a registered agent. The Minister’s Department should also consider whether registered migration agents dealing with protection applications should be required to be legal practitioners, who at least could be expected to have a fair understanding of their professional obligations.
[33] Migration Act, s.280
[34] SZAJS v Minister for Immigration [2004] FMCA 68 at [10]-[11]
I make the following findings based upon the evidence. In making those findings I observe that neither the applicant nor Ms Lu were satisfactory witnesses. In some respects, I am disinclined to believe either of them.
The applicant was introduced to Ms Lu by Mr Li in mid February 2007, very shortly after he arrived in Australia. I reject the applicant’s evidence that he met Mr Li by coincidence. It is more likely that the applicant knew of Mr Li before he came to Australia.
At his first meeting with Ms Lu the applicant gave her certain documents although I am unable to say precisely what he gave her. At the time, Ms Lu had a business relationship with Mr David Xian Chuang Meng, a registered migration agent. They exchanged clients between them. That relationship appears to have ceased.
The applicant told Ms Lu that he did not want to return to China and that he wished to claim asylum in Australia. Ms Lu explained to the applicant in some terms the process for seeking a protection visa. I am unable to say what the detail of that explanation was. The applicant paid Ms Lu $700 and expected to have to pay her more at a later stage. No further payment was made. I reject Ms Lu’s evidence that she was only paid for translation. She arranged for the protection visa application and the review application to be prepared. That involved filling out the prescribed forms which was undertaken by a student employed by Ms Lu.
The applicant and Ms Lu met a second time on or about 26 March 2007 when the applicant signed the protection visa application. The application was witnessed by a justice of the peace who Ms Lu sent the applicant to after their meeting. The application form had been supplied by Mr Meng. It had been completed by a student who worked in Ms Lu’s office. There was some discussion about the content of the form before the applicant was invited to sign it. The applicant understood in general terms what was in the application. The applicant signed the application before the JP.
The applicant stated that he received a letter from the Minister’s Department on 11 April 2007. This was verified from an envelope that the applicant had retained[35]. The applicant was, however, unable to identify what had been in the envelope. Ms Lu had read the letter and told him it was from the Minister’s Department. The court book contains two letters dated 11 April 2007 reproduced at CB30-31 and pages 28 and 29 of annexure A to the affidavit of Denise Attard. The applicant was unable to say which letter he had received.
[35] exhibit R1
I reject the applicant’s evidence that he took correspondence he received unopened to Ms Lu to read. Ms Lu’s evidence, which I accept, was that she was asked to read correspondence contained in envelopes which had already been opened and that she understood that the correspondence had already been seen by the applicant or someone else. It is implausible that the applicant would take correspondence by Ms Lu to read without having any idea who the correspondence was from or what it was about. I accept the Minister’s submission that there was no reason for Ms Lu to lie about that issue of detail. She could not in fact recall seeing the envelopes in which the correspondence had been contained.
Ms Lu recognised the letter dated 11 April 2007 from the Minister’s Department, annexed to the affidavit of Denise Attard which dealt with health checks. She also appeared to recognise the other letter of the same date reproduced in the court book. That letter acknowledged receipt of the protection visa application. Ms Lu informed the applicant that the process of assessment of his application had begun and that he should await further news. She told the applicant to expect an important letter about an “interview”. I find that both letters dated 11 April 2007 were received by the applicant.
I am satisfied that the letter reproduced at CB32-33 notifying the applicant of the decision of the delegate was sent by registered post, having regard to the registered post statement and sticker appearing on the face of the letter. The letter was addressed to the applicant at 4/61D McBurney Road, Cabramatta. The applicant conceded having collected a letter from the post office after receiving a card in the mail[36]. He could only recall having done so once[37]. The applicant asserted that that was one or other of the letters dated 11 April 2007 but those letters were not sent registered post. The applicant then gave evidence that perhaps he had received a card twice and collected two letters from the post office. I accept that two letters were sent to the applicant at his Campsie address by registered post[38]. Both of those letters were sent from the Tribunal.
[36] T 55.27-55.30
[37] T 55.32-55.34
[38] CB 53, 59
I see no particular significance in the applicant’s evidence about having seen correspondence referring to or dealing with a tax file number. Whether or not such correspondence was received, it was unrelated to the applicant’s protection visa application or his review application.
It is more likely than not that Ms Lu did not see the notification letter from the Minister’s Department dated 13 April 2007. Despite her equivocation, she had no clear recollection of seeing it, although she did have a clear recollection of seeing less important correspondence. The notification letter is unlikely to have been contained in the yellow envelope forming part of exhibit R1. Further, I accept the Minister’s submission that Ms Lu had nothing to gain by concealing the outcome of the applicant’s protection visa application from the applicant. The applicant’s evidence was that he was living at the address to which the notification letter was sent at the time it was sent[39]. The letter was sent three days after the date that it bore[40]. I reject the applicant’s evidence that he notified a change of address prior to the despatch of the notification letter. There was no reason for the applicant to notify such a change of address until he moved (on his own account in July 2007). It follows, that the applicant was deemed to have received the notification letter whether or not he in fact received it[41].
[39] T 38.43-39.9
[40] CB 52
[41] s.494C
The Tribunal found that the application for review was received outside the prescribed time limit, and therefore it was not a valid application and the Tribunal did not have jurisdiction to determine the application. Its reasons were as follows:
a)The prescribed period for seeking review was 28 days, commencing on the day of notification of the delegate's decision: s.412(1)(b) of the Migration Act, reg 4.31(2)(b) of the Migration Regulations 1994 ("the Regulations").
b)The Department's postal records indicated that the decision notice, dated 13 April 2007, was sent by prepaid post on 16 April 2007.[42] According to electronic departmental records, the notice was addressed to the last residential address provided by the applicant to the Department for the purposes of receiving documents.[43] Accordingly, the Tribunal found that the notice was dispatched to the correct address within 3 working days of the date of the letter, in accordance with ss.66(1) and 494B(4) of the Act.
c)Therefore the Tribunal found that the applicant was taken to have received the notice on 24 April 2007, being 7 working days after the date of the notice: s.494C(4)(a).
d)The Tribunal had regard to the applicant's submissions claiming that he notified the Department of a change of address last year when he moved to Melbourne. The Tribunal found that the Department's electronic records did not record that it had received notice of a change of address, and the Tribunal did not accept that these submissions provided any legal basis for accepting the review application outside the prescribed period.
e)The Tribunal found that the applicant was properly notified of the delegate's decision, and was taken to have been notified on 24 April 2007. Therefore the 28 day prescribed period for lodgement ended on 22 May 2007. The application for review was not received until 21 January 2008, eight months after the prescribed period had expired.
[42] See CB at 49-52
[43] CB at 56-58
I accept the Minister’s submission that the Tribunal made no error. For the purposes of the notification provisions in the Migration Act and Regulations, it is not relevant whether the applicant in fact received notice of the delegate's decision. Pursuant to s.494C(4)(a) of the Act, the applicant is taken to have received the document within seven days after the date of the document, regardless of when or whether he actually received it: Murphy v Minister for Immigration (2004) 135 FCR 550; VEAN of 2002 v Minister for Immigration (2003) 133 FCR 570; Bin Xie v Minister for Immigration [2005] FCAFC 172.
On the basis of the Department's electronic records as at 3 March 2008,[44] the Tribunal was entitled to find that the Department despatched the notice to the last residential address provided to the Minister by the applicant, in accordance with s.494B(4)(c)(ii). There is no record on the Department file of a letter from the applicant notifying of a change of address. Beyond the applicant's assertion in his written submission that he "wrote to Immigration Office to change [his] address",[45] the applicant did not provide the Tribunal with any details or any evidence of having notified the Department of a change of address. The Tribunal considered his submission, and was entitled not to accept it.
[44] CB at 56-58
[45] CB at 55
I accept the Minister’s submissions on the evidence concerning the further contact between the applicant and Ms Lu. The applicant’s evidence concerning later contact with Ms Lu about the granting of a bridging visa is not credible and does not accord with the record. I accept that there was further contact between the applicant and Ms Lu after his protection visa application had been rejected and it is apparent that that contact has led to tension and hostility between them. It is likely, in my view, that the applicant knew his protection visa application had been refused because he received the notification letter. It is plausible that he told Ms Lu about it although, as I have already found, it is unlikely that Ms Lu actually saw the notification letter. It is possible that the applicant asked Ms Lu to deal with the next stage of the assessment process (namely, the review) but there is no doubt that no timely review application was made. I accept that once the date of 22 May 2007 had passed, the time for making a review application had expired and that nothing that occurred after that date could affect the outcome that the Tribunal lacked jurisdiction. I find, on the balance of probabilities, that a student employed by Ms Lu completed the review application lodged with the Tribunal and signed the applicant’s name on it. The same person probably wrote the letter reproduced at CB 55. Those steps were probably taken at the direction of Ms Lu. If those steps were taken with the authority of the applicant there would be no fraud (leaving aside the question of whether the review application was a valid one).
If those steps were taken without the applicant’s authority (as he asserts) then the review application could not be a valid one and the action taken was fraudulent. It is unnecessary to resolve that question because the review application was invalid in any event and whether or not Ms Lu committed a fraud in arranging for the review application and letter to be prepared and submitted, it could not amount to jurisdictional error on the part of the Tribunal because it did not prevent the Tribunal from performing its review function. The Tribunal was prevented from performing its review function because it lacked jurisdiction once the deadline for submitting the review application on 22 May 2007 had passed. There is no evidence that Ms Lu had knowingly prevented the applicant from making a review application within time. She was not the applicant’s authorised recipient and, as I have already found, she probably never saw the notification letter. Ms Lu was probably told by the applicant of the outcome of his visa application because she would not have made the review application, and arranged for the preparation of the letter explaining delay, unprompted. However, by that stage, whatever Ms Lu did was of no assistance or harm as the deadline for a review application had already passed.
I find that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 19 December 2008
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