SZMHF v Minister for Immigration

[2008] FMCA 1388

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMHF v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1388

MIGRATION – Application to review decision of the Refugee Review Tribunal that it had no jurisdiction – whether application for review out of time.

Migration Act 1958 (Cth), ss.66, 411, 412, 414A, 494B, 494C

Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629
Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407
VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570

Applicant: SZMHF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1283 of 2008

Judgment of: Barnes FM

Hearing date: 25 September 2008

Delivered at: Sydney

Delivered on: 25 September 2008

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr Y Shariff

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application be dismissed.

2. That the applicant pay the costs of the first respondent fixed in the sum of $3,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1283 of 2008

SZMHF

Applicant

And

MINISTER FOR IMMIGRATION & CIIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 21 April 2008 that the Tribunal did not have jurisdiction to review a decision of a delegate of the first respondent which had refused to grant the applicant a protection visa.

2. The applicant, a citizen of the People's Republic of China, arrived in Australia in November 2007 and applied for a protection visa.  Relevantly, in that application he appointed a named person to be his migration agent authorised to act on his behalf and receive written communication in relation to all matters relating to his application.  Included in the form were the full name and contact details for the migration agent.

3. The applicant claimed to fear persecution in China on the basis that he was a Falun Gong practitioner.  However on 1 February 2008 a delegate of the first respondent refused to grant the applicant a protection visa.  The delegate wrote to the applicant notifying him of the decision by letter dated 1 February 2008, a copy of which in the Court Book bears a particular registered post number.  The letter was addressed to the applicant's migration agent in accordance with the details provided in the protection visa application.

4. On 13 March 2008 the Tribunal received an application from the applicant for review of the delegate's decision.  The Tribunal wrote to the applicant care of his migration agent as his authorised recipient, acknowledging receipt of the application on 14 March 2008.  By letter sent by facsimile to the authorised recipient dated 20 March 2008 the Tribunal advised the applicant that the application for review had been received on 13 March 2008.  It indicated that it appeared that it was outside the time limit of 28 calendar days from notification of the Department's decision.  It set out the dates on which it appeared that this was the case and invited the applicant to comment and provide further information in relation to this issue if he disagreed and thought that the Tribunal had power to consider his application.  The Tribunal sought such comments by 3 April 2008.

5. It appears that the Tribunal did not receive a response to this letter. In its decision the Tribunal found that the date of the delegate’s decision was 1 February 2008 and that the delegate had notified the applicant of the decision and his review rights by letter dated 1 February 2008, posted on 4 February 2008. The Tribunal recorded that the application to it had been received on 13 March 2008 and that whether it had jurisdiction depended on whether the application was a valid application under s.412 of the Migration Act 1958 (Cth) which, by s.412(1)(b) and r.4.31(2)(b) required the application for review to be lodged within a period no later than 28 days after the date on which notice is received. The Tribunal referred to the fact that it invited comment from the applicant on this issue and did not receive a response.

6. The Tribunal set out the provisions under the Migration Act and Regulations in relation to notification obligations (see s.66) and the time limits for review applications. It noted that there was no provision in the Act for an extension of time. It had regard to the fact that if the notification of the delegate's decision had been sent in accordance with s.494B of the Act, by dispatch within three working days from the date of the document, it would be deemed to have been received seven working days after the date of the document under s.494C(4)(a), so that the prescribed period within which a review application must be lodged with the Tribunal commenced seven working days after the date of the notice. The Tribunal also referred to the need to give the authorised recipient instead of the applicant any documents that the Minister would have otherwise given to the applicant if the applicant had nominated an authorised recipient (s.494D).

7. The Tribunal found that the applicant was seeking review of an RRT reviewable decision and that the applicable prescribed period was 28 days commencing on the date which the applicant was notified of the decision. It was satisfied that the contents of the delegate's decision notice complied with the requirements of s.66(2) of the Act (in relation to information about why the visa was refused and how to apply for review). The Tribunal recorded that as the decision notice had been sent by prepaid registered post, it had made inquiries with the Department and had received confirmation that the decision was sent by registered post to the applicant's representative's address on 4 February 2008, which it found was within three working days of the date of the document. It found that the applicant had given the Minister written notice under s.494D of the Act of an authorised recipient and that the document was properly sent to that authorised recipient. Therefore it found that the applicant was taken to have received the notice on 12 February 2008, being seven working days after the date of the notice.

8. Hence the prescribed period of 28 days within which a review application could be lodged was found to end on 11 March 2008.  The application for review was not received by the Tribunal until 13 March 2008.  The Tribunal found that this was after the prescribed period for an application for review, and that as it was received outside the mandatory time limit it was not a valid application and the Tribunal had no jurisdiction in the matter.

9. The applicant sought review by application filed in this Court on 19 May 2008.  The only ground in the application is that the Tribunal failed to carry out its statutory duty.  The particulars allege that “due to serious illness [the applicant] was unable to contact RRT and my authorised migration agent for some certain period of time.  Thus I missed the deadline to lodge a review application”.  The applicant claimed that this was a factor beyond his control and was a strong, compelling and compassionate factor the Tribunal should take into consideration.  The applicant did not file written submissions and had nothing to add in the hearing today.

10. As submitted for the first respondent, no jurisdictional error is apparent in the Tribunal decision or procedures. The Tribunal correctly recognised that the applicant was seeking a review of an RRT reviewable decision within s.411(1)(c) of the Act, that it only had jurisdiction in relation to a reviewable decision if there was a valid application and that s.412(1)(b) of the Act provides that an application for review must be lodged with the Tribunal within the prescribed period. The Tribunal considered the prescribed periods specified in the Regulations, in particular Regulation 4.31, and correctly found that as the applicant was not in immigration detention at the relevant time his application for review had to be lodged at a Registry of the Tribunal within a period not later than 28 days after the day on which notice of the decision of the delegate was received by him.

11. The Tribunal also properly considered, and there is no error apparent in its consideration, the fact that the delegate's decision notice complied with the requirements of s.66(2) of the Act. Under s.66 the Minister must notify an applicant of a decision refusing to grant a visa in a prescribed way containing certain information. As to the prescribed way, Regulation 2.16 requires notification to be by one of the methods specified in s.494B of the Act. If the Minister gives a person a document by such a specified method, the person is taken to have received the document at the time specified in s.494C of the Act in relation to such method.

12. One of the methods provided for is the method that was adopted by the delegate of the Minister, that is dispatching the document by prepaid post or other prepaid means within three working days of the date of the document, (see s.494B(4)). Working days exclude Saturdays, Sundays and public holidays. Section 494C(4)(a) provides that in such circumstances, the person is taken to have received the document seven working days after the date of the document.

13. There is evidence before the Court in the form of an affidavit of Jaimee Dinihan filed on 17 September 2008 annexing the outgoing registered post reports of the Department in relation to the notification of the delegate's decision.  The report relates to a document bearing the same registered post number as the copy of the notification letter in the Court Book.  On that basis, I am satisfied that as the Tribunal found, the notification of the delegate’s decision was dispatched by post on 4 February 2008.  No error is apparent in the Tribunal's findings in that respect.

14. On that basis, the delegate's decision was taken to have been received by the applicant seven working days after the date of the document.  No error is apparent in the Tribunal's finding that the applicant was taken to have received that notice on 12 February 2008, or in its finding that because the application for review was not lodged until 13 March 2008 it was outside the prescribed period which expired on 11 March 2008.

15. Hence the Tribunal correctly found that it had no jurisdiction to deal with the matter and no power to override the mandatory time limits prescribed in s.412(1)(b) of the Act (see Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407, VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570 at [32] – [33] and also see Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629 at [24]).

16. No jurisdictional error has been established or is apparent in the Tribunal's decision or finding that it had no jurisdiction.

17. Insofar as the applicant sought to rely on his claim that he was ill, the Tribunal, as I have indicated, has no power to override the mandatory time limit or to take into account the claim that he now makes about illness as a compassionate factor.  I also note in that respect that there is no evidence contrary to the Tribunal's statement that it did not receive a response to the notification that it sent to the applicant by way of according him procedural fairness, advising him of its concern that it had no jurisdiction.  Nor is there any indication that he raised any matters with the Tribunal.

18. As no jurisdictional error has been established the application must be dismissed.

RECORDED  :  NOT TRANSCRIBED

1. The applicant has been unsuccessful and there is nothing in the material before the Court to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent.  The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  8 October 2008