SZMHV v Minister for Immigration - [2008] FMCA 1048

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMHV v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1048

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the applicant lodged his application for review outside the mandatory time limits – whether the Refugee Review Tribunal had jurisdiction to consider the applicant’s review application.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.66(1); 66(2); 411(1)(c); 412(1)(b); 474; 494B; 494B(4); 494C(4)(a); pt.8 div.2
Migration Regulations 1994, reg.2.16

Applicant:

SZMHV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1327 of 2008

Judgment of:

Emmett FM

Hearing date:

25 July 2008

Date of last submission:

25 July 2008

Delivered at:

Sydney

Delivered on:

25 July 2008

REPRESENTATION

Applicant appearing on his own behalf

Solicitors for the Respondent:

Ms N. Johnson, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1327 of 2008

SZMHV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 21 February 2008 (“the Tribunal”).
The applicant claims to be from the People’s Republic of China and a Falun Gong practitioner (“the Applicant”).
The Applicant arrived in Australia on 26 September 2007, having departed legally from Hong Kong on a passport issued in his own name and a visitor visa issued on 27 July 2007.
On 23 October 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
On 16 November 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 8 January 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 21 February 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 23 May 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The issue for determination before this Court is whether or not the Tribunal was correct in finding that it had no jurisdiction to consider the Applicant’s review application on the basis that the review application was filed outside the mandatory time limits.
The grounds of the application to this Court are as follows:
“1. The Tribunal failed to consider that the contents of the delegate’s decision notice complied with the requirements of s66(2).
2. The Tribunal failed to investigate the Applicant weather (sic) or not was properly notified of the delegate’s decision.
3. The Tribunal failed to consider the DIAC renotify the decision.”
The Applicant was unrepresented before this Court, although had the assistance of a Cantonese interpreter. The Applicant participated in the RRT Legal Panel Advice scheme and was posted written advice on

8 July 2008
.
The grounds of the Applicant’s application were read to him and he was invited to make submissions in support of the grounds and in support of his application generally. The Applicant responded that he had given his friend’s address to the Department and his friend had not passed on the letter. The Applicant confirmed that he had not filed any evidence or submissions in support of his application despite having been directed to do so.
The Court endeavoured to explain to the Applicant that the Migration Act had certain deeming provisions in relation to the notification to him of the Delegate’s decision. The Court explained that it could not be a legal mistake on the part of the Tribunal if the Department had notified the Applicant at the only address provided by him for receiving mail and had otherwise made its decision and notified the Applicant of its decision in accordance with the statutory regime. The Court explained to the Applicant that if the Tribunal’s decision was not affected by a legal mistake going to its jurisdiction, then the Court did not have power to interfere with the Tribunal’s decision.
A fair reading of the decision record makes clear that the Tribunal gave careful consideration to the legislative regime of notification to an applicant of a decision of a delegate of the First Respondent and the legislative regime for the lodging of an application for review of a delegate’s decision by the Refugee Review Tribunal.
The Tribunal identified the relevant provisions of the Act and the relevant regulations.
In particular, s.66(1) of the Act provides that a decision of a delegate of the First Respondent is to notify the applicant in the prescribed way. Regulation 2.16 of the Migration Regulations 1994 provides that notification to an applicant of a decision to refuse to grant a visa must be made in accordance with s.494B of the Act.
The Tribunal noted that s.494B of the Act enabled the Department, relevantly, to send the notification letter within 3 working days of the date of the letter by prepaid post to the last address for service or the last residential provided to the First Respondent by the applicant.

The Tribunal noted that a letter sent in accordance with this regime is taken to have been received 7 working days after the date of the document (s.494C(4)(a)).
The Tribunal also had regard to the regime for notification in the circumstances of the nomination of an authorised recipient.

The Tribunal correctly noted that the Applicant had not nominated an authorised recipient.
The Tribunal found that the Delegate’s decision, dated 16 November 2007, was sent by prepaid post on 16 November 2007 from a place in Australia to the Applicant’s last residential address provided to the First Respondent by the Applicant for the purpose of receiving documents. In reaching that finding, the Tribunal had regard to records of the Department that showed that mail item RP36344287, being the decision notification letter dated 16 November 2007, was sent by registered post on 16 November 2007 to the Applicant’s last residential address. In the circumstances, the Tribunal found that the decision notification letter was dispatched within 3 working days of the date of the letter and was therefore sent in accordance with s.494B(4) of the Act. Accordingly, the Tribunal found that the Applicant was taken to have received the decision notification letter on 27 November 2007, being 7 working days after the date of the letter. The Tribunal correctly noted that it mattered not that the decision notification letter was returned to the Department unclaimed.
I note that the Green Book, marked Exhibit 1R, contains a copy of the decision notification letter dated 16 November 2007 and a copy of the envelope addressed to the Applicant at his last residential address. The envelope has the registered post mark RP36344287 (Ex 1R 38). Exhibit 1R also contains a copy of the Department’s outgoing registered post report. That report discloses that on 16 November 2007 mail item RP36344287 was sent to the Applicant at his last residential address (Ex 1R 57).
In the circumstances, the Tribunal’s findings were open to it on the material before it and for the reasons it gave.
The Tribunal also noted that the contents of the Delegate’s decision complied with the requirements of s.66(2) of the Act.
In the circumstances, the Tribunal found that the Delegate’s decision was a Refugee Review Tribunal reviewable decision pursuant to s.411(1)(c) of the Act. The Tribunal noted that s.412(1)(b) provides, relevantly, that an application for the review of a Refugee Review Tribunal reviewable decision must be given to the Refugee Review Tribunal not later than 28 days after the notification of the decision. The Tribunal found that the last date on which the Applicant could lodge review application was 27 December 2007.
The Applicant lodged his application for review with the Tribunal on

8 January 2008
. In the circumstances, the application was lodged more than 28 days after which the Applicant was deemed to have received notification of the decision
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.

I certify that the preceding twenty seven paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 25 July 2008