SZMMU v Minister for Immigration
[2008] FMCA 1293
•12 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMMU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1293 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.66, 411, 412, 494B, 494C Migration Regulations 1994 (Cth) |
| Fernando v Minister for Immigration & Anor [2000] FCA 324 MZXOT v Minister for Immigration & Anor [2008] HCA 28 |
| Applicant: | SZMMU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1762 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 12 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 September 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms N Johnson Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1762 of 2008
| SZMMU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 12 June 2008 and notified to the applicant by letter dated the following day. The Tribunal found that it did not have any jurisdiction in the matter.
Relevant background is set out in the Minister's outline of submissions filed on 1 September 2008. I adopt as background for the purposes of this judgment paragraph 3 through to paragraph 14 of those written submissions:
The applicant, who is a citizen of the People’s Republic of China (PRC), arrived in Australia on 1 February 2008 (court book “CB” 14). On 5 February 2008, the applicant applied for a Protection (Class XA) visa (CB 1-26). The residential and postal address given by the applicant in his protection visa application was: “115 Brighton Ave, CAMPSIE NSW 2194” (CB 13, 25).
In a statement provided to the Department, the applicant claimed that he was a “Falun Dafa person”, and that by reason of his practice of Falun Gong he feared persecution from the PRC authorities (CB 27).
On 11 February 2008, the Delegate invited the applicant to attend an interview on 25 February 2008 (CB 28). The applicant did not attend the scheduled interview (CB 37.1).
On 26 February 2008, a delegate of the Minister refused the applicant’s protection visa application (CB 31-38). Based on the evidence before him, the delegate found that the applicant did not have a well-founded fear of persecution in the foreseeable future should he return to the PRC (CB 38).
On 24 April 2008, the applicant applied to the Tribunal for review of the delegate’s decision (CB 50-53).
On 7 May 2008, the Tribunal wrote to the applicant, via his authorised recipient, noting that his review application appeared to have reached the Tribunal too late for it to be considered (CB 61-63). The Tribunal referred to the fact that the applicant was notified of the delegate’s decision by letter dated 26 February 2008, and that accordingly he was taken to have been notified of the decision on 6 March 2008, which meant that the deadline for applying to the Tribunal for review was 3 April 2008. The letter noted that the application for review was received by the Tribunal on 24 April 2008. The Tribunal gave the applicant until 21 May 2008 to reply to this letter.
The applicant responded to the letter on 21 May 2008 (CB 64-66). The applicant claimed that he had not received the “refusal letter” or the card to collect mail from the post office. He confirmed that his address was 115 Brighton Street Campsie NSW 2194. He told the Tribunal that he went to the Department with a migration agent on 24 April 2008 and became aware of the delegate’s decision and obtained a copy on that day.
On 12 June 2008, the Tribunal made its decision that it had no jurisdiction in respect of the applicant’s review application (CB 68-71).
The Tribunal noted that its jurisdiction arose if a valid application was made under s.412 of the Migration Act 1958 (Cth) (“the Migration Act”) for review of an RRT-reviewable decision (s.411), and that s.412(1)(b) requires an application for review to be given to the Tribunal within the prescribed time period, “being a period ending not later than 28 days after the notification of the decision”. If an applicant who has applied for review of an RRT-Reviewable decision is not in immigration detention when notified, reg 4.31(2)(b) of the Migration Regulations 1994 (“the Regulations”) provides that the application must be lodged not later than 28 days after the day on which notice of the decision is received. The Tribunal noted that there is no provision for extension of time (CB 69.8).
The Tribunal continued (CB 69.9-70.3):
Section 66(1) provides that when the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. Regulation 2.16 provides that for the purposes of s 66(1), the Minister may notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s 494B. Section 494B specifies a number of alternative methods for giving a document to a person.
One of the methods specified in s 494B consists of dispatching the document within 3 working days of the date of the document by prepaid post or other prepaid means to the last address for service or the last residential or business address provided to the Minister by the recipient for the purpose of receiving the documents: s 494B(4). If a document is given to a person by this method and the document was dispatched from a place in Australia to an address in Australia, the person is taken to have received the document 7 working days (in the place of the address) after the date of the document: s 494C(4)(a). This will be so even if the document was never in fact received. Therefore, if the notice of a decision to refuse a visa was sent in accordance with s 494B(4), from a place in Australia to an address in Australia, the prescribed time period within which a review application must be lodged with the Tribunal commences 7 working days after the date of the notice.
The Tribunal found that the delegate’s decision was sent by prepaid post on 26 February 2008 to the applicant’s latest address for service provided to the Minister for the purposes of receiving documents. The Tribunal was satisfied that the applicant was notified of the decision in the prescribed way for the purposes of s.66(1), as Departmental records indicated that mail item was sent to the applicant’s Campsie address by registered post on 26 February 2008 (CB 57). The Tribunal was satisfied on this evidence that the decision notification was dispatched within three working days of the date of the letter, as required by s.494B(4) (CB 71.2).
Accordingly, it found that the applicant was taken to have received the notice on 6 March 2008, being 7 working days after the date of the notice. Applying the time limit prescribed in s.412(1)(b) and reg 4.31(2)(b), the Tribunal considered the last day on which the applicant could lodge an application for review was 3 April 2008. The applicant had lodged the application on 24 April 2008, after the time period had expired. Since the application had been received by the Tribunal outside the mandatory time period, the Tribunal concluded that had no jurisdiction to review the delegate’s decision (CB 71.5).
These proceedings began with a show cause application filed on 9 July 2008. The applicant asserts that the Tribunal made a jurisdictional error because he did not receive the letter from the Minister's Department notifying him of the delegate's decision. He further asserts that the Tribunal denied him procedural fairness by not giving him a hearing. He also reasserts his protection visa claims. Those protection visa claims were also restated in an affidavit filed with the application which I received as a submission.
I have before me as evidence the court book filed on 29 July 2008.
In his oral submissions, the applicant told me that he had received all correspondence sent to him apart from the notification letter from the Department (CB 29 and 30). I note that the letter was sent by registered post. The applicant queried why the letter was sent by registered post. I explained that this was probably done because of the importance of the letter. At CB 39 there is a photocopy of the envelope in which the notification letter and the delegate's decision record was apparently enclosed. The photocopy of the envelope indicates that the letter was "returned to sender" on 27 February 2008 because delivery of the letter was refused. The applicant was not able to offer any explanation why delivery of the letter would have been refused. He denies refusing delivery himself.
The applicant stated from the bar table that he had provided his contact telephone number to the Department and that the Department should have telephoned him to warn him that the letter was on its way. However, there is no record of him providing any contact telephone number to the Department. He left blank item 16 of the protection visa application form at CB 13 and ticked the box "no" in answer to the question whether he agreed to the Department communicating with him by fax, email or other electronic means. The only means the Department had of communicating with the applicant was at his nominated address. That address was used by the Department.
There is no reason to doubt the correctness of the Tribunal's finding that the Departmental notification letter was despatched in accordance with ss.66(1) and 494B(4) of the Migration Act. It followed that the applicant was deemed to have received the letter seven working days after the date of it even though it was returned unclaimed. The Tribunal correctly found that the applicant was taken to have been notified of the delegate's decision on 6 March 2008. He had 28 days to apply for review. That period expired on 3 April 2008. His review application was not received by the Tribunal until 24 April 2008. It is well established that the Tribunal has no power to extend that time limit[1]. The lack of power by the Tribunal to extend the time limit has been noted and criticised in this Court and in other Courts on many occasions[2].
[1] Fernando v Minister for Immigration & Anor [2000] FCA 324
[2] Park v Minister for Immigration & Anor [2008] FMCA 856
Nevertheless, the duty of the Court, like the Tribunal, is to apply the law. The Tribunal correctly found it had no jurisdiction in the matter. I have no jurisdiction to review the decision of the delegate. The only Court with jurisdiction to review that decision is the High Court of Australia[3]. It is also possible for the Minister to reconsider the delegate's decision if he was so minded. That is beyond the scope of this proceeding.
[3] MZXOT v Minister for Immigration & Anor [2008] HCA 28
There is no arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $2,500. The applicant was, by this stage of the hearing, in a state of some agitation and emptied coins from his wallet onto the bar table. I explained to him that I would not require payment of costs by any particular time and that the issue for me was not his capacity to pay but whether the costs and disbursements have been properly and reasonably incurred. I see no reason to depart from the Court scale in this matter. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 19 September 2008
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