SZMUR v Minister for Immigration
[2008] FMCA 1722
•3 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMUR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1722 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of RRT affirming decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of the People’s Republic of China claiming fear of persecution for reason that she is a Falun Gong practitioner – where Tribunal found it had no jurisdiction – where application out of time – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.66, 412, 421, 422, 422A, 47, 494B, 494C, 494D Migration Regulations 1994 reg.2.16, 4.31 |
| SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 324 NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173 |
| Applicant: | SZMUR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2536 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 December 2008 |
| Date of Last Submission: | 3 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 3 December 2008 |
REPRESENTATION
| The Applicant: | Applicant appeared in person |
| Solicitors for the Applicant: | Not legally represented |
| Appearance for the Respondents: | Ms Warner-Knight |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent's costs fixed in the sum of $3,800.00.
I allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2536 of 2008
| SZMUR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant in this case asks the Court to find that the Refugee Review Tribunal fell into jurisdictional error when it decided that it did not have jurisdiction to deal with her application for review of a delegate of the Minister for Immigration & Citizenship. She claims that she has been unfairly treated, both by the delegate of the Minister for Immigration & Citizenship and by the Tribunal. It has been explained to the applicant that the Court does not have power to review a decision by the delegate, although it certainly does have power to review a decision by the Refugee Review Tribunal.
The applicant is a citizen of the People's Republic of China.
She applied for a Protection (Class XA) visa on 25th March 2008.
In her application, she provided her residential address in a suburb of Sydney and her postal address, which was a post office box number in the same suburb. The delegate of the Minister for Immigration & Citizenship wrote to the applicant on 26th March 2008, acknowledging receipt of her application and asking her to undertake a health examination. That letter was sent to the applicant's post office box number. The delegate then wrote to the applicant again on 8th April 2008. This time, the letter was sent to the applicant's residential address and not to the post office box number. The letter was important because it asked the applicant to attend an interview with the delegate on Tuesday 6th May. However, the applicant did not attend the interview. The delegate refused the application for a visa on 9th May 2008. In the delegate's reasons and findings, the delegate referred to the letter advising the applicant about the interview and said this:
In the interview letter the applicant was also advised that if she did not attend the interview without an acceptable reason, the Protection visa application would be decided without any further delay, based on the information already held at the time.
The applicant did not phone me to confirm attendance, or to advise that there was any reason why she was unable to attend. The applicant did not attend as scheduled.
In the absence of an interview, I am unable to be satisfied that the applicant has a well‑founded fear of persecution for any of the Convention reasons. Consequently, I am not satisfied that the applicant is a person to whom Australia owes Protection Obligation under the Refugees Convention.[1]
[1] See Court Book page 48.
The applicant wrote to the delegate in a letter which was mistakenly dated 12th March 2008, but clearly from its text, was written on
12th May. The letter was received by the Department on 14th May 2008, and in that letter, the applicant advised the delegate that on
9th April 2008she went to a friend's house at Bankstown to live temporarily, and it was only the evening before, that she had returned to her residence and found a notice. That morning she went to the post office to collect the letter, which was the letter inviting her to attend an interview on 6th May. She asked the delegate to forgive the mistake and give her a further chance to attend the interview.[2]
[2] See Court Book page 49.
Unfortunately, by that stage, the delegate had already made a decision refusing the application for a visa. As it turned out, for reasons that are not clear, that letter was returned unclaimed by the Department on
25th June 2008. On 19th August 2008, the applicant applied to the Refugee Review Tribunal seeking a review of the delegate's decision. In that application, she gave the same residential address and the same post office box number as she had previously given to the Department. She provided a statement to the Refugee Review Tribunal, a copy of which can be found in the Court Book at page 55. In that statement, the applicant indicated that she did not receive the decision of the delegate until 13th August 2008. She explained about not receiving the letter inviting her to an interview until after the time, and she went on to set out how she went to the post office and the post office staff checked their register of registered letters, but did not find any addressed to her post office box number. Unfortunately, she apparently did not check or ask the post office to check, any letters addressed to her at her street address.
The Tribunal wrote to the applicant on 20th August 2008, acknowledging receipt of the application. On 29th August, the Tribunal wrote again to the applicant in a letter addressed to her at her post office box number. The letter was headed, "Invitation to comment and provide further information on eligibility issues". The letter said:
We received your application for review on 19 August 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 9 May 2008.
Therefore:
· you were taken to be notified of the decision on 20 May 2008.
· the last date to apply to the Tribunal was 17 June 2008.
· the Tribunal did not receive your application until 19 August 2008.
What can I do now?
If you disagree, and you think the Tribunal has power to consider your application, please write to us. We must receive your letter by 23 September 2008."[3]
[3] See Court Book page 63.
The applicant wrote to the Tribunal in a letter dated 3rd September 2008. It was received on 5th September 2008. In that letter, the applicant gave virtually the same explanation as she had previously given.
The Tribunal signed its decision on 12th September 2008, and posted a copy of that decision to the applicant under cover of a letter dated that same day. A notification on the letter in the Court Book indicates that the letter with the decision was posted on 15th September 2008.
The Tribunal found that it did not have jurisdiction in that matter.
In the decision record, the Tribunal said it had formed the preliminary view that it did not have jurisdiction, because the application for review was received outside the prescribed time limit. The Tribunal set out the relevant law, stating that its jurisdiction arises if a valid application is made under s.412 of the Act for review of an RRT reviewable decision. The Tribunal went on to say that s.412(1)(b) requires an application for review to be given to the Tribunal within the prescribed period. Prescribed periods are set out in reg.4.31 of the Migration Regulations 1994 and commence on the day on which the applicant is notified.
The Tribunal stated that the application for review must be lodged at the Registry of the Tribunal not later than 28 days after the day on which notice is received, and there is no provision for extension of time. The Tribunal referred to ss.66, 494B, 494C and 494D of the Migration Act and reg.2.16 of the Migration Regulations. The Tribunal referred to one of the methods specified in s.494B of the Act, which consists of the Minister dispatching the document within three 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 documents. The Tribunal stated that the person is taken to have received the documents seven working days after the date of the document[4] and this will be so even if the document was never in fact received.
[4] See s.494C(4)(a).
The Tribunal's findings and reasons are set out in the Court Book on pages 70 through to 72. The Tribunal noted that it had regard to the applicant's submissions received on 19th August and 5th September 2008 in relation to the question of jurisdiction. The Tribunal was satisfied that the applicable prescribed period of lodging an application, was 28 days commencing on the day on which the applicant was notified of the decision.[5] The Tribunal was satisfied that the contents of the decision notice complied with the requirements of s.66(2).
The Tribunal stated that it made inquiries with the Department to determine whether the letter was sent within three working days, and it was satisfied that the decision notification was dispatched by prepaid registered post on 9th May 2008. The Tribunal was satisfied that the notice was sent by prepaid post on 9th May 2008 from a place in Australia to the applicant at an address in Australia, being the last residential address provided to the Minister by the applicant for the purpose of receiving documents. The Tribunal found the decision notice was dispatched within three working days of the date of the letter to the correct address, and found that the applicant was taken to have received the notice on 20th May 2008, being seven working days after the date of the notice. The Tribunal considered the applicant's two sets of submissions, but did not accept those submissions provided any basis for accepting the review application lodged on 19th August 2008.
[5] See s.412(1)(b) and reg.4.312(b).
The Tribunal said:
There is no provision for extension of time in which to lodge an application for review and the Tribunal has no discretion to accept an application which is lodged outside the prescribed timeframe.
The Tribunal finds that the applicant was properly notified of the delegate's decision and is taken to have been notified on 20 May 2008. Therefore, the prescribed period of 28 days within which the application for review could be lodged, ended on 17 June 2008.
The application for review was not received by the Tribunal until 19 August 2008, after the prescribed period had expired.
As the application for review was received by the Tribunal outside the mandatory time limit, it is not a valid application and the Tribunal has no jurisdiction in this matter."[6]
[6] See Court Book page 72.
The applicant commenced proceedings in this Court by filing an application and an affidavit in support on 30th September 2008. In her application, the applicant seeks orders:
(1) That the decision of the Tribunal be quashed, and
(2) That the matter be remitted to the Tribunal differently constituted to be determined according to law.
I would comment at this stage that in order for the Court to make an order quashing the Tribunal decision, and remitting the application for review of the delegate's decision to the Tribunal for determination according to law, the Court must be satisfied that the Tribunal decision is affected by jurisdictional error. In any event, even if the Court is satisfied that jurisdictional error has been made out; it is not the case that the Court would order that the Tribunal be differently constituted.
This question has been considered by the Full Court of the Federal Court in SZEPZ v Minister for Immigration & Multicultural Affairs.[7] In that matter, which is an appeal from a decision of the Federal Magistrates Court, their Honours Emmett, Siopis and Rares JJ, considered the effect of ss.421, 422 and 422A of the Migration Act. Their Honours said at [13]:
Section 422A is enlivened if the Principal Member thinks the reconstitution of the Tribunal is in the interests of achieving the efficient conduct of a particular review in accordance with the objectives set out in s.420(1). The Principal Member may direct that the member constituting the Tribunal for the particular review be removed and that another member constitute the Tribunal for the purposes of that review. However, under subs‑s.422A(2), the Principal Member must not give such direction unless certain prerequisites have been satisfied.
[7] [2006] FCAFC 107.
Their Honours went on in that decision, to consider the question of the reconstitution of the Tribunal in that case. Their Honours said at [30]:
It is by no means clear that the Federal Magistrates Court had power or jurisdiction to direct that the Tribunal be constituted differently for the purpose of reconsidering the appellant's application for review of the delegate's decision. As indicated above, the constitution of the Tribunal is a matter for the Principal Member.
In my view, even if the Court were satisfied that this application should be remitted to the Tribunal, it would be inappropriate to make any direction that the Tribunal should be differently constituted.
The applicant in her application sets out grounds of review in which she complains that the Department of Immigration & Citizenship did not accept the fact that she had not received the letter inviting her to an interview until she returned from the friend's home, and when she did, she found it was too late for the interview. As I have indicated to the applicant, the Court does not have the power to review the delegate's decision, although it certainly has power to review a decision of the Refugee Review Tribunal. This submission would, of course, be relevant if the Court were to find that the applicant had not been notified, or properly notified, of the decision of the delegate to refuse the application for a visa. However, as the claim relates to the letter inviting the applicant to attend an interview, it is not a matter that the Court has power to review.
The applicant goes on to claim:
The Refugee Review Tribunal also didn't consider my real fact and didn't give me a chance for interview.
I think the delegates of Immigration & Citizenship as well as the Refugee Review Tribunal are not fair towards my application.
I would comment that it is clear that where the applicant refers to an interview, in that part of the application, that she is referring not to an interview with the delegate, but to a hearing before the Tribunal.
The applicant has provided to the Court a written submission, prepared for her by the Macarthur Legal Centre. The Macarthur Legal Centre indicates in that submission dated 24th November 2008, that it had agreed to provide the applicant with assistance, but not legal representation in regard to the matter before this Court.
The submission points out that the Department of Immigration & Citizenship wrongly sent the refusal letter to the applicant's previously stated residential address, rather than the post office box number which she had nominated as her address for service. The submission states that the applicant was very adamant that she had never received the letter from the Department of Immigration & Citizenship until it was too late, and she had been constantly checking her post office box, waiting for any relevant mail. She had been temporarily staying with friends in Bankstown who are helping to support her.
The submission goes on to say:
It is our submission that DIAC made a clerical mistake in sending the refusal letter to her home address and not her postal address.
The submission goes on to ask the Court for the following orders:
i)DIAC should acknowledge their clerical error;
ii)That the Refugee Review Tribunal denied the applicant - note the applicant's name has been deleted as she is entitled to protection of her identify under s.91X of the Migration Act - natural justice in not allowing her to submit her appeal as soon as she became aware of the refusal;
iii)That this matter be referred back to the Refugee Review Tribunal for them to consider the merits of her refugee claim;
iv)That the applicant's permission to work be regranted to her while her appeal is being considered."
The Court does not have the jurisdiction to order that the Department of Immigration & Citizenship should acknowledge any clerical error.
It does not have the jurisdiction to make any order that the applicant be granted or regranted the work permit. Permission to a visa holder to work in Australia is something which can only be granted by the Minister or a delegate for the Minister.
The lawyers for the Minister have provided a written outline of submissions upon which they rely and I am referred to, in particular, the provisions of s.494B(4)(c)(ii) relating to methods by which the Minister gives documents to a person.
The applicant's request for a further interview with the delegate was not received until 14th May 2008. Unfortunately, that was too late, because the delegate had already decided on 9th May 2008 that the application for the visa should be refused. The Minister has submitted, quite correctly, that the applicant cannot challenge the delegate's decision in the Federal Magistrates Court, referring to s.476(2)(a) of the Migration Act.
The applicant complains that the Tribunal did not consider the real facts and did not give her a chance to have a hearing. A fair reading of the Tribunal's decision indicates that it did consider both written submissions that the applicant provided; the first which was submitted with the application for review, and the second, which was submitted in reply to the Tribunal's letter. The fact is that the Tribunal did not have jurisdiction to consider the application.
The Tribunal was satisfied that the delegate had complied with the requirements of s.494B(4) of the Migration Act when forwarding the notification of the decision to the application. That sub-section says:
Dispatch by prepaid post or by other prepaid means. Another method consists of the Minister dating the document and then dispatching it:
a) within three working days (in the place of dispatch) of the date of the document; and,
b) by prepaid post or other prepaid mean; and,
c) to:
i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or,
ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.
The Tribunal was satisfied that the letter was sent by prepaid post to the applicant at one of those two addresses, namely her residential address.
It is not relevant whether or not the applicant received that notice. Section 494C(4)(a) of the Act provides:
The applicant is taken to have received the document if the document was dispatched from a place in Australia to an address in Australia, seven working days in the place of that address after the date of the document.
There is no doubt and the Tribunal was satisfied that it was sent by registered post to the applicant's residential address, which complies with the requirement of s.494B(4) of the Act.
There is a 28 day time limit. The Tribunal is required, under s.412 of the Act, to review an RRT reviewable decision if it is made in the approved form, and if it is given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision, and if it accompanied by the prescribed fee. It is well-established that the time limit provided in s.412 is a mandatory time limit and the Tribunal has no discretion to consider an application made outside that time or grant an extension of time. I am referred by the Minister to the decisions in Fernando v Minister for Immigration & Multicultural Affairs,[8] and NACG v Minister for Immigration & Multicultural Affairs.[9] Accordingly, as the application for review was received outside the time, it is submitted, and correctly, that it is not a valid application for review. The Tribunal considered the prescribed time limit, and found that that time limit, within which the application for review could be lodged, ended on 17th June 2008.
As the application for review was not received by the Tribunal until
19th August 2008, the prescribed period of time had expired. It is a mandatory time limit and therefore it was not a valid application. As it was not a valid application, the Tribunal had no jurisdiction.
[8] [2000] FCA 324 at [52].
[9] [2002] FCAFC 173 at [7].
There is no jurisdictional error. The Tribunal did not fall into error when it found that it had no jurisdiction in the matter, and it follows that the application before me must be dismissed.
There is an application for costs on behalf of the first Respondent Minister. The applicant has been unsuccessful in her claim and it is appropriate to make a costs order. The amount of $3,800.00 is within the scale provided. The applicant has put to the Court that she has no job and is not in a position to meet that order. Whilst that is not a ground not to make an order for costs in favour of the successful party, it is a ground for considering time to pay. In the circumstances, I am prepared to allow four months to pay.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 18 December 2008
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