SZNAE v Minister for Immigration
[2009] FMCA 146
•26 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNAE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 146 |
| 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.52, 65, 66, 411, 412, 414, 425, 494B, 494C, 494D Migration Regulations 1994 (Cth) |
| First Applicant: | SZNAE |
| Second Applicant: | SZNAF |
| Third Applicant: | SZNAG |
| Fourth Applicant: | SZNAH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3184 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 26 February 2009 |
| Delivered at: | Sydney |
| Delivered on: | 26 February 2009 |
REPRESENTATION
The First and Second Applicants appeared in person
| Solicitors for the Respondents: | Ms J Dinihan Clayton Utz |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,190.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3184 of 2008
| SZNAE |
First Applicant
SZNAF
Second Applicant
SZNAG
Third Applicant
SZNAH
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 4 November 2008. The Tribunal found that it had no jurisdiction in the matter because the review application was filed late.
There are four applicants: the husband, the wife and two children. The applicants sought protections visas on 30 April 2008. The Minister's delegate refused their application on 11 June 2008. The notification letter was apparently posted the following day. The applicants sought review by the Tribunal on 18 September 2008. The Tribunal formed the preliminary view that it had no jurisdiction because the application was received outside the prescribed time limit. The Tribunal wrote to the applicants on 30 September 2008 inviting submissions on that issue but received no response.
The applicants rely upon a show cause application filed on 3 December 2008. That application asserts that the Tribunal failed to invite the second applicant to a hearing according to law and that the Tribunal failed to comply with s.425 of the Migration Act 1958 (Cth). The application is supported by a short affidavit, which I received. I also received the court book filed on 6 January 2009.
The first and second applicants attended today's hearing before me and made oral submissions. They acknowledged receipt of the delegate's notification letter and sought to explain the delay in seeking review before the Tribunal. The applicant wife explained that she did not know how to deal with the delegate’s decision due to language difficulties and that she was also sick. The applicant husband referred to their lack of legal knowledge and some personal issues.
I do not rule out the possibility that the applicants may have been able to persuade the Tribunal to expand the time for lodging a review application if the Tribunal had had the power to do so. However, the Tribunal does not have that power. The inability of the Tribunal to enlarge the time for the making of a review application is an unfortunate situation which I have commented on a number of times previously[1]. That is a matter for the Government and Parliament to consider.
[1]Park v Minister for Immigration [2008] FMCA 856
There is no arguable case of jurisdictional error by the Tribunal in making its decision. The Tribunal was under no obligation to invite the applicants to a hearing if it did not have jurisdiction. The Tribunal accurately and comprehensively set out the relevant law in paragraphs 6 through to 13 of its decision (court book, pages 81 and 82):
The Tribunal’s jurisdiction arises if a valid application is made under s.412 of the Act for review of an RRT-reviewable decision: s.414 of the Act. Section 411 sets out the various decisions that are RRT-reviewable decisions. A decision to refuse to grant a Protection (Class XA) visa under s.65 of the Act is covered by s.411(1)(c). Section 412(1)(b) requires an application for review to be given to the Tribunal within the prescribed period. The prescribed periods are set out in r.4.31 of the Migration Regulations 1994 (the Regulations) and commence on the day on which the applicant is notified of the decision.
In respect of an applicant who has applied for review of an RRT-reviewable decision covered by s.411(1)(c) and is not in immigration detention when notified of the delegate’s decision, the application for review must be lodged at a registry of the Tribunal within a period not later than 28 days after the day on which notice is received: s.412(1)(b) and r.4.31(2)(b). Thus, notification of the decision provides the reference point for the commencement of the limitation period provided for in s.412(1)(b) and r.4.31(2)(b). There is no provision for extension of time. An application sent to the Tribunal by post or by fax is taken to be given to the Tribunal when it is received at a registry of the Tribunal: r.4.31(4).
The provisions relevant to this matter that deal with notification of a decision to refuse to grant a visa are contained in ss.52(3C), 66, 494B, 494C and 494D of the Act and r.2.16 of the Regulations.
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 must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s.494B. Section 494B specifies alternative methods for giving a document to a person.
One of the methods specified in s.494B consists of the Minister 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 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 to grant a visa was sent in accordance with s.494B, from a place in Australia to an address in Australia, the prescribed period within which a review application must be lodged with the Tribunal commences 7 working days after the date of the notice.
Section 52(3C) provides that if, in accordance with the Regulations, 2 or more non-citizens apply for visas together, notifications given to any of them about the application are taken to be given to each of them.
If an applicant has nominated an 'authorised recipient' by giving the Minister written notice of the name and address of another person authorised by the applicant to receive documents in connection with matters arising under the Act or the regulations, the Minister must give the authorised recipient, instead of the applicant, any documents that the Minister would otherwise have given to the applicant: s.494D(1) of the Act. If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the applicant: s.494D(2) of the Act. However, this does not prevent the Minister giving the applicant a copy of the document.
Section 66(2) provides that notification of a decision to refuse a visa must contain certain information about why the visa was refused and, if there is a right of review, how to apply for review of the decision.
In paragraphs 14 to 22 of its decision (court book, pages 82 and 83) the Tribunal carefully considered the relevant facts:
The Tribunal has before it the Department’s file.
The material before the Tribunal indicates, and the Tribunal finds, that the applicant was not in immigration detention when notified of the decision.
The Tribunal finds that the applicant is seeking review of an RRT-reviewable decision covered by s.411(1)(c) and that the applicable prescribed period is 28 days, commencing on the day on which the applicant was notified of the decision: s.412(1)(b) and r.4.31(2)(b).
The Tribunal is satisfied that the contents of the delegate’s decision notice complied with the requirements of s.66(2).
The Department’s Mail and Distribution service provided information which confirms that the decision notification letter was sent by registered mail on 12 June 2008 to the applicant’s residential address within 3 working days of the date of the letter.
The material before the Tribunal indicates that the applicants did not give the Minister written notice under s.494D of the name and address of an authorised recipient and that the decision notice, dated 11 June 2008, was sent by prepaid post on 12 June 2008 from a place in Australia to the applicants at an address in Australia, being the last residential address provided to the Minister by the applicants' for the purposes of receiving documents.
The Tribunal finds that the decision notice was dispatched within 3 working days of the date of the letter to the correct address, in accordance with s.66(1) and s.494B(4). Therefore, the applicants are taken to have received the notice on 20 June 2008, being 7 working days after the date of the notice.
The Tribunal finds that the applicants were properly notified of the delegate’s decision and are taken to have been notified on 20 June 2008. Therefore, the prescribed period of 28 days within which the application for review could be lodged ended on 18 July 2008.
The application for review was not received by the Tribunal until 18 September 2008, after the prescribed period had expired.
The Tribunal was drawn to the inevitable conclusion that the application received on 18 September 2008 was received two months late. The delegate's decision was properly and lawfully notified to the applicants. The applicants were taken to have received that notice on 20 June 2008. The last date on which the applicants could have made a valid application for review was 18 July 2008. On that basis the Tribunal decision is undoubtedly correct.
I find that the applicants have not raised any arguable case for jurisdictional error by the Tribunal.
Accordingly, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The application having been dismissed, costs should follow the event. The Minister seeks costs in the sum of $2,190. Scale costs would be $2,500. The applicant's did not wish to be heard on costs. I will order that the first and second applicants pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $2,190.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 27 February 2009