SZNFB v Minister for Immigration
[2009] FMCA 514
•29 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNFB & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 514 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – whether jurisdictional error in the Tribunal finding that it did not have jurisdiction –whether the Tribunal pursuant to s.66(2)(d)(ii) is required to notify the applicant of the “three day rule” – whether the notification letter incorrectly stated the period for deemed receipt – the Tribunal is not required to specify that deemed receipt is dependent on dispatch within three days – the Tribunal’s letter complied with s.66(2)(d)(ii) – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.411, 412, 66, 494B, 494C, 5, 91R(1)(a) Migration Regulations 1994 (Cth) regs.4.31, 2.16 |
| I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] 210 CLR 109 Christie v The Honourable A R Neaves [2001] FCA 1401 Khan v Minister for Immigration and Citizenship [2007] FMCA 419 Zhang Liang Cao v Minister for Immigration and Citizenship [2009] FMCA 70 Milon v Minister for Immigration and Citizenship [2009] FMCA 85 Zhang Liang Cao v Minister for Immigration & Citizenship & Anor ( NSD 175/2009) Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377 |
| First Applicant: | SZNFB |
| Second Applicant: | SZNML |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 220 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 27 April 2009 |
| Date of Last Submission: | 27 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2009 |
REPRESENTATION
| Counsel for the Applicants: | Mr Killalea |
| Solicitors for the Applicant: | Nil |
| Appearing for the Respondents: | Mr R Baird |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 30 January 2009, and amended on 27 April 2009, is dismissed.
The applicants pay the first respondent’s costs set in the amount of $5,850.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 220 of 2009
| SZNFB |
First Applicant
SZNML
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me an application filed on 30 January 2009, and amended on 27 April 2009, and made under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 21 January 2009, which found that it did not have jurisdiction to review the decision of a delegate of the first respondent to refuse protection visas to the applicants.
Background
The following background is derived from the bundle of relevant documents put before this Court by the first respondent (the Court Book – “CB”):
1)The applicants are citizens of the People’s Republic of China (“China”) who arrived in Australia on 21 April 2008 and applied for protection visas on 30 May 2008. The applicant husband, who was joined as an applicant at the first Court date, applied for a protection visa as a member of the applicant wife’s (“the applicant”) family unit.
2)The application was refused by the Minister’s delegate on 24 July 2008 (CB 82 to CB 90).
3)The applicants were notified of this refusal by letter dated 24 July 2008, which appears to have been sent by registered post to the applicants’ residential address, which was also given as the postal address (see CB 13 and CB 82).
4)Notwithstanding this, the applicants were subsequently invited to attend an interview with the delegate to be held on 30 September 2008. This was done by letter again sent by registered post to the address for service, dated 3 September 2008 (CB 98 to CB 99). [It appears that the delegate accepted that earlier correspondence which had been returned as “undeliverable” had been sent to the wrong address and that, presumably, the application was still to be determined.]
5)On 18 October 2008 the Minister’s delegate decided to refuse the application (CB 106 to CB 120).
6)This decision was notified to the applicants by letter dated 18 October 2008 and, again, apparently sent by registered post to the applicants’ address for service (CB 102).
7)The applicants applied for review by the Tribunal on 27 November 2008 (CB 125 to CB 128).
8)On 3 December 2008 the Tribunal wrote to the applicants, noting that it had received the application for review on 27 November 2008 and that it appeared, in light of information available to the Tribunal, that the last day by which the applicants were able to apply for review to the Tribunal was 25 November 2008. Therefore, in that circumstance, the Tribunal had no power to consider the application which was made after that time (CB 134).
9)The applicant responded by letter received by the Tribunal on 30 December 2008. She explained that when she received notification of the delegate’s decision on 28 October 2008, she made her application for review on 4 November 2009. Further, that on 25 November 2008, by which time she had not received any acknowledgement, she contacted the Tribunal and was advised that there was no record of any receipt of any application from her. She stated that she: “filled out a new application form and lodged it to your Department” (CB 136).
10)On 21 January 2009 the Tribunal decided that it did not have jurisdiction to review the application and notified the applicants by letter dated 22 January 2009 (CB 139 to CB 143).
The Tribunal
The Tribunal found that the applicants were seeking review of an “RRT reviewable decision” of the type described in s.411(1)(c) of the Act. That the applicable prescribed period for the making of such applications for review was twenty eight days, commencing on the day on which the applicants were notified of the decision (with reference to s.412(1)(b) and reg.4.31(2)(b) of the Migration Regulations 1994 (Cth) (“the Regulations”)).
The Tribunal found that it was satisfied that the contents of the delegate’s decision notice complied with the requirements of s.66(2) of the Act. Further, after making enquiries as to the date of dispatch, the Tribunal found that the decision notice was dispatched within three working days of the date of the letter to the “correct address”, in accordance with ss.66(1) and 494B(4). The applicants, therefore, were taken to have received notice on 28 October 2008, being seven working days after the date of the notice.
The Tribunal considered the applicants’ submissions, but noted that the applicants had provided no evidence of having submitted a review application within the appropriate time. Having found that they had been properly notified of the delegate’s decision, it found that the application for review was received after the prescribed period had expired. On that basis, the Tribunal found that it did not have jurisdiction to review the application.
Hearing before the Court
At the hearing before the Court Mr R Killalea of Counsel appeared for the applicants. Mr R Baird appeared for the first respondent.
Leave was granted for the applicants to proceed with an amended application filed out of time. (No objection was taken by the first respondent.)
Application to the Court
The sole ground in the amended application is:
“The Refugee Review Tribunal (RRT) erred in law, contra s.414 Migration Act 1958, by failing to exercise jurisdiction to review a decision of a delegate of the First Respondent when the application for review had been properly made, in time, to the RRT (the RRT incorrectly finding that the application before it had been made out of time when, in fact the delegate had not complied with sub-para 66(2)(d)(ii) and time had not begun to run).
Particulars
Delegate’s letter of 18 October 2008 (CB 102)
Application for Review lodged 27 November 2008
S.66 Migration Act 1958
S.494B & s.494C Migration Act 1958
(contra Milon v Minister [2009] FMCA 85, and cases therein).”
Legislation
The following legislation is relevant to this issue:
1)Pursuant to s.66(1) of the Act a refusal to grant a visa must be notified to the applicant “in the prescribed way”.
2)Section 66(2) of the Act requires, amongst other things, that notification of a decision to refuse an application for a visa (where the applicant has a right to have the decision reviewed, relevantly, in the current case, under Part 7), state “the time in which the application for review may be made …” (s.66(2)(d)(ii)).
3)Relevantly, for the purposes of s.66(1), reg.2.16 of the Regulations requires the Minister to notify an applicant of a decision to refuse the grant of a visa by one of the methods specified in s.494B of the Act (reg.2.16(3)).
4)Section 494B provides, amongst other things, that the Minister may dispatch a document by prepaid post or other prepaid means within three “working days” of the date of the document (s.5 of the Act defines “working day” to mean any day that is not a Saturday, Sunday, or public holiday).
5)Section 494C(4)(a) (relevantly) is in the following terms:
“(4) If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia--7 working days (in the place of that address) after the date of the document …”
6)Section 412(1)(b) of the Act is in the following terms:
“(1) An application for review of an RRT‑reviewable decision must:
…
(b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision …”
Applicants’ Submissions
The applicants’ arguments and submissions rely relevantly on the following:
1)Section 66(1) of the Act provides that when the Minister relevantly refuses to grant a visa he must notify the applicant of the decision in the prescribed way.
2)Section 5 provides that “prescribed” means “prescribed by the regulations”.
3)Section 66(2)(d)(ii) states that if an applicant has the right to have a decision reviewed under Part 7, the notification must state the time in which the application for the review must be made.
4)It was common ground that this notification must be in writing. Therefore, a document is generated by which notification can be made in accordance with s.66.
5)Section 494B provides for: “methods by which the Minister gives documents to a person.”
“(a) within 3 working days (in the place of dispatch) of the date of the document; and
…
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or
…”
6)Section 494C(4) provides dispatch by prepaid post or by other prepaid means. If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means) the person is taken to have received a document:
“(a) if the document was dispatched from a place in Australia to an address in Australia--7 working days (in the place of that address) after the date of the document; or
…”
The applicants’ complaint is that the notification was not properly given. Mr Killalea referred the Court to the copy of the relevant notification letter (reproduced at CB 102 to CB 105) and, in particular, noted that the letter was dated 18 October 2008. The complaint is that the letter did not comply with what is set out in s.66(2)(d)(ii) and that this is said with reference to the following relevant parts of the letter:
“Review Rights
No further decision on this visa application can be taken at this office. However, you are entitled to apply to the Refugee Review Tribunal (RRT) for a review of the decision. An application for review of this decision must be made to the RRT within 28 calendar days after you are taken to have received this letter.
...
As this letter was sent by mail to an address in Australia, you are taken to have received it seven (7) working days after the date of the letter. A working day does not include weekends or public holidays in the Australian state or territory where this letter was posted to.
...”
The Applicant’s Submissions
Mr Killalea submitted that there was evidence before the Court that the letter was sent on 20 October 2008 (see CB 131.2 to CB 132).
The applicants, with reference to the paragraphs set out above, take issue that the letter did not state that the statements made in those paragraphs were predicated on the qualification that the “seven (7) working days” and “28 calendar days” periods only began to run if the letter had been dispatched within three working days of the date of the letter.
Mr Killalea’s submission was that the letter deemed the relevant receipt date to be 28 October 2008 in circumstances where this date was conditional upon the occurrence of a “temporal event”. That is, the dispatch of this letter within three working days of the date of its date. The delegate’s letter was silent as to the need for the satisfaction of that event. Further, that the statement in the delegate’s letter (to the effect that: “As this letter was sent by mail to an address in Australia, you are taken to have received it seven (7) working days after the date of the letter”) did not correctly state the statutory position because it should have said, in effect, that the relevant time only applies where the letter has been dispatched within three working days of the date of the letter to an address for service, a residential or business address provided by the applicant (“a particular address”).
The issues underlying the ground of the application, therefore, were said to be:
1)Whether s.66(2)(d)(ii) required the notification letter to state the temporal requirement that is, that the letter had to be dispatched by post within three days of its date in order for the stated relevant time to apply.
2)Whether the notification letter incorrectly stated a temporal requirement, that is, a seven working day period for deemed receipt, when such a period only applies if the letter was sent to a “particular” address.
Complaint: The three day requirement
Mr Killalea submitted that the failure to refer to the “three day requirement of section 494B(4)” in the delegate’s notification letter presumes compliance with that provision, in circumstances where the letter may have been dispatched more than three days after its date. In these circumstances, it was submitted, an applicant receiving such a letter after the lapse of the relevant seven day and twenty eight day periods that are referred to in the letter, would be misled into accepting that the period within which an application for review could be made had lapsed. Mr Killalea submitted that there would be a clear “manifest unfairness” in such circumstances, in that the applicant would be led to believe that the opportunity for review had been lost, when that clearly would not have been the case.
The argument was that if s.66(2)(d)(ii) were to be interpreted as requiring a reference to the three day period this would safeguard against the possibility of such unfairness. He relies on I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] 210 CLR 109 at [146] and [181] and Christie v The Honourable A R Neaves [2001] FCA 1401 at [22] for the proposition that where two or more statutory interpretations are open – one standing to render an unfair outcome, and the other one standing to render a fair outcome, then the latter is to be preferred.
In submissions Mr Killalea also made reference to three judgements of this Court: Khan v Minister for Immigration and Citizenship [2007] FMCA 419 (“Khan”) (particularly [14] to [15] per Scarlett FM), Zhang Liang Cao v Minister for Immigration and Citizenship [2009] FMCA 70 (“Cao”) (particularly [17] to [30]) per Cameron FM and Milon v Minister for Immigration and Citizenship [2009] FMCA 85 (“Milon”) (particularly [13] to [27]) per Emmett FM.
His submission was that Khan was clearly wrongly decided and that, given that the Court followed Khan in the other two cases, they too were wrongly decided. He invited the Court not to follow Khan.
The submission was that Khan was wrongly decided for two reasons:
1)In Khan, the Court was satisfied by the outcome. That is, that the letter was in fact posted within three days of its date. It was not determined with the “proper” interpretation, and having recourse to the mandatory and preliminary requirements, of s.66(2)(d)(ii).
2)The Court in Khan failed to appreciate the adverse consequences that might flow to an applicant who is misled by a position stated at the time of signing the letter. That is, that there is a presumption with the “current wording” that the delegate can speak to the future and that the letter would be posted within three days, when this might ultimately prove not to be the case.
Consideration
In Khan at [14]:
“…
In my view, the position as described by counsel for the respondent minister represents the law. That is, that the obligation of s.66(2)(d)(ii) of the Migration Act is simply to state the time in which an application for review may be made. This means that the applicants were taken to have received the documents seven working days after the date under the provisions of s.494C(4)(a) of the Act where it is in fact the case that the document was sent within three days of the date of the document ...”
[Emphasis added]
It may be, with respect, that the wording emphasised in this extract may create the basis for the argument submitted by Mr Killalea that the Court in Khan was focused on the outcome in that particular case, rather than proper statutory interpretation.
Whether such an argument may be raised or not, I am not persuaded, in any event, that his Honour was “plainly wrong”. The relevant test was set out, for example, as the Minister submits, in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 230 ALR 1 at [148] per Weinberg J:
“…
The word ‘plainly’ does more than simply add emphasis. It suggests that the error must be manifest or, if it does not rise to that level, at least capable of being easily demonstrated. In a sense, the error must be so clear as to enable a later court to say that the point is not reasonably arguable.”
In my respectful view, regard must be had to the totality of what his Honour said. That is, that the obligation in s.66(2)(d)(ii) of the Act is “simply” to state the relevant time in which the application may be made. In my respectful view, the sentence that follows in his Honour’s Reasons for Judgment applies this principle to the facts of the case before his Honour.
The issue, in my respectful view, is also concisely put in Cao at [27] to [28] where the Court said:
“27. In determining whether jurisdictional error affected the Tribunal’s decision, it is only necessary to determine whether the applicant was actually advised of the time periods applicable to any review he might wish to bring to the Tribunal. That he was not alerted to the potential inaccuracy of the time periods specified in the letter because of a possible failure by the delegate to meet the requirements of s.494B(4)(a) is of no consequence because they were not inaccurate.
28. In this case, there was no need to suggest any qualification because the letter was objectively accurate. Therefore, the Tribunal did not err when it concluded, as a jurisdictional fact, that the contents of the delegate’s decision notice complied with the requirements of s.66(2).”
I respectfully agree with his Honour, and his Honour’s reminder that the issue before the Court in cases of this type is whether there is jurisdictional error in the Tribunal’s decision that it did not have jurisdiction to deal with the application for review put before it. (A direct analogy can be drawn between the Migration Review Tribunal and the Refugee Review Tribunal.)
I should just note that the Federal Court (per North J) recently (18 May 2009) dismissed, with costs, an appeal against the Judgment in Cao. [See Zhang Liang Cao v Minister for Immigration & Citizenship & Anor – NSD 175/2009]. I have not had the benefit of reading his Honour’s Judgment. But, given that the appeal by the applicant in that case was unsuccessful, I do not see the need to further delay Judgment in this matter to await the published reasons.
In the current case, as in Cao, the Tribunal did not fall into error when it concluded as a jurisdictional fact that the letter of notification of the delegate’s decision complied with the requirements of s.66(2).
But whatever the applicant may say of Cao, what is clear is that in Milon Emmett FM did not, with respect, simply follow Khan and/or Cao, but dealt squarely with a submission put by the respondent in that case, which did not appear to have been put in the earlier two cases. (There was agreement between the parties in the current case that her Honour had given additional consideration in Milon).
Her Honour relevantly said:
“24. I accept the submission of Mr Markus that s.494B has no relevance to s.66. Section 66(2) clearly sets out the information that must be included in any notification letter. Relevantly, s.66(2)(d) states that the notification letter must inform the applicant that the delegate’s decision can be reviewed; the time in which the application for review may be made; who can apply for the review; and, where the application for review can be made. Section 494B of the Act, on the other hand, provides for the method by which notification is to be effected and if there is no compliance then there is no effective notification and time does not run against an applicant for the filing of an application for review of the delegate’s decision.
25. In the circumstances, I am not persuaded that the 3 Day Rule has ‘a temporal aspect’ that requires its inclusion in information required by of s.66(2)(d)(ii) of the Act. As stated above in these Reasons, Mr Killalea’s submission is based on the premise that the Delegate is required to inform the Applicant that the letter may not comply with the relevant statutory regime. As stated above in these Reasons, there is no such requirement in the legislation.”
Far from being plainly wrong, in my respectful view, her Honour was clearly correct. Mr Killalea’s submission in the current case, as was made in the case before her Honour, would require that the delegate inform the applicant that the letter in notification of the delegate’s decision may not be in accordance with the relevant legislation and that, on this basis, it may not be deemed to be effective notification of the delegate’s decision to the applicant.
As was found by her Honour, I cannot see any such obligation in s.66 of the Act (see Milon at [21]).
Section 66(2)(d)(ii) requires that the notification letter must notify the applicant as to “the time in which the application for review may be made”. In the current case the notification letter (CB 102 to CB 103) relevantly states:
“... However, you are entitled to apply to the Refugee Review Tribunal (RRT) for a review of the decision. An application for review of this decision must be made to the RRT within 28 calendar days after you are taken to have received this letter.
...
As this letter was sent by mail to an address in Australia, you are taken to have received it seven (7) working days after the date of the letter. A working day does not include weekends or public holidays in the Australian state or territory where this letter was posted to.
Please note that this review period is prescribed in law and an application for merits review may not be accepted after that date.”
The relevant legislation requires the letter to notify the applicant of the time in which the application for review may be made. The extract of the delegate’s letter set out above achieves this requirement. That is, the time in which the application for review must be made is twenty eight days after the applicant is deemed to have received the letter, and the applicant is deemed to have received the letter seven working days after the date of the letter.
I cannot see that the plain language of this legislation requires anything more, and certainly does not require the delegate to inform the applicant of any possible future invalidity in relation to the requirements of which notification is to be effected.
Further, Mr Killalea’s submission, in part, was that, at the time of signing and dating the letter, the delegate could not have known whether the letter would be dispatched within the requisite three days. In my view, to require the delegate to refer to this possibility in the letter of notification potentially could have the effect of creating the very confusion which Mr Killalea submitted should be avoided and would be contrary to the proposition of interpreting legislation in such a way that ensures certainty. As was said by Scarlett FM in Khan at [15]:
“In the absence of some evidence the document was not sent within three days of its date then the administrative certainty to which the Full Court referred and which presumably was the intention of the legislature, would be achieved.”
I note that his Honour also referred to Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377 and, in particular, what the Court said at [32]:
“The purpose of the provisions under consideration is to provide a scheme to achieve administrative certainty in the manner and time of giving notice of decisions made with respect to visa applications and as to the expiry date for any application to review such decisions …”
Nor do I agree with submissions by Mr Killalea that a failure to make reference to the “three day rule” in the letter of notification may lead to an applicant being unfairly misled as to the relevant time within which the opportunity to apply for review of the decision is available.
The answer to Mr Killalea’s submission, in this regard, was, in my view, already provided to him by Cameron FM in Cao, where his Honour said (and with whom I respectfully agree):
“Further, the applicant’s submissions overlook the fact that if a notification sent by prepaid post is not sent within three working days of the date of the document, it has not been dispatched in accordance with s.494B with the result that it has not been notified in accordance with s.66(1) and reg.2.16. The consequence of that situation would be that, although the applicant receives notification, time would not have commenced to run under s.347. Notwithstanding the applicant’s submissions to the contrary, I conclude that this means that no unfairness would result to the applicant were the notification letter not sent within the period mandated by s.494B(4) because he would remain free to lodge an application with the Tribunal. That is to say, any such application would not be out of time or invalid on that account.”
In all, therefore, I agree with Mr Baird’s submission that this Court should follow what was relevantly said in Milon, that is, that s.494B has no relevance to s.66(2). In addition, there is no unfairness to the applicant in omitting the reference to the “three day rule”, because if the letter is not dispatched within three days of its date, the time within which to lodge an application for review will not begin to run and an applicant can presumably lodge the application at any time.
In the current case, with reference to the above issue, I cannot see error in the Tribunal’s determination that it did not have jurisdiction in this matter based on its finding that the letter of notification of the delegate’s decision complied with s.66 of the Act.
The Applicants’ Complaint: Seven Working Days and Mailing to “Last” Address
The second issue raised on behalf of the applicants by Mr Killalea relies on that part of the letter of notification which states:
“… As this letter was sent by mail to an address in Australia, you are taken to have received it seven (7) working days after the date of the letter …”
Mr Killalea’s submission was that this misstates the relevant law in that s.494B(4)(c) requires the notification letter to be sent to the last address for service provided to the Minister by the recipient or the last residential or business address provided.
The letter, in the current case, it was submitted, was said to have been sent by mail “to an address in Australia”. The argument, therefore, is that the letter of notification incorrectly stated the basis on which the “seven working days” provision applies, in that it only applies where the letter was said to have been sent to the last address for service or the last residential or business address provided, whereas it was stated that it was sent to an address in Australia.
Mr Killalea’s submission was that in that circumstance the letter, if sent to an incorrect address, notwithstanding to an incorrect address in Australia, would not meet the requirements of s.494B(4)(a) and (c). Therefore, the letter of notification does not comply with s.66(2)(d)(ii).
The short answer to the applicant’s complaint is that it fails for essentially the same reason as issue one. That is, that s.494B has no relevance to s.66. I therefore do not agree that the delegate’s letter does not comply with s.66(2)(d)(ii) in this regard. The letter clearly states the time within which the application for review may be made.
In any event, as Mr Baird submitted, the language used by the delegate is consistent with what is relevantly set out in s.494C(4). That part of the delegate’s letter relied on by the applicants now is clearly directed to advising the applicants as to when they are deemed to have received the letter of notification from the Minister. This complaint also does not succeed.
Conclusion
The applicants, with the benefit of Counsel, have put one ground before the Court, although expressed as containing two issues that are said to reveal error on the part of the Tribunal in determining that it did not have jurisdiction to hear the application made to it out of time as derived from its finding that the contents of the letter notifying the applicants of the delegate’s decision complied with the requirements of s.66(2) of the Act.
I cannot see error as asserted by the applicant. This application, therefore, is dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 28 May 2009
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