SZNFH v Minister for Immigration

[2009] FMCA 781

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNFH v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 781

MIGRATION – Review of RRT decision – where application for review by Tribunal received outside time limit.

Migration Act1958 (Cth) ss.412, 494B, 494C, 494D
Migration Regulations 1994

Xie v Minister for Immigration [2005] FCAFC 172

Applicant: SZNFH

First Respondent:

MINISTER FOR IMMIGRATION &

CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 248 of 2009

Judgment of: Raphael FM

Hearing date: 31 July 2009

Date of Last Submission: 31 July 2009

Delivered at: Sydney

Delivered on: 31 July 2009

REPRESENTATION

For the Applicant: In person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent's costs assessed in the sum of $3,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT

SYDNEY

SYG 248 of 2009

SZNFH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In these proceedings the applicant seeks a review of a decision of the Refugee Review Tribunal refusing to provide review of a decision of the delegate dated 25 October 2008 (posted to the applicant on 27 October 2008) on the grounds that according to the Tribunal the application for review was not received by the Tribunal until 4 December 2008 when, in order to comply with the requirements of s.412 Migration Act1958 (Cth) and regulation 4.31 Migration Regulations 1994, it should have been received on 3 December 2008.

2. The applicant, who is a citizen of China, applied for a protection (Class XA) visa on 29 July 2008.  On 8 September 2008 the applicant filed with the Department a form 956 dealing with the appointment of a migration agent or other authorised recipient. It was therefore necessary for the decision of the delegate to be sent to the authorised recipient.  The decision of the delegate was dated 25 October 2008 and a letter was addressed to both the applicant and to her authorised recipient on that day.  Interestingly, 25 October 2008 is a Saturday.

3. The letters which were sent to the applicant and the authorised recipient were sent by registered post and the registered post tracking number is found on the copy of the letter sent to the authorised recipient at [CB 93]. The respondent produced in evidence and tendered as Exhibit 1 a copy of the envelope in which this document was enclosed which bears the same registered post tracking number and I am prepared to draw the inference that the envelope contained the letter.

4. There is evidence in the green book at [CB 102] that the letter was actually sent on 27 October 2008. In accordance with s.494D(2), a letter sent to the authorised recipient is deemed to be sent to the applicant. In accordance with s.494B(4), a letter that is sent by post within three working days of the date of the document is said by s.494C(4) to have been received by the recipient seven working days following the date on the letter. In this particular case the letter was deemed to have been received on 4 November 2008.

5. Section 412(1)(b) and regulation 4.31 mandate that an application for review of a delegate's decision must be given to the Tribunal within a period of 28 days. Twenty eight days from 4 November 2008 expires on 2 December 2008. The Tribunal was under the impression that the 28 days expired on 3 December 2008 but this is of no consequence; Xie v Minister for Immigration [2005] FCAFC 172 at [9]. The applicant's request for review was not received until 4 December 2008, two days late.

6. The Tribunal has no power to extend the time and therefore its decision that it did not have jurisdiction to entertain the application was correct and was not made as a result of a jurisdictional error.  As harsh as this may seem I have no alternative but to dismiss the application and to order that the applicant pay the respondent's costs which I assess in the sum of $3,500.00.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  14 August 2009