SZNOZ v Minister for Immigration and Anor (No.2)

[2009] FMCA 929

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNOZ v MINISTER FOR IMMIGRATION & ANOR (No.2) [2009] FMCA 929

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the delegate notified the applicant of its decision in accordance with the relevant legislative scheme in 1993 – whether the applicant was deemed to have received notification even if the contrary were proved.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 115; 411(1)(a); 412(1)(b); 474; pt.8 div.2
Migration Regulations 1994 (Cth), reg.35, 173; 173(2)

Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172
Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657

Applicant: SZNOZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1138 of 2009

Judgment of: Emmett FM

Hearing dates: 10 September 2009 & 16 September 2009

Date of Last Submission: 21 September 2009

Delivered at: Sydney

Delivered on: 23 September 2009

REPRESENTATION

In person with Bengali interpreter

Counsel for the Respondent: Ms L. Clegg

Solicitors for the Respondent: Ms B. Rayment, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1138 of 2009

SZNOZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 22 April 2009 and handed down the same day.

2. The applicant claims to be a citizen of Bangladesh and of Muslim faith and a member of the Awami League (“the Applicant”).

3. The Applicant arrived in Australia on 24 January 1989 having departed legally from Dhaka on a passport issued in his own name and a visitor’s visa.

4. On 7 February 1990, the Applicant lodged an application for a protection visa with the then Department of Immigration, Local Government and Ethnic Affairs (“the Department”) under the Act.

5. On 28 October 1991, a delegate of the First Respondent (“the Delegate”) wrote to the Applicant advising him that his application for a protection visa had been refused.

6. On 4 June 1993, the Applicant lodged a second application for a protection visa with the Department. On 13 July 1993, an officer of the Department wrote to the Applicant informing him that his application for a protection visa received on 4 June 1993 was taken to be an application for review of the decision to refuse his application lodged on 7 February 1990 and was outside the time limit for review. The Applicant was informed that a decision had been made not to exercise discretion to depart from policy in his case.

7. On 28 July 2008, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal. On 21 October 2008, the Refugee Review Tribunal affirmed decision of the Delegate not to grant a protection visa.

8. On 4 March 2009, the Applicant lodged a second application for review of the Delegate’s decision by the Refugee Review Tribunal.

9. On 22 April 2009, the Refugee Review Tribunal, in considering the application filed on 4 March 2009, affirmed decision of the Delegate not to grant a protection visa (“the Tribunal”). This is the decision currently under judicial review.

10. On 11 May 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Australia has protection obligations to a refugee on Australian territory.

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

1. The Applicant’s claims and the Tribunal’s decision are accurately summarised in the written submissions prepared by counsel for the First Respondent, Ms Clegg, as follows:

   “13. In a statement attached to his application for a protection visa the applicant expressly disavowed reliance on a political or other Convention ground. He frankly revealed that he sought recognition as a refugee on economic grounds.  The applicant described his and his family’s existence in Bangladesh after the floods of 1987 as a “hand-to-mouth” existence, and stated that in Bangladesh he faced a “situation of profound and totally unchallengeable poverty”.  To a limited extent the applicant posited a link between the floods of 1987, which he attributed to man-made degradation of the environment, and an unidentified “political situation”.  The essence of his complaint, however, was that his desperate situation was “just as compelling as if I was facing persecution or detention”.[1]

   [1] CB 33 - 39.

   14. However, the applicant also claimed in a separate document signed and dated 2 February 1990 (and also enclosed with his application for a protection visa) to have travelled to Australia as a member and representative of the Awami League, to have been involved in anti-Government political activity in Bangladesh, and to fear harm in Bangladesh from the Government.[2]

   [2] CB 41.

   The Tribunal’s decision

   15. The Tribunal considered whether a valid application for review had been made pursuant to s 412 of the Act.

   16. The Tribunal found:

   i)the decision in relation to which review was sought had been made on 28 October 1991;

   ii)the application for review related to a decision made prior to 1 September 1994 being a decision that a non-citizen is not a refugee and therefore s 411(1)(a) of the Act applied;

   iii)section 412(1)(b) of the Act applied so as to require that an application for review be given to the Tribunal within a period prescribed by the Regulations being a period not later than 28 days after the notification of the decision;[3]

   iv)the applicant had been properly notified of the delegate’s decision;[4]

   v)the prescribed period for the making of any application for review ended on 2 December 1991;[5] and

   vi)the Tribunal received the application for review on 4 March 2009, well after the expiration of the prescribed period.

   [3] CB 128, [11].

   [4] CB 129, [20].

   [5] CB 129, [20].

   17. The Tribunal found that the application for review was not validly made…”

2. Accordingly, the Tribunal found that it did not have jurisdiction to review the decision.

The proceeding before this Court

1. The Applicant was unrepresented before this Court, although had the assistance of a Bengali interpreter. 

2. On 15 June 2009, the Applicant attended a directions hearing before me and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. On that occasion it was explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a legal mistake going to the jurisdiction of the Tribunal.

3. At the directions hearing, I referred the Applicant to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice. I also provided to the Applicant, headed in his own language, a contact list of providers of legal assistance and interpreting services.

4. At the commencement of the hearing on 10 September 2009, the Applicant confirmed that he relied on the grounds contained in an amended application filed on 23 July 2009. The amended application is a mixture of claims, assertions of error and submissions. The grounds of the amended application are not expressed in a helpful or clear manner. However, it appears that at the heart of the Applicant’s complaint is the Applicant’s assertion that the Tribunal should not have found that the Applicant was notified of the Delegate’s decision in circumstances where the Applicant asserts that he did not receive any notification. The Applicant filed written submissions in support of his application essentially making the same complaint.

5. The Applicant does not assert that he was not aware of the outcome of his protection visa application. Indeed, in an application for refugee status in Australia signed by the Applicant and dated 31 May 1993 In answer to the question “Have you ever applied for refugee status in any other country?” the Applicant ticked the box “Yes”. In answer to “When?” he stated December 1989. In answer to “in what country?” the Applicant answered “Australia”. In answer to the question “What was the outcome of your application?” the Applicant stated “rejected”. Further, the Applicant attached to his written submissions a document with a chronology of his immigration history. A copy of that document is annexed and marked “A”. That document shows that various applications made by the Applicant over the years were unsuccessful, including that the Applicant had several requests for Ministerial intervention refused. The Applicant’s document states that he “became unlawful” on 6 August 1997

6. The Applicant was invited by the Court to say whatever he wished in support of the grounds of his application and in support of his application generally. However, the Applicant made no submission other than to reiterate that he had not received notification of the Delegate’s decision.

7. Counsel for the First Respondent, Ms Clegg, submitted that the Applicant was notified in accordance with the legislative scheme at the time and was deemed to have been properly notified of the Delegate’s decision some time around 2 December 1991. Ms Clegg conceded that the Tribunal’s decision had referred to the incorrect regulation in the making of its decision. However, Ms Clegg submitted that such an error was not a jurisdictional error and that the correct regulation would have delivered exactly the same result. For that reason, counsel for the First Respondent submitted that, even if the Tribunal’s decision is affected by an error, the Court ought to exercise its discretion to refuse relief on the basis that there would be no utility in remitting the matter to the Refugee Review Tribunal.

8. The Applicant filed no evidence in support of his application or to explain his delay in seeking review of the Delegate’s decision. The Applicant sought leave of the Court to give oral evidence to explain his delay. That application was objected to by the First Respondent on the basis of the lack of utility in remitting the matter to the Tribunal, irrespective of any explanation that the Applicant may have for his delay.

9. The Court rejected the Applicant’s application to give oral evidence in extempore reasons given at the hearing. Those reasons were as follows:

   “1. The applicant seeks leave to give evidence orally in support of his application to this Court for judicial review of a decision of the Refugee Review Tribunal, dated 22 April 2009.  The Tribunal’s decision relates to the review of a decision of a delegate of the Minister of the relevant department in 1991. The reasons for refusing the applicant’s application for a protection visa were attached to a letter from an officer of the department, dated 11 September 1991, refusing the applicant’s application for a protection visa.

   2. The Tribunal determined that it had no jurisdiction to consider the applicant’s application for review on the basis that the application for review, filed on 4 March 2009, in respect of the 1991 delegate’s decision was filed well outside of the statutory mandatory time period for the lodging of an application for review of a delegate’s decision.

   3. The first respondent opposes leave on the basis that there would be no utility in granting leave. The first respondent tendered a bundle of relevant documents identified as the court book filed on 17 June 2009. Those documents, inter alia, disclose that, on 28 October 1991, a copy of the delegate’s decision was sent to the applicant at the address provided by the applicant as his residential address. A copy was also sent to the applicant’s migration agent.

   4. In accordance with the relevant regulation 35 at the time, where a document is served on a person by post in accordance with regulation 173, service is taken to have been effected on the expiry of five working days after the date of posting.

   5. Regulation 35 stated that the Minister must give an applicant written notice of a decision in respect of a visa application by posting the notice to the latest address for service provided by the applicant in relation to the application, or by posting the notice to the residential address provided by the applicant in the application.

   6. Regulation 35(2) stated that, where notice of a decision is served on the applicant under sub-regulation (1), service is to be taken to be effected as if the notice was a document to which regulation 173 applies.

   7. The letter notifying the applicant dated 28 October 1991 was sent to the only address provided by the applicant on his protection visa application.

   8. The bundle of relevant documents also discloses a copy of the letter from the department, dated 28 October 1991, date-stamped by the Department “Received 17 December 1991”.  Further, the first respondent tendered a three page document from the department’s file marked Exhibit 2R.  That document is headed “Personal Particulars – Finalised DORS Application”.  The particulars record the last residential address of the applicant, that being the same address to which the notification letter was sent, and under a section of that document headed “Comments”, there is a handwritten note:

   “Rejection letters for DORS “Returned to Sender”, 17.12.91.  No recent forwarding address.”

   9. Counsel for the first respondent submits that, in the circumstances, the overwhelming inference is that the letter notifying the applicant of the delegate’s decision was sent to the applicant in accordance with the relevant statutory scheme for notification at the time.

   10. On 23 July 2009, the applicant filed an affidavit, affirmed 23 July 2009, annexing six documents that were irrelevant to the determination that the Court must make.  That affidavit was objected to by the first respondent and was rejected.

   11. The applicant filed no other evidence in support of his application.  It is for that reason that the applicant now seeks the leave of the Court to give oral evidence in support of his application relating to his conduct since 1991.

   12. However, in circumstances where the evidence before the Court leads to the plain inference that the applicant was notified in accordance with the statutory regime at the time, it is my view that there is no utility in granting leave to adduce further evidence explaining his conduct in the past 18 years.  It would appear that the Tribunal had no jurisdiction to entertain the applicant’s review because the application for review was filed outside the mandatory statutory time limits.  Accordingly, any explanation that the applicant may give about his conduct for the last 18 years could not address or overcome that hurdle. 

   13. In any event, the applicant has had an opportunity to file evidence.  The applicant attended a directions hearing before me on 15 June 2009, at which time the applicant was directed to file and serve, by way of affidavit, any additional evidence to be relied upon by 27 July 2009.  Further, the applicant participated in the Court’s legal advice scheme and received advice in accordance with that scheme on 25 June 2009.  At the directions hearing before me, the applicant was provided, in documents written in his own language, with the contact details of legal services providers and the contact details of translation and interpreting services.

   14. In the circumstances, the applicant’s application for leave to give oral evidence is refused.”

10. In 1991, s.115 of the Act provided that regulations may be made, inter alia, “setting out the times at which, or the periods within which, things may be done, or must be done, for the purposes of, or in connection with, the review of decisions under those regulations.”

11. At the relevant time, reg.35 stated relevantly as follows:

    “(1) Where the Minister refuses to grant a visa…the Minister must give the applicant written notice of that decision:

    (a)by posting the notice to the latest address for service provided by the applicant in relation to the application; or

    (b)by posting the notice to the residential address provided by the applicant in the application; or

    …

    (2) Where notice of decision is served on the applicant under subregulation (1), service is to be taken to be effected as if the notice was a document to which subregulation 173(1) or (2) applies.”

12. Regulation 173 stated relevantly as follows:

    “(2) where a document is served on a person in accordance with this Division by post, service is to be taken to be effected:

    (a)if the service is within Australia – on the expiry of 5 working days after the day of posting; or

    (b)if the service is outside Australia – on the expiry of 21 days after the day of posting.”

13. The bundle of relevant documents discloses that the letter sent by the Delegate to the Applicant, dated 28 October 1991, notifying him of the Delegate’s decision was sent to the only residential address provided by the Applicant on his application for a protection visa. That letter was copied to Adrian Joel and Co. I note there is nothing in the bundle of relevant documents to make clear at what point in time Adrian Joel and Co became the Applicant’s adviser. Certainly, the Applicant’s protection visa application did not make mention of an adviser.

14. Regulation 173(2) said that the Applicant was taken to have received the notice 5 working days after the date on which the letter was posted. As referred to above in the ex tempore reasons, the notification letter dated 28 October 1991 addressed to the Applicant was received back by the Department on 17 December 1991. Accordingly, I am satisfied that the letter was sent to the Applicant some time between 28 October 1991 and 17 December 1991.

15. Section 412(1)(b) of the Act requires that an application for review must be given to the Refugee Review Tribunal not later than 28 days after the notification of the Delegate’s decision. As stated above, the Applicant filed his first application for review by the Refugee Review Tribunal on 28 July 2008. That application was rejected on 21 October 2008 on the basis that the Refugee Review Tribunal found that the Applicant had been properly notified of the Delegate’s decision and that the Application for review was received by the Tribunal outside the mandatory time limit. Although I raised with the First Respondent whether there was any issue that arose by reason of the Refugee Review Tribunal’s earlier decision, the First Respondent did not seek to rely on the possibility that the Tribunal may have been functus in light of that decision. The Applicant then lodged a further review application on 22 April 2009, that decision being the subject of the proceeding before this Court. Plainly, the Applicant’s delay in lodging any application for review by the Refugee Review Tribunal was many, many years after a copy of the Delegate’s decision was sent to the Applicant on 28 October 1991.

1. I accept the submissions from counsel for the First Respondent that the regulations had the effect of deeming receipt of the notification document, irrespective of whether the contrary is proved or not.

2. In Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [14], the Full Court of the Federal Court of Australia considered the effect of s.494C of the Act. Section 494C uses the language that an applicant is “taken to have received the document” 7 working days after the date of the document. Regulation 173 states that “service is taken to be effected” on the expiry of 5 working days after posting. To my mind the language of reg.173 is not dissimilar to that of s.494C of the Act. The Full Court followed Spender J in Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657 where His Honour stated as follows:

   “The person is “taken to have received the document”, in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only “until the contrary is proved”.” (Emphasis added)

3. In my view, applying the reasoning of Spender J in Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657, reg.173, read in conjunction with reg.35 and s.115 of the Act, also manifests an intention that an applicant is taken to have received a document on the expiry of 5 days after the day of posting “without qualification”. Further, in my view, there is nothing to indicate that the effect of reg.173 “is to be read as if there was a proviso that the person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only “until the contrary is proved”.”

4. In the circumstances, the Applicant was taken to be notified in accordance with the legislative scheme at the time. Time expired many, many years ago within which the Applicant was able to lodge an application for review of the Delegate’s decision to refuse the Applicant a protection visa.

5. At the conclusion of the hearing on 16 September 2009, the Applicant was given leave to file and serve any further submissions in support of his application after he was provided with copies of all the relevant legislation. Whilst the Applicant filed submissions, they really do no more than restate the Applicant’s assertion that he did not receive the notification letter. They do not affect the legal position that the Delegate notified the Applicant in accordance with the relevant law applicable at that time.

6. Accordingly, the Tribunal’s decision that it has no jurisdiction to consider the Applicant’s review application is correct.

7. The proceeding before this Court commenced by way of application filed on 11 May 2009 should be dismissed with costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  23 September 2009