SZNYK v Minister for Immigration
[2010] FMCA 248
•19 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNYK v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 248 |
| MIGRATION – Review of the Refugee Review Tribunal decision – Tribunal found it did not have jurisdiction to review delegate decision – application filed out of time – no reviewable error – review application dismissed. The Applicant in these proceedings is not to be identified pursuant to s.91X Migration Act 1958 (Cth) and has been given the pseudonym “SZNYK”. |
| Migration Act 1958 (Cth), ss.66, 412, 414, 476, 494 Migration Regulations 1994 (Cth), regs.4.31,16 |
| Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324 Murphy v Minister for Immigration and Multicultural Affairs & Indigenous Affairs [2004] FCA 657 Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 353 Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 281 Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 |
| Applicant: | SZNYK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2340 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 6 April 2010 |
| Delivered at: | Sydney |
| Delivery date: | 19 April 2010 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Fijian interpreter. |
| Counsel for the Respondents: | Ms K Hooper (Solicitor) |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application filed on 24 September 2009 is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2340 of 2009
| SZNYK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 24 September 2009 pursuant to s.476(1) of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 August 2009 which held that it had no jurisdiction to review the decision of the delegate of the Minister for Immigration & Citizenship because the application had been filed out of time. The applicant is a self represented litigant and had the assistance of an interpreter. I believe it is in both parties interest to know with some certainty the future progress of this matter. Consequently, I made orders at the completion of the hearing and indicated I would publish my reasons for those orders.
Background
The female Applicant is a Fijian citizen and is the eldest of six children, being four brothers and a recently deceased sister. The Applicant was widowed in 1984 and had one daughter who remains in Fiji. One of the Applicant’s younger brothers was gaoled in Naboro Prison in Fiji in 1999 on a criminal offence relating to an assault by him on his business partner. The Applicant assisted her brother’s wife to look after their seven children and visited him on a fortnightly basis while he was in prison. In July 2000 the gaoled brother was involved in a prison led takeover of Naboro Prison and he escaped with several other prisoners with the intention of joining forces with George Spate who led the Coup at that time. The escapees, including the Applicant’s brother were captured and returned to prison. This brother was to have been released from prison in 2000 after serving out his sentence, however his incarceration was extended as a result of his escape and he was not released until 2003.
Several months after the prison break, the Applicant claims she was questioned by a police constable who came to her home and accused her of hiding information about her brother. The Applicant was questioned by the police on two or three subsequent occasions by different police constables about the same matter and each time she denied any knowledge of the prison escape. In 2003 her brother told the Applicant that she should go and live with her younger sister in Australia for her own protection. The Applicant travelled to Australia in June 2003 and has not returned to Fiji. The Applicant feels she cannot return because she will not be safe and women are being treated very differently in Fiji since the subsequent coup. The Applicant fears that if she returns she will immediately be taken to a military camp and will face military discipline. The Applicant claims she cannot cope with such difficulties as she is an older women and a widow with no one to protect her.
The Applicant was issued with a Fijian passport on 10 March 2003 which remains valid until 2013. The Applicant subsequently lodged an application for a Tourist Visa, sub-class TR676 on 23 May 2003 and this was granted to the Applicant on that date. The Applicant travelled from Fiji to Australia arriving on 1 June 2003. The Applicant’s Tourist visa expired on 1 September 2003. The Applicant did not depart Australia and became unlawful from this date until the 18 February 2008 when she was granted a Bridging E (BVE) visa which was extended on a number of occasions.
The Applicant lodged an application for a Protection (Class XA) on 18 March 2008. The Applicant attended an interview with a delegate of the Minister on 9 May 2008 in relation to that application. The delegate decided to refuse to grant the visa on 13 May 2008 and notified the Applicant of this decision and her review rights by letter which was dated and posted on 13 May 2008. The Applicant applied to the Tribunal on 20 June 2008 for a review of the delegate’s decision. As the application for review was received outside the mandatory time limit, the Tribunal decided on 8 August 2008 that the application for review was not a valid application and the Tribunal had no jurisdiction in this matter.
On 6 July 2009 the Applicant again applied to the Tribunal for review of the delegate’s decision. The Tribunal formed the preliminary view that it did not have jurisdiction because the application for review was received outside of the prescribed time limit. The Tribunal wrote to the Applicant on 15 July 2009 providing submissions on this issue. The Tribunal reviewed the submissions and referred the matter on 13 August 2009 and issued a written judgment No.0905156 by Tribunal member Patricia Leehy dated 20 August 2009. It is this decision that is subject of this judicial review.
Tribunal’s ‘Findings and Reasons’
In the decision record the Tribunal member sets out the circumstances in which the decision of the delegate of the Minister was provided to the Applicant (CB 89-90).
17. The material before the Tribunal indicates, and the Tribunal finds, that the Applicant was not in immigration detention when notified of the decision.
18. 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).
19. The Tribunal is satisfied that the contents of the delegate’s decision notice complied with the requirements of s.66(2).
20. Converga, the Department’s mail and distribution section has provided information which confirms that the decision notification was dispatched by prepaid registered post on 13 May 2008, within 3 working days of the date of the notice (RP40246347). The material before the Tribunal indicates that the Applicant 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 13 May 2008, was sent by prepaid post on 13 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 purposes of receiving documents. The letter was returned to the Department unclaimed on 19 June 2008.
21. 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 Applicant is taken to have received the notice on 22 May 2008, being 7 working days after the date of the notice. This is so even though the notice was returned unclaimed.
The Tribunal notes that a representative of the Applicant provided written submissions on 6 July 2009 and 7 August 2009 which raises the dispute of the timing of the forwarding of the notification letter and then makes the following findings:
25. The Tribunal has considered these submissions but does not accept that they provide any basis for accepting the review application lodged on 6 July 2009. The Tribunal has no discretion to accept an application that is lodged outside the prescribed timeframe and there is no provision for extension of time in which to lodge an application for review.
26. The Tribunal has considered the submission that the notification was “not mailed until 19th of the month”. However the Tribunal does not accept that the letter was mailed on 19 May 2008. Converga has provided evidence from their registered mail records which confirm that the letter was dispatched on 13 May 2008. The stamp on the unclaimed envelope which the representative claims to show the date “19 May 2008” is distorted and unclear and it appears to show the date 13 May 2008. Furthermore, even if Australia Post did not process the mail item until 19 May 2008, this is irrelevant as the mail item was correctly dispatched on 13 May 2008.
27. The Tribunal finds that the Applicant was properly notified of the delegate’s decision and is taken to have been notified on 22 May 2008. Therefore, the prescribed period of 28 days within which the application for review could be lodged ended on 19 June 2008.
28. The application for review was not received by the Tribunal until 6 July 2009, after the prescribed period had expired.
29. 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.
Consideration
The Applicant filed an application in this Court on 24 September 2009 applying for an order that the Respondent’s show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of Act in respect of the migration decision referred to above. The application is supported by two unparticularised grounds which state:
1. Tribunal used evidence not put to Applicant.
2. Tribunal made decision on facts not confirmed.
The Applicant appeared at the first court date directions hearing on 26 November 2009 at which time she indicated that she wished to participate in the Court sponsored legal advice scheme. The Applicant was subsequently allocated a panel member who held a conference with the Applicant and later provided written advice. At the first court date directions hearing, the Applicant was granted leave to file an amended application together with any supporting affidavit material however the Applicant has not taken the advantage of this leave nor has she supplied any written submissions prior to the hearing. The Applicant made brief oral submissions via a Fijian – English interpreter. The Applicant indicated to the Court that due to the sudden death of her younger sister, her application for a Protection Visa and the subsequent review process had been thrown into chaos as she did not have anyone to assist or guide her in these tasks.
She had indicated she had placed these details in a letter to the Minister requesting assistance on humanitarian ground, to date she had not received any reply. She reiterated that she did not wish to return to Fiji because she feared further interrogation in respect of her association with her younger brother and his escape from prison. She also indicated that she did not wish to place any further burden on the family members based in Fiji. Neither the grounds of review nor the oral submissions raised by the Applicant make any reference to the issue before the Court in respect of the Tribunal’s decision that it did not have jurisdiction in this matter.
The relevant legislation applicable in the circumstances are:
s.66(1)
(1) 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.
s.66(2)
(2) Notification of a decision to refuse an application for a visa must:
(a) if the grant of the visa was refused because the Applicant did not satisfy a criterion for the visa--specify that criterion; and
(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa--specify that provision; and
(c) unless subsection (3) applies to the application--give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d) if the Applicant has a right to have the decision reviewed under Part 5 or 7 or section 500--state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made.
reg. 16(3)
The Minister must notify the Applicant of a decision to refuse to grant a visa by one of the methods specified in s.494B of the Act.
s.494B(4)
(4) Another method consists of the Minister dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; 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; or
(iii) if the recipient is a minor--the last address for a carer of the minor that is known by the Minister.
The Applicant’s visa application requests that correspondence be sent to her personally (CB 9) and identified the Applicant’s current residential address in Australia in Lewisham (CB 13). The Applicant indicated that her postal address in Australia was the same as her residential address (CB 13). The delegate’s decision notification letter was sent to the Applicant at her Lewisham address (CB 53). The letter was sent by registered mail and was dated 13 May 2008. The notification letter and decision record were marked “return to sender” and received by the department on 19 June 2008.
The deemed receipt provision operates without qualification: Murphy v Minister for Immigration and Multicultural Affairs & Indigenous Affairs [2004] FCA 657 per Spender J at [69] and Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 per Spender, Kiefel, and Dowsett JJ at [13].
[13] … counsel for the appellant submitted only that given the appellant’s claim that he had not received the notification until 1 September, the deeming provision contained in s 494C did not operate. That argument must fail. Subsection 494C(4) does not purport to create a rebuttable presumption of fact. It provides that in certain circumstances, a person is to be ‘taken to have received the document ...’. Nothing in the section suggests that this is merely a rebuttable presumption. In Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377; (2000) 98 FCR 77 the Full Court considered a similar, but not identical provision, then found in s 53 of the MigrationAct, but now repealed. It provided that in certain circumstances, an Applicant was to be taken to have received a notification ‘even if it was not received’. At [17], O’Connor and Mansfield JJ observed:
‘... the statutory provisions operated to deem notification of the decision of the delegate of the Minister, notwithstanding that the Applicant may not have received actual notification of the relevant decision until some later time than that deemed by the Act and the Regulations or at all.’
The notification in issue has complied with the specific requirements set out in s.66(2) of the Act.
The legislation setting out the requirements in respect of an application for review of a decision for a Protection Visa is as follows:
s.412
(1) An application for review of an RRT‑reviewable decision must:
(a) be made in the approved form; and
(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; and
(c) be accompanied by the prescribed fee (if any).
(2) An application for review may only be made by the non‑citizen who is the subject of the primary decision.
(3) An application for review may only be made by a non‑citizen who is physically present in the migration zone when the application for review is made.
(4) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of RRT‑reviewable decisions (which may be decisions that relate to non‑citizens in a specified place).
reg. 4.31(2):
(2) A period mentioned in subregulation (1) commences on the day on which the Applicant is notified of the decision to which the application relates, and ends at the end of:
(a) in the case of an application given to the Tribunal by or for an Applicant in immigration detention on that day -- 7 working days (beginning with the first working day that occurs on or after that day); or
(b) in any other case -- 28 days.
Note If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
Accordingly, the last day on which the Applicant could have applied for a merits review by the Tribunal was 19 June 2008. The application for review to the Tribunal that is the subject of this judicial review was lodged by the Applicant on 6 July 2009 (CB 69). The Tribunal has no jurisdiction to review an application made out of time. Sections 412 and 414 of the Act clearly stipulate that the making of an application within the prescribed time is an essential preliminary to the exercise of the Tribunal’s jurisdiction: Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324 per Heerey J at [31], Finklestein J at [34] and Dowsett J at [55]. Neither the Tribunal nor this Court in reviewing the Tribunal decision has the discretion to extend time even though such a result may appear to be harsh or unfair: Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 281 per Hartnett FM at [15]; Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 353 per Wilcox J at [8] – [9].
Conclusion
Although the Applicant is a self-represented litigant, she has received assistance from a legally qualified panel advisor in reviewing her case. It was apparent at the Court hearing that the Applicant did not comprehend the issues ventilated and the only submissions made by her included an apology and admission of the late filing. The Applicant also requested the consideration of her application on humanitarian grounds. It was explained to the Applicant that this was not the purpose of this hearing and that the request was not within the powers of this Court.
Ms Hooper assisted the Court in written and oral submissions in respect to the question of jurisdiction and the issues raised by the Applicant orally before the Court. On a fair reading of the Court book and the Tribunal decision, it is not apparent from the face of those documents that any jurisdictional error is apparent. Consequently, the application should be dismissed with costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 19 April 2010
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