SZNZL v Minister for Immigration
[2009] FMCA 1301
•18 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNZL v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1301 |
| MIGRATION – Review of decision of Refugee Review Tribunal – no adjournment granted – applicant adequately on notice – delegate’s decision properly notified – no requirement that applicant receive notification of decision – no breach of procedural fairness – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.66, 412, 414, 424A, 425, 477, 494B Migration Regulations 1994 (Cth), reg.2.16, 4.31 |
| SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 SZCOZ v Minister for Immigration & Anor [2008] FMCA 1310 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 |
| Applicant: | SZNZL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2568 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 18 December 2009 |
| Date of Last Submission: | 18 December 2009 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2009 |
REPRESENTATION
| The Applicant: | In Person |
| Appearing for the Respondents: | Mr B May |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 23 October 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $2,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2568 of 2009
| SZNZL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
Application for Review
This is an application made on 23 October 2009, under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 September 2009, which found that the Tribunal did not have jurisdiction to review the decision of a delegate of the first respondent to refuse a protection visa to the applicant.
Background
The Minister has put before the Court a bundle of relevant documents (the Court Book: “CB”). The following is relevant to the issue before the Court.
The applicant is a citizen of India who arrived in Australia on
5 July 2008, and applied for a protection visa on 24 March 2009 (CB 1 to CB 29 with annexures).
Claims to Protection
The applicant claimed in that application to be a Christian who married a Hindu girl who then converted to Christianity. Hindu extremists tried to locate him, and threatened staff at his church. The applicant fears he would be attacked by the Hindu extremists were he to return to India.
The Delegate
The Minister’s delegate refused the application, citing doubts about the veracity of the applicant’s claims, and found that the applicant’s main aim for leaving India was for economic reasons. The delegate also found that the applicant could, in any event, seek protection through relocation in India (CB 43). This decision was made on 5 June 2009.
Relevantly, I note that, in his application for a protection visa, the applicant advised that all communications from the Minister’s department should be sent to him at the address provided for this purpose. I note what is relevantly set out at CB 9 in answer to question 19. This reads, with a positive notation made by the applicant, as follows:
“All written communications will be sent to the address for communications that you have provided in this form.”
With reference to CB 13, and question 15, the address given in the form was an address in “Anthony Rolfe Avenue, Gungahlin, ACT”. The form also, relevantly, reveals that the applicant did not agree to the Minister’s department communicating by fax, email or other electronic means (CB 13 at question 17). I note also, relevantly, that, at CB 13 question 18, the applicant advised that his postal address was the same as the residential address.
The evidence before the Court also includes a copy of a file note, made by the delegate, reporting a telephone call from the applicant where he provided his, as was said at that time, current address. An address in “Inglewood Street, Gungahlin, ACT”. This is dated 29 April 2009
(CB 34). I should note that, before the Court today, the applicant confirmed that he had provided that address.
The material before the Court also contains a copy of a letter addressed to the applicant at this second advised address. This being the letter which notified the applicant of the delegate’s decision to refuse the visa (CB 35). Attached was the delegate’s decision record (CB 39 to CB 47, with annexures).
The letter is dated 5 June 2009. The copy in the Court Book bears a copy of a registered post sticker with a unique number appearing on it. I note that the letter also advised the applicant of his rights of review with the Tribunal, and the time limit for the making of any application in this regard. The letter also notified the applicant that he is taken to have received that letter within seven working days of its date.
Reproduced at CB 48 and 49 is a copy of an envelope bearing the applicant’s name and this second advised address, that is, the Inglewood Street address, to which it appears the delegate’s letter had been posted.
A comparison between the unique registered post number appearing on the envelope and the number that appears on the sticker on the face of the letter (CB 49 and CB 35), reveals that they are one and the same number. It is therefore open to the Court to draw an inference that the delegate’s letter was the letter that was returned by the postal service with the notation: “Left Address/Unknown”. This appears to have been returned to the Minister’s department on 15 June 2009, that is, 10 days after the date of the letter.
The material before the Court also reveals that the applicant submitted a “change of address” form to the Minister’s department, which it received on 10 July 2009. This advised of a third, and different, residential address in “Gungahlin, ACT”, as being the applicant’s “new contact” address (CB 50 to CB 51).
The Tribunal
An application for review was subsequently received by the Tribunal on 31 July 2009 (CB 52 to CB 55). I note that the applicant’s residential address in that application was given as the third notified address in Gungahlin, ACT (CB 53).
On the material before the Court, an inference can be drawn that, on 11 August 2009, a letter was sent to the applicant by the Tribunal, again by registered post, notifying that the Tribunal appeared to lack jurisdiction to conduct a review of the delegate’s decision, as the applicant had requested.
What was put to the applicant was that the Tribunal appeared to lack jurisdiction, as the application that he had lodged was filed out of time. It invited the applicant to comment (CB 60). The applicant responded with written submissions dated 2 September 2009. Amongst other things, he “appealed” on compassionate grounds for his application for review to be heard (CB 61).
The Tribunal was ultimately satisfied that the delegate’s decision notice complied with the requirements under s.66(2) of the Act, and that the prescribed period in which to seek review was twenty-eight days, commencing on the date on which the applicant was notified, or was said to have been notified, of the decision of the delegate (s.412(1)(b) and regulation 4.31(2)(b)) ([16] and [17] at CB 65).
The Tribunal also noted that the delegate’s decision was sent by registered post on 5 June 2009 to the last-known residential address of the applicant in Australia, and that this letter was returned to the Department ([18]). The Tribunal also found that the letter was dispatched in accordance with s.66(1) and s.494B(4) of the Act, and as such, the applicant was taken to have received notice on 17 June 2009, that is, seven working days from the date of the notice, even though the notice was returned as not having been delivered ([20] at CB 66). As a result, the period in which the application for review could be lodged ended on 15 July 2009 ([23]). The application for review was received after that date, on 31 July 2009.
The Tribunal reasoned that it had no discretion to accept the application as it had been filed outside of the relevant time period, and that there was no provision for an extension of time ([22]). As such the Tribunal concluded that it did not have jurisdiction to conduct a review (CB 66).
Application to the Court
The application to the Court contains the following grounds:
“1. The Tribunal member had failed to honour his undertaking. The requirement to put information to an applicant is contained in S424A, which relevantly states:
424A applicant must be given certain information
1. Subject to subsection (3), the Tribunal must:
(a) Give to the applicant, in the way that the Tribunal consider appropriate in the circumstances, particulars of any information that the Tribunal consider would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) Ensure, as far as is reasonably practicable, that the applicant understand why it is relevant to the review and
(c) Invite the applicant to comment on it.
It is my case that the Tribunal ignore its undertaking to give me an opportunity to give my evidence; therefore the Tribunal had erred by denying me procedural fairness in respect of that issue.
(2) The applicant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. –
The Tribunal has not considered this aspect and therefore committed factual and legal error.
[Errors in original]
The application to the Court also seeks an extension of time.
Before the Court
The applicant appeared in person. He was assisted by an interpreter in the Punjabi language. Mr B May appeared for the first respondent. Written submissions have been filed on behalf of the Minister.
After I explained the central issue for consideration today, that is, the issue of whether the Tribunal was correct in concluding that it did not have jurisdiction to consider the application made to it, an issue which, in general terms, I had raised with the applicant as being the central issue at the time of the first court date in this matter (18 November 2009), the applicant sought an adjournment of the hearing.
When the applicant first appeared at the first court date in this matter it appeared that he had been assisted in preparing his application to the Court by someone whom he said he understood to be a lawyer. He subsequently told the Court that he consulted this person at a coffee shop in Sydney.
It was brought to the applicant’s attention at the first court date that his application to the Court did not address the critical issue as to whether there was error in the Tribunal’s decision that it did not have jurisdiction to consider his application.
The applicant now seeks further time to consult a “professional” lawyer to assist him in his application.
Application for Adjournment
I refused the applicant’s request for an adjournment. There are two reasons for that. The first reason is that, on any objective basis, the applicant has had a reasonable time, and opportunity, to have consulted a competent lawyer. That time does not necessarily start from the time that an applicant first appears before this Court. That time, in my view, starts to run from the time that an applicant receives the letter from the Tribunal informing them of the Tribunal’s adverse decision.
In these circumstances, it would have been reasonable to expect the applicant to have taken steps to contact a solicitor, or a legal adviser, at least from the beginning of October, noting that notification of the Tribunal’s decision was sent by registered post, it appears, some time around 28 September 2009.
But in any event, even if the period could be said, in effect, to start with the first court date, the applicant was put on notice, by remarks made by the Court to him at that time, that the application he had put before the Court had one fundamental deficiency, at least. That is, that it did not appear to address the one critical and central issue in the applicant’s case. That is, whether the Tribunal had jurisdiction to review the delegate’s decision.
Given the Court’s concern at that time, the applicant was put on notice of the need to ensure that the person whom he said was assisting him at that time had proper legal qualification, or capacity to provide meaningful legal assistance. It must be said, and I accept, that, based on what he had told the Court, the applicant has acted in good faith throughout, and subsequent to, that period. But the applicant’s submission in support of his application for an adjournment today reveals that, despite being put on notice by the Court at the first court date, which was 18 November 2009, the applicant persisted with the person who had originally assisted him. It must be said, he appears to have taken no steps to satisfy himself as to the capacity of that person to provide proper legal advice to him.
I can only agree with Mr May that the applicant has had a reasonable opportunity to seek proper legal advice and, for whatever reason, has not taken that opportunity. Nor has he taken the opportunity to have come back to this Court at some time after the first court date, an opportunity that was provided to him by “order 7” made on that date, to tell the Court of any difficulties that he faced in this regard, and to seek some further time, at an earlier time, than at the beginning of the hearing today. Unfortunately for the applicant, he persisted with meeting with this same person at a coffee shop in Sydney, rather than taking some other active step to obtain proper legal assistance.
The applicant told the Court today that, if he were given a further opportunity, he would seek out a competent or professional lawyer to give him legal advice. There are two elements to that submission that need to be considered. The first is to raise the question as to why the applicant has not taken that step at an earlier time, given his having been put on notice by the Court of the need to obtain proper legal advice at the first court date.
The second goes to the issue of whether, if the applicant were given additional time, there would be any useful purpose in the Court doing so in the interests of the administration of justice. In this regard, on the material that is before the Court and, indeed, based on what the applicant has otherwise told the Court today, even to describe the prospects of success of the applicant’s case as poor would be generous.
In short, for the reasons which I am about to give, I cannot see that any utility, or any useful purpose, can be served by giving the applicant any further time, given what appear to be the relevant circumstances attendant on, and surrounding, the notification of the refusal by the delegate of his application for a protection visa, and the effect that that had on the question of the Tribunal’s jurisdiction to hear an application for review of that decision.
So, in short, I refuse the application for an adjournment today.
The Tribunal’s Jurisdiction
In relation to the issue of the Tribunal’s jurisdiction, I note that the applicant has put no evidence before the Court to challenge what is contained in the Court Book put before the Court by the Minister.
The issue before the Tribunal, in the circumstances which I have outlined above, was whether it had jurisdiction to conduct the review. Section 412(1)(b) of the Act provides that an application for review to the Tribunal must be made within the prescribed period, which ends no later than 28 days after the notification of the decision. Section 66(1) of the Act provides that an applicant for a visa is to be notified of a refusal to grant the visa in the prescribed way.
Regulation 2.16(3) of the Migration Regulations 1994 (Cth) provides relevantly that a decision to refuse the grant of a visa must be notified by one of the methods specified in s.494B of the Act.
In the current case, on the evidence, at least the evidence available to the Court, and I say this because I am referring to the evidence in the Court Book, which requires inferences to be drawn that copies of letters appearing with registered post stickers were actually sent. I note the absence of evidence of any, for example, postal log that may be retained that would provide stronger evidence of actual transmission).
Nonetheless, in all the circumstances I am satisfied that such an inference can be drawn as to the actual sending of the relevant document.
The notification letter was dated 5 June 2009. It was sent on that day by registered post to an address in Gungahlin, ACT. That address was not the address in the application form, but the address subsequently notified by the applicant as his “current” address (CB 34).
The Minister submits that this was the last residential or business address provided by the applicant. That the notification letter was sent in accordance with the requirements of s.494B(4)(c)(ii), because the applicant stated in his application form that his postal address was the same as residential, and that the applicant’s subsequent advice as to his change of address must be taken to have provided his new address for the purpose of receiving documents.
I accept this submission. In particular, I had regard to one of the undertakings provided by the applicant in the making of his application (at CB 10):
“I undertake to inform the Department of Immigration and Citizenship if I intend to change my address for more than 14 days while my application is being considered.”
When the Minister’s submission is read in light of this undertaking, a clear inference can be drawn that the applicant provided his change of address in compliance with his undertaking, and for the purpose, amongst other things, of the Minister’s Department being able to communicate with him.
I did consider, and raised with Mr May, that what is written in the Minister’s pre-prepared application form, at CB 9, could be said to limit the address to which correspondence should be sent to the addressee. Question 19 (CB 9) in the protection visa application form asks the applicant to indicate the address to which written communications about the application should be sent. An advice adjacent to this question states:
“All written communications will be sent to the address for communications that you have provided in this form” [emphasis added]
Mr May referred the Court to the subsequent notification by the applicant of his then “current” address, and reminded the Court that the relevant regulatory requirement required the letter of notification to be sent to the last address, in effect, given to the Minister for the purpose of receiving correspondence.
Taking into account that submission, on reflection, in my view, to impose such a limitation as drawn from the actual words as appearing at CB 9 would, in one real sense, result in a nonsense. It would mean that applicants would continue to have correspondence sent to an address from which they physically had moved, as appears to have been the very circumstance in this case.
The result of the requirement to notify of any change of address, as set out in the applicant’s undertaking to do so, must clearly include the possibility that any subsequent notification was made to enable correspondence to reach the applicant at the appropriate “current” address.
In all, therefore, the notification sent to the latest address notified by the applicant to the Minister’s department, at the time of the sending of the notification means that, in the current case, the letter was sent by one of the methods found in s.494B of the Act, namely s.494B(4)(c)(ii). That is, to the last residential or business address provided by the recipient to the Minister for the purposes of receiving communications about the application. I agree with the Minister’s submission that the terms of the letter complied with the requirements of s.66(2)(a), (c), and (d), including (i)-(iv). The relevant statutory requirements were all met.
In these circumstances, it was, in my view, correct for the Tribunal to find that it did not have jurisdiction. Having found that the notification letter complied with the relevant statutory requirements, including regulatory requirements, the Tribunal’s calculations as to the relevant date by which the application should have been made, was also correct.
The letter was sent, consistent with s.494B(4), from Sydney, being a place in Australia, to an address in Gungahlin, ACT, also being an address in Australia. In these circumstances, the applicant is taken to have received the letter seven working days after the date of the letter, that is, 17 June 2009 (s.494C(4)(a)). The applicant, therefore, had 28 days from that date to make his application. That is, 15 July 2009. By 29 July 2009, when he lodged his application, the applicant was out of time. No error is therefore apparent in the Tribunal’s decision.
For the applicant’s benefit in particular, I emphasise that the fact that he did not actually receive the letter does not alter the situation that I have set out above. The obligation on the Minister, and the officers in his department, is to comply with the statutory and regulatory requirements. These requirements do not require, or do not provide, that the applicant actually receive the notification. What they require is that the delegate’s letter complies with the relevant statutory and regulatory scheme for the communication of notification of the decision to refuse an application for a visa.
Application to the Court for an Extension of Time
In his application to the Court the applicant also applies for an order to extend the time for the making of the application to this Court. But no such extension is required. The Tribunal’s decision was made on 25 September 2009. Section 477(1) of the Act provides that applications to this Court to review the Tribunal’s decision must be made within 35 days of the date of that decision. The application of 23 October 2009 is therefore well within that time.
It is most unfortunate that the applicant appears to have fallen into the hands of a person who, for money, has purported to provide the applicant with legal advice. This is an example, in my view, of the poor quality of that advice. In particular it reveals that whoever drafted the application to the Court for the applicant lacks understanding of some very basic matters. There has been a clear confusion between applying for an extension of time to make the application to the Court, with what in effect is really being sought by the applicant, and that is an extension of time to have made his application to the Tribunal concerning the delegate’s decision.
In spite of what is set out above, I did consider whether the grounds as pleaded may assist the applicant in showing error on the part of the Tribunal.
Ground One
However, in relation to ground one I can only agree with the Minister that, to the extent that the applicant relies on a claimed breach of s.424A of the Act, then this ground is misconceived. Again, whoever drafted this, on the applicant’s behalf, has totally misunderstood, or overlooked, that the threshold issue in the applicant’s case was whether the Tribunal had jurisdiction to review the delegate’s decision. While s.414 of the Act compels the Tribunal to review a valid application made under s.412, the late lodgement of his application to the Tribunal means that the application, pursuant to s.412, is not valid.
Having found that the Minister’s notification of the refusal of the visa complied with all of the relevant legislative and regulatory requirements, and in circumstances where the lodgement of the application was made out of time, the Tribunal therefore was unable to enter into the conduct of the review.
Section 424A, and, for that matter, to the extent that the application complains that he was denied the opportunity to give his evidence, and thus could be said to be some reference to s.425 of the Act, are part of Division 4 of Part 7 of the Act. But, as is very clear, and as submitted by the Minister, this Division does not apply where the Tribunal has no jurisdiction to conduct a review (see SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940).
Notwithstanding this, in my view the Minister is also correct to refer the Court to a consideration of whether there are any common law procedural fairness obligations involved in the circumstances of this case. In this regard, I note that the applicant was invited, in writing, to comment on the significant issue on which the Tribunal’s decision turned. That is, whether the application to it had been made in time, and the effect of this on the Tribunal’s capacity to conduct the review. In this regard see the Tribunal’s letter of 11 August 2009 at CB 60.
The applicant responded in writing by letter dated 2 September 2009 (CB 61). The Tribunal took the applicant’s submissions into account (see [21] and [22] of the decision record). I cannot see error in the Tribunal’s finding that it had no discretion to extend the relevant time for the making of the application once it was satisfied that the Minister’s notification had been properly made. With reference to the applicant’s plea to it, the Tribunal had no discretion, whether on compassionate grounds or otherwise, in the circumstances presented.
While the applicant was not invited to a hearing, as opposed to being given the opportunity to comment in writing, in the circumstances of this case the Tribunal was not compelled to issue any such invitation in addition to the invitation to comment in writing. I respectfully agree with what was said in this regard by the Court in SZCOZ v Minister for Immigration & Anor [2008] FMCA 1310, as referred to in the Minister’s submissions. In the circumstances, common law procedural fairness requires that the applicant be put on notice of the issue relevant to the Tribunal’s decision and, as supported by High Court authority, even as far back as Kioa v West [1985] HCA 81; (1985) 159 CLR 550, such that the applicant should not be taken by surprise.
It is clear in this case that, by writing to the applicant, the Tribunal squarely put the applicant on notice as to the central and critical issue that it was required to consider. It gave the applicant the opportunity to make his comments. In all, therefore, ground one is not made out.
Ground Two
The second ground in the application is also, as the Minister submits, misconceived. The Tribunal was, in the circumstances, under no obligation to consider whether the applicant met the United Nations Convention definition of a refugee. In fact, the Tribunal had no power to do so in the absence of a valid application. This ground also does not succeed.
As I noted earlier, this ground, as pleaded, is another example of the dangers that are faced by applicants, such as the applicant before the Court today, who put their affairs in the hands of persons who, at least on the face of what is before the Court, have little legal expertise or capacity.
The ground, as pleaded, asserts that the applicant has satisfied the four key elements of the UN Refugees Convention definition, as detailed in the Tribunal’s decision at CB 64 and 65. It is quite clear that neither at those pages, nor indeed anywhere else in its decision record, does the Tribunal make mention of the four key elements of the Convention definition. That is quite probably because the law that the Tribunal was concerned with in this case was the law relevant to the issue of notification of the delegate’s decision, and whether the Tribunal had jurisdiction.
This ground, as pleaded, is identical in wording to grounds often seen in this Court. But unfortunately for this applicant, unlike many other applicants on whose behalf this formulaic ground is pleaded, at least in these other cases the ground may be said to be, at least, factually correct in referring to that part of the Tribunal’s decision record in cases where the Tribunal finds that it does have jurisdiction, and sets out in the usual, unexceptional terms, the four key elements of the Convention definition.
Ground two as pleaded therefore also does not reveal error on the part of the Tribunal.
Conclusion
Ultimately, the Tribunal must apply the law. The relevant statutory scheme provided by Parliament, and the relevant regulatory scheme which supports it is, in this instance, quite clear. Once the Tribunal found that the notification of the refusal of the application for a visa met the relevant requirements, and complied with those requirements, and that the application was lodged out of time, the Tribunal could do no other than what it did. That is, to find that it lacked jurisdiction. I cannot see error in the Tribunal’s decision. The application to the Court must, therefore, be dismissed.
Matter of Concern
Given that that applicant was unrepresented before the Court, and given the account that he gave as to why he remained unrepresented before the Court, an account which, I must say, I accept as truthful, and I say this because the applicant has presented as honest, and because I could detect nothing before the Court that would lead me to doubt the truth of what the applicant was submitted, I was particularly concerned about his engagement of a person who appears not to be a lawyer, and to whom the applicant said he has paid money. Although I note, of course, that the applicant was making submissions and not providing evidence to the Court.
I would ask the Minister’s representative, in light of whatever the applicant is prepared to provide, to refer this matter to the relevant people in the Minister’s department for consideration as to whether any possible action can be taken in relation to the person who appears to have provided legal advice for money, in a coffee shop, yet appears not to possess any legal capacity or standing.
It is of great concern to this Court that there are persons in our community who, it appears, hold themselves out to be lawyers, or to have some legal expertise, then take money from people like the applicant, who are clearly in a very vulnerable situation. Then provide them with purported legal advice that, on its face, is of no real assistance. I would be surprised if any “competent” lawyer in New South Wales would not have recognised that the one and only significant threshold issue here was the issue of jurisdiction of the Tribunal. Yet there is nothing in the application about that issue.
In fact, even worse, whoever drafted this application clearly misunderstood that that part of the form, headed “Application for Extension of Time”, is clearly directed to an extension of time to make the application to the Court, not the time to make the application to the Tribunal.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: D Nestor
Date: 20 January 2010
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