SZOAV v Minister for Immigration

[2010] FMCA 128

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOAV v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 128

MIGRATION – Where applicant filed application for review out of time.

Migration Act 1958, ss.66, 412, 424, 424A, 425, 494

SZDOG v Minister for Immigration [2004] FMCA 972

Applicant: SZOAV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2862 of 2009

Judgment of: Raphael FM

Hearing date: 18 February 2010

Date of Last Submission: 18 February 2010

Delivered at: Sydney

Delivered on: 18 February 2010

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Clayton Utz

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 2862 of 2009

SZOAV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who entered Australia on 3 December 2000.  She lodged an application for a protection visa on 2 October 2008.  On 3 November 2008 she was invited by the department to attend an interview on 21 November.  The invitation was sent to her by registered post at the address that she had given in her PVA.  There is no evidence from the court book that this letter was not received but the delegate reports that the applicant did not appear.  The delegate’s decision was dated 6 December 2008.  A letter enclosing it was sent to the applicant by registered post on 6 December.  There was a registered post sticker upon the document.  It too was sent to the address given as her residential address in the PVA.  On 31 December 2008 there was received at the department the change of address or passport detail under form 929.  Although that document was received on 31 December it is dated 19th.  It provided a new address for the applicant.

2. On 1 September 2009 the applicant applied for review of the delegate’s decision from the Refugee Review Tribunal.  On 15 September 2009 the Tribunal wrote to the applicant stating:

   “I am of the view that your application is not a valid application, as it was not lodged within the relevant time limit.  The time limit is 28 days from the day upon which you are taken to have been notified of the primary decision.  The primary decision was posted to you on 8 December 2008, and on the basis that 17 December 2008 was the date upon which you are taken to have been notified, the last date for lodging the application for review was 14 January 2009.  As the application was not received until 1 September 2009, it appears to be out of time.  However, this is a matter which must be determined by a Tribunal member. 

   If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing by 10 October 2009.”

3. The applicant did not respond to this letter which was sent to the address that she had given on her application form as her residential address in Australia.  No other address for service was given on that form.

4. On 23 October 2009 the Tribunal determined that it was unable to deal with the application because it was out of time.  The Tribunal acknowledged that the original decision letter from the delegate had been returned to the department on or about 12 January 2009 and accepts that it was not received by the applicant.

5. I will say straight away, that to my mind given the notification by the applicant of the new address for service only a few days after the decision letter was purported to have been received, fairness would have obliged the department to send out a new decision letter to the applicant at the new address, even if, wishing to be a stickler for detail, the department told the applicant that the last date upon which she could seek review of the decision was the last date calculated in accordance with the sending of the letter on 8 December.  Of course, that is an expression of personal opinion and has no binding force at law.

6. Whilst there is no pictorial evidence of the type that quite commonly finds its way into court books the Tribunal has accepted as fact the following:

   ·That the department’s decision was made on 6 December 2008.

   ·That the decision was sent by pre-paid post on 8 December 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.

   ·That decision was returned to the department unclaimed on 12 December 2009 [sic].

   ·The applicant submitted a change of address form to the department on 31 December 2008 after the decision notification was sent.

7. The Tribunal deduced from the above that the department’s decision was despatched within three working days of the date of the letter to the correct address in accordance with s.66(1) and s.494B(4) of the Migration Act 1958 (the “Act”). The Tribunal found that the applicant was properly notified of the delegate’s decision and by virtue of s.494C(4)(a) she was deemed to have been notified on 16 December 2008. The Tribunal found that the applicant failed to lodge her protection visa application within the prescribed period of 28 days from the date of notification of the decision. Under s.412(1)(b) an application must be given to the Tribunal within the period prescribed being a period ending not later than 28 days after the notification of a decision. A Tribunal has no power to review a decision that is not the subject of a valid application and an application that is out of time is not a valid application. These matters are dealt with in the Tribunal’s findings and reasons at [CB 54 - 55]. I am satisfied that in its exposition of the facts and law the Tribunal was correct.

8. On 23 November 2009 the applicant filed an application for review of the Tribunal’s decision in this court.  There are two grounds of review:

   “1.The Tribunal failed to comply with ss.425 and 426A of the Act that the decision of the second respondent is likely to be affected by jurisdictional error by way of a breach of s.425 of the Migration Act 1958 (Cth) as a consequence of the Tribunal’s failure to invite me for hearing.”

9. It is correct that the applicant was not invited to attend a hearing but there is a valid reason for this. Under s.425(1) of the Act the Tribunal is required to invite the applicant to appear before it, to give evidence and present arguments, but that obligation does not arise in one of the circumstances set out in subs.425(2). Sections 425(2)(c) and 425(3) provide that if either of ss.424C(1) or (2) applies to the applicant then the Tribunal is not required to invite the applicant to attend a hearing. Section 424C(2) did apply to this applicant because she was invited by the Tribunal to make a comment or respond to information under s.424A of the Act. She failed to do so and that allowed the Tribunal to proceed to make a decision without taking any further action to obtain her views on the information.

10. The Tribunal’s ability to make the decision without taking further action is a discretionary one.  In this case the Tribunal acted lawfully in exercising its discretion not to take any further steps; SZDOG v Minister for Immigration [2004] FMCA 972 at [23]. It is to be remembered that this applicant had not attended the meeting with the delegate to which she had been invited and that all the evidence on the Tribunal’s file indicated that, however unfortunate it was that she had not received the delegate’s decision, her application was many months out of time and there was nothing the Tribunal could do about it. A further meeting with the applicant would have had little utility.

11. The second ground of application was that:

    “The Tribunal failed to consider the delegate’s decision notice without complied [sic] with the requirements of s66(2).”

12. Section 66(2) of the Act sets out certain requirements relating to the notification of a decision to refuse an application for a visa. The prescribed method by which the Minister may provide documents to a person is set out in s.494B and the Tribunal did consider whether the provisions of that subsection had been complied with. It made factual findings with which this court cannot disagree.

13. The Tribunal concluded that the delegate’s decision notice complied with the requirements of ss.66(1) and 66(2) and I am unable to see where there may have been a jurisdictional error in the manner in which it came to that decision.

14. I dismiss the application.  I order that the applicant pay the first respondent’s costs assessed in the sum of $3,500.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  24 February 2010