SZOJL v Minister for Immigration
[2010] FMCA 597
•6 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOJL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 597 |
| MIGRATION – Review of Refugee Review Tribunal decision – Tribunal had no jurisdiction as review application lodged out of time – no arguable case for relief. |
| Migration Act 1958, ss.65, 66, 412, 474, 494B, 494C Migration Regulations 1994, reg.2.16, 4.31 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Agar v Hyde (2000) 201 CLR 552 SZOFE v Minister for Immigration & Citizenship [2010] FCAFC 79 SZNOY v Minister for Immigration & Citizenship [2010] FMCA 510 |
| First Applicant: | SZOJL |
| Second Applicant: | SZOJM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 934 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 6 August 2010 |
| Date of Last Submission: | 6 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 6 August 2010 |
REPRESENTATION
| The Applicants appeared in person. |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
Pursuant to rule 44.12 of the Court’s Rules, the application be dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 934 of 2010
| SZOJL |
First Applicant
| SZOJM |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of India who arrived in Australia on
6 June 2009. On 9 July 2009 the first applicant lodged an application for a protection visa; his wife, the second applicant in these proceedings, was included in that application as a member of the family unit. On 27 August 2009 their application for protection visas was refused by a delegate of the first respondent (“Minister”), following which they sought review with the Refugee Review Tribunal (“Tribunal”).The applicants’ application for review of the delegate’s decision was lodged with the Tribunal on 21 January 2010. On 6 April 2010 the Tribunal concluded that it did not have jurisdiction to review the applicants’ application. The applicants have now applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicants’ application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
In his application for a protection visa lodged on 9 July 2009, the first applicant claimed that he was an active member of the Indian National Lok Dal Party. He claimed that, as a result of his involvement in that party, he was targeted by Congress party “thugs” and was forced to leave India in order to avoid further persecution.
The delegate of the Minister refused the applicants’ application for protection visas as he was not satisfied that they were persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The applicants were advised of the delegate’s decision by letter dated
27 August 2009 which was sent by registered post to the postal address provided in their visa application form.
The Tribunal found that because the applicants’ review application had been lodged on 21 January 2010 it had been lodged outside the prescribed time limit and, as such, was not a valid application under the Act. The Tribunal therefore concluded that it did not have jurisdiction to review the applicants’ application.
Proceedings in this Court
The matter is before the Court today for consideration of the applicants’ application that the respondents should show cause why relief should not be granted to them.
At a hearing to determine whether an order to show cause should be made, an order will not be made and, instead, the proceedings will be dismissed pursuant to r.44.12 of the Rules of Court, if the applicants do not have an arguable case against the respondents.
The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).
The grounds of the application commencing these proceedings were pleaded as follows:
1.Unfairness was involved in the failure of the Tribunal to allow me to substantiate my claim of Refugee status and therefore there was a denial of natural justice.
2.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.
3.The applicants 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.
4.The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 6 April 2010 was effected by actual bias constituting judicial error.
In his affidavit filed on 29 April 2010, in support of the application filed that day, the first applicant also stated:
The Tribunal member failed to give me the opportunity to present my argument about my claims, therefore the Tribunal decision on 6 April committed factual and legal error.
The first ground of the application and the first applicant’s affidavit essentially challenged the Tribunal’s conclusion that it did not have jurisdiction to entertain the applicant’s application for review of the delegate’s decision. In order for an application for review to the Tribunal to have been made in time the Act and the Migration Regulations 1994 (“Regulations”) work together to set out what is required. Their combined effect is that an application for review must be lodged with the Tribunal within twenty-eight days after the applicant is taken to have been notified of the decision of the Minister’s delegate on the application for a protection visa.
In reviewing the Tribunal’s decision it is important to understand what the relevant statutory provisions are. Section 66(1) of the Act provides:
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.
That way is prescribed in reg.2.16 and in particular sub-reg.3 which provides that:
The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
Section 494B(4) provides as follows:
(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 …
Section 494C(4) provides when such documents are deemed to have been received, saying:
(4) If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a)if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document …
Section 412(1)(b) provides that an application for review of an RRT reviewable decision must be given to the Tribunal within the period prescribed. For the purposes of s.412(1)(b), reg.4.31 prescribes a period of twenty-eight days commencing on the day after the applicant is notified of the decision to refuse the application for a visa.
The only evidence before the Court today which is relevant to the question of the Tribunal’s jurisdiction is the Court Book, which is Exhibit A, and the affidavit of Katherine Nicole Hooper affirmed
15 June 2010. Page 52 of the Court Book and Annexure B to Ms Hooper’s affidavit show that the Departmental letter advising that the visa application had been refused was addressed to the applicants at the address given by them in their visa application and was dated 27 August 2009.
A copy of a registered post sticker displaying the number 557753462017 appears on the copy of that letter. Also annexed to
Ms Hooper’s affidavit, as Annexure D, is an email exchange which commences with a request from a Tribunal officer dated
25 February 2010 to the Department’s mail contractor (Tribunal decision (para.18)) requesting confirmation that the visa refusal notification letter had been sent to the applicants within three working days of the date of the letter. By email dated 25 February 2010 an employee of the mail contractor described as “team leader” replied saying that the item in question had been sent on 28 August 2009, one day after the date of the letter.
Attached to that email were two documents – the first one gives the date of 28 August 2009, a reference number which incorporates the relevant registered post number and the name of the first applicant, and the second identifies a suburb, state and postcode all of which are the same as those of the applicants’ postal address. It can be assumed that the team leader referred to those records in order to make the statement that the letter had been sent on 28 August 2009. As to the admissibility of that evidence, it should be noted that a show cause hearing under rule 44.12 is interlocutory in nature. Page 52 of the Court Book and the affidavit of Ms Hooper satisfy me that the Department’s letter was sent to the applicants on 28 August 2009.
By virtue of s.494C(4) the letter is deemed to have been received by the applicants on 7 September 2009. As already observed, s.412 and reg.4.31 provide that an applicant has twenty-eight days after the day of deemed notification of the delegate’s decision to lodge his or her application to the Tribunal. In this case that twenty-eight day period expired on 6 October 2009. As noted earlier in these reasons, the applicants’ application was not lodged until 21 January 2010 with the result that it was lodged late.
The Tribunal was therefore not in error in deciding that the application for review had been received outside the mandatory time limit and was not a valid application. Consequently its decision is not effected by jurisdictional error and as the applicants do not have an arguable case for the relief sought in the application, their application will be dismissed.
It should also be noted that the Tribunal’s apparent failure to notify every possible address at which the applicants may have lodged their review application does not indicate a basis for a finding of jurisdictional error. This issue was dealt with by the Full Court of the Federal Court in SZOFE v Minister for Immigration & Citizenship [2010] FCAFC 79 and discussed by me in SZNOY v Minister for Immigration & Citizenship [2010] FMCA 510 at [46] to [62]. In this case, both at the time of lodging the protection visa application and at the time of lodging the application for review with the Tribunal, the applicants lived at one particular address in suburban Sydney. They lodged their review application at the Sydney registry of the Tribunal. Plainly, the Department’s notification to the applicants of the locations where a review application could be lodged did not deny them an effective or adequate opportunity to make an application for review such that the Tribunal’s decision is effected by jurisdictional error.
That being so, there is no need to consider the other three grounds pleaded in the application. Nevertheless some comment can be made about them.
The second pleaded ground alleges that the Tribunal’s jurisdiction depended on it being reasonably satisfied of something. This allegation refers to the satisfaction which s.65 of the Act requires the Tribunal to have, before it can vary or set aside a delegate’s decision to refuse an application for a protection visa. However such considerations only come into play when the Tribunal has jurisdiction to conduct a review. As it had no such jurisdiction on this occasion, the Tribunal was not called upon to consider the applicants’ claims and whether it was satisfied that they met the criteria for the grant of a protection visa.
The third pleaded ground dealing with the applicants’ alleged satisfaction of the Convention criteria fails for the same reason. It would also fail because it invites the Court to conduct a review of the merits of the visa application which it cannot do.
The fourth pleaded ground also fails because the Tribunal had no jurisdiction to entertain the review application. Further, it posits that the Tribunal has a general duty to investigate the applicants’ factual claims and related circumstances. The Tribunal has no such duty.
Conclusion
As no arguable case for relief has been demonstrated by the applicants, the respondents will not be called upon to show cause and the proceedings will be dismissed pursuant to rule 44.12.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 11 August 2010
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