SZOJO v Minister for Immigration
[2010] FMCA 555
•26 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOJO v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 555 |
| MIGRATION – RRT decision – application to Tribunal after expiry of time limit – notification of delegate’s decision – absence of some addresses of the Tribunal – notification was not invalid in circumstances of applicant – no grounds for relief shown – application for judicial review dismissed. |
| Migration Act 1958 (Cth), ss.66, 66(2), 66(2)(d), 66(2)(d)(iv), 412(1)(b), 425(1), 426A, 476, 477, 494B(4), 494C(4)(a) Migration Regulations 1994 (Cth), reg.4.31(2)(b) |
| Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629 Fernando v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 407 Hasan v Minister for Immigration & Citizenship [2010] FCA 375, (2010) 114 ALD 602 Maroun v Minister for Immigration & Citizenship [2009] FCA 1284, (2009) 112 ALD 424 Minister for Immigration & Citizenship v Abdul Manaf [2009] FCA 963 Minister for Immigration & Citizenship v SZMTR (2009) 180 FCR 586 Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550 SZBMF v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 485 SZOFE v Minister for Immigration & Citizenship [2010] FCAFC 79 Tay v Minister for Immigration & Citizenship (2010) 183 FCR 163 VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570 |
| Applicant: | SZOJO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 946 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 26 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr Y Shariff |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 946 of 2010
| SZOJO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia in October 2007. On 25 October 2007, an application for a protection visa signed by him was lodged with the Department of Immigration. The application did not disclose any person giving assistance, and provided a residential address at Cabramatta as the applicant’s current postal address in Australia, to which written communications would be sent. A brief statement attached to the application claimed that the applicant had suffered by reason of land confiscation in China, but gave no details.
A letter from the Department was sent to the applicant by registered post to his Cabramatta address on about 31 October 2007, inviting him to an interview on 15 November 2007. However, the applicant did not attend, and the letter was later returned to the Department marked “unclaimed”.
A second letter was sent to the applicant on 20 November 2007 by registered post to his Cabramatta address. In that letter, a delegate informed the applicant that he had been refused a protection visa. The enclosed reasons said that the delegate was unable to assess the veracity and credibility of the written claims put forward by the applicant, due to his absence from the scheduled interview.
The letter said:
Review Rights
As you have been refused a Protection Visa, you may apply to have this decision reviewed by the Refugee Review Tribunal (RRT). Information about applying for review is included with this letter. Please note there are time limits on applying for review.
The Court Book reproduces a copy of a brochure about the Refugee Review Tribunal, and I find it probable that this is a copy of a brochure which was enclosed with the notification letter. The brochure included information about the Tribunal, the mandatory time limit for applying for review, and how time will be calculated. It included:
How do I apply to the Tribunal for review?
You must complete an APPLICATION FOR REVIEW form. You can get this form from one of the Tribunal’s offices or print a copy from our website at
…
Where do I send my application?
If you live in NSW, QLD, NT or ACT, you should send or give your application to the Sydney office of the Tribunal. If you live in VIC, SA, WA or TAS you should provide your application to the Melbourne office of the Tribunal. You may hand‑deliver, post or fax the application to the Tribunal. The addresses and numbers of the Tribunal’s offices are listed on page 7 of this brochure.
…
Additional Information
The Tribunal has offices in Sydney and Melbourne. They are open from 9.00 am to 4.30 pm Monday to Friday, except public holidays.
The Tribunal’s internet address is
If you have any questions about the Tribunal or how to apply, please call one of the phone numbers below.
For applicants living in NSW, QLD, NT and ACT:
Postal address
GPO Box 1333
Sydney NSW 2001
Phone (02) 9276 5000
Fax (02) 9276 5599
New Sydney office location
Level 11, 83 Clarence Street, Sydney NSW 2000
For applicants living in VIC, TAS, SA and WA:
Postal address
PO Box 14422
Melbourne VIC 8001
Phone (03) 8600 5900
Fax (03) 8600 5901
The Melbourne Registry is located at:
Level 12, 460 Lonsdale Street, Melbourne VIC
If you live outside the Sydney or Melbourne areas and need help or more information from the Tribunal, please call the National Telephone Enquiry Number: 1800 361 969 (local call charges apply; not available from mobile phones).
Translating and Interpreting Service
Telephone 131 450 from anywhere in Australia.
The copy of the notification letter on the Department’s file bears a number from a registered post receipt. Also reproduced in the Court Book is a copy of the envelope with that number on it, which was returned to the Department on 26 November 2007. The envelope has an Australia Post stamp “Return to Sender” with the box ticked, which indicates “Left Address/Unknown” with a line through the “Left Address” option. Someone has also written on the envelope “not known”. This suggests to me that the postman attempted to deliver the envelope to the applicant at the address, but was told that the applicant was unknown at that address at that time.
There is no evidence before me presented by the Department or the applicant, indicating any attempts by the applicant over the next two years to contact the Department or the Tribunal in relation to his migration affairs.
On 21 December 2009, the applicant lodged an application for review by the Tribunal, referring to his Departmental “client ID” number. It did not identify a decision for which review was sought, but the Tribunal assumed, and it is not challenged by the applicant, that he was seeking review of the delegate’s decision made on 20 November 2007.
The applicant was invited to a hearing of the Tribunal, which he attended on 30 March 2010. At the hearing, he presented to the Tribunal a handwritten statement, in which he claimed that his original protection visa had been signed in blank by him and completed by “an adviser who had written the material”. In his statement to the Tribunal, he claimed that he had been persecuted in China as a Falun Gong practitioner after becoming interested in that activity in July 2007.
The Tribunal’s hearing appears to have been brief, and the applicant now complains that the Tribunal did not investigate his refugee claims. I think this may have been the case, and that the Tribunal was mostly concerned at the hearing to consider whether it had jurisdiction to make that investigation.
The Tribunal made a decision on 30 March 2010 that it did not have jurisdiction to consider the applicant’s application for review. In its statement of reasons, the Tribunal correctly identified the provisions of the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth), which require an application for review to be lodged within 28 days after the day on which notice of the delegate’s decision is received (see s.412(1)(b) and reg.4.31(2)(b)).
The Tribunal also correctly identified provisions of the Act and Regulations which conclusively deem receipt of a notification of a decision by a delegate of the Minister, if it is sent by post within three working days of the date of the document to the last residential address provided to the Minister for the purposes of receiving documents (see ss.494B(4), and 494C(4)(a)). In my opinion, the evidence before me shows that the present notification was probably so posted.
The Tribunal applied those provisions, and concluded that the prescribed period within which an application for review could be lodged ended on 27 December 2007. It found that the application for review was received after that period had expired, and that the Tribunal therefore had no jurisdiction. The Tribunal noted that the applicant had claimed not to have received the notification letter, notwithstanding that he also claimed to have continued to live at the Cabramatta address until March 2009.
The application to this Court was filed within time under s.477 of the Migration Act. It seeks a writ of mandamus requiring the Tribunal to proceed with the application for review. Its grounds contend that the Tribunal failed to comply with the requirements of ss.425(1) and 426A of the Migration Act, in relation to giving the applicant notice of information and inviting him to a second hearing. However, those provisions only govern the Tribunal’s procedures in review proceedings in which the Tribunal has jurisdiction. Even if there were merit in the challenges to the hearing which, in fact, the applicant was afforded, these arguments would not overcome an absence of jurisdiction in the Tribunal, if the Tribunal correctly so decided.
An amended application, which appears to have been prepared with the assistance of a barrister to whom the applicant was referred for free legal advice, seeks to build upon the judgment of North J in Hasan v Minister for Immigration & Citizenship [2010] FCA 375, (2010) 114 ALD 602. It seeks:
1.A declaration that the Applicant was not validly notified of the decision of the First Respondent to refuse the Applicant a visa made on 20 November 2007 in accordance with section 66 of the Migration Act.
2.An order in the nature of mandamus compelling the First Respondent to notify the Applicant of the decision made on 20 November 2007.
3.In the alternative to order two, an order in the nature of certiorari setting the purported decision of the Second Respondent aside.
4.An order of prohibition to restrain the Respondent from giving any further effect to the purported decision.
5.In conjunction with order three, an order in the nature of mandamus remitting the matter back to the Tribunal to be determined according to law.
6.An order that the First Respondent pay the Applicant’s costs.
7.Such other orders as the Court sees fit.
It presents two grounds:
Ground one.
1.)The First Respondent failed to comply with section 66(2)(d) of the Act, in failing to inform the Applicant of all the places at which an application could be lodged in its purported notification of 27 November 2007, as it failed to inform the Applicant that applications could be lodged at Administrative Appeals Tribunal registries, and has not validly notif[ied] the Applicant of its decision to refuse the applicant a visa (Hasan v Minister for Immigration and Citizenship [2010] FCA 375).
Ground two.
2.)The Second Respondent erred in holding that the review application was out of time, because time ran until 28 days of a valid notification of the First Respondent’s decision, and no valid notification has been given.
In effect, the argument presented in the amended application concedes that the Tribunal did not have jurisdiction, but contends that time has not yet commenced to run for bringing an application for review, due to the absence of a valid notification of the delegate’s decision as required by s.66(2)(d)(iv) of the Act. In Hasan, North J suggested that a notification must include all of the addresses of the Tribunal and its agents for receiving applications.
However, the Full Court has recently delivered a judgment in SZOFE v Minister for Immigration & Citizenship [2010] FCAFC 79 which goes against the applicant’s argument. Emmett J departed from the opinion of North J, and concluded that s.66(2)(d)(iv) of the Migration Act: “requires simply that the notification state those places where, in all of the circumstances of the case, it would be convenient or adequate for the purposes of the particular applicant” (see [27] to [29]).
His Honour also concluded that, even if every place where an application for review could be made was required to be identified in every notification letter, in the circumstances of the matter before their Honours, Parliament would not have intended that a failure to do this should give rise to invalidity of the notification in fact given to SZOFE, nor to the absence of jurisdiction from the Tribunal in relation to an application for review filed before time had commenced to run (see [30] to [36]).
Buchanan and Nicholas JJ also disagreed with North J in Hasan: “insofar as his Honour stated a general rule about the requirements of s 66(2)(d)(iv)” (see [64] of SZOFE). Their Honours then, in effect, agreed with Emmett J that in the circumstances of the case before their Honours, Parliament would not have intended that a notification would not be effective for the purposes of s.66 by informing an applicant resident in Sydney of the Sydney addresses of the RRT (see [65] to [69]).
That reasoning, in my opinion, is applicable to the present notification to the applicant, in relation to any matter required to be included under s.66(2)(d)(iv). The applicant had provided a Sydney address for receiving communications by post. On his own later evidence to the Tribunal, he was still living there when the postman tried to deliver it. The brochure enclosed with the notification letter gave the appropriate postal and physical addresses of the Tribunal in Sydney. Any defect in the content of this notification arising from the absence of other Tribunal addresses would not, in the circumstances, have been intended to result in the invalidity of this notification. The time for applying for review by the Tribunal must, therefore, be calculated from the date of the notification.
The applicant’s amended application does not appear to contend that the communication of information in a brochure, rather than in the body of the notification letter, provides a point of distinction. In my opinion, the brochure amounted to sufficient communication of the information required by s.66. I note that a similar brochure was regarded as being a sufficient medium for communication of the matters under s.66(2) in Maroun v Minister for Immigration & Citizenship [2009] FCA 1284, (2009) 112 ALD 424 at [18] to [22], and in the Minister for Immigration & Citizenship v SZMTR (2009) 180 FCR 586 at [45] to [49].
I am therefore not persuaded that the notification letter posted to the applicant on or about 20 November 2007, failed to comply with any requirements of s.66(2) of the Migration Act, insofar as those requirements related to the applicant’s circumstances known to the Department at that time or now known. The grounds for the relief argued in the amended application have therefore not been made out.
Considering for myself, whether the Tribunal was correct in concluding that it did not have jurisdiction, I have reached the same conclusion as the Tribunal. It is well established that the time limits for seeking review by the Tribunal are mandatory (see Fernando v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 407, VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570, and Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629).
It is also well established that a sufficiently posted notification of a delegate’s decision is conclusively deemed to have been received for the purposes of the time limit even if, in fact, it was not received and the letter was returned to the sender (see Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550 at 564, also SZBMF v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 485, Minister for Immigration & Citizenship v Abdul Manaf [2009] FCA 963, and Tay v Minister for Immigration & Citizenship (2010) 183 FCR 163).
For the above reasons, I consider that the applicant has not established any grounds for giving him relief within this Court’s jurisdiction under s.476 of the Migration Act in relation to his protection visa application and the actions taken in relation to it by either the Minister or the Tribunal.
I must therefore dismiss the application.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate:
Date: 30 July 2010
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