SZOPD v Minister for Immigration - [2011] FMCA 178

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOPD v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 178

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

PRACTICE & PROCEDURE – Complaint concerning standard of interpretation – solicitor for applicant seeking to have applicant further examined – application to re-open dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and was given the pseudonym “SZOPD”.

Migration Act 1958 (Cth), ss.45, 65, 66, 91X, 412(1)(b), 417, 494A-494D

Applicant:

SZOPD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1909 of 2010

Judgment of:

Lloyd-Jones FM

Hearing dates:

20 December 2010 and 7 February 2011

Date of Last Submission:

7 February 2011

Delivered at:

Sydney

Delivered on:

1 April 2011

REPRESENTATION

Advocate for the Applicant:

Mr Silva (solicitor)

Solicitors for the Applicant:

Silva Solicitors

Advocate for the Respondents:

Mr Markus (solicitor)

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application, filed on 31 August 2010, is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG1909 of 2010

SZOPD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

In accordance with the Court orders made on 19 October 2010, the solicitor for the respondent was required to file a folder which was to be indexed, labelled and paginated containing all of the documents which may be relevant to the hearing. This order was complied with and the volume is identified as Court Book (“CB”). On the date of the hearing, the Court Book was marked Exhibit “A”.
An affidavit of [SZOPD] affirmed 12 November 2010, and filed in Court on 15 November 2010, was read. Mr Silva, appearing for the applicant, sought leave to file a further amended application. Mr Markus raised objection to the late filing of this document and the attempt by the applicant to introduce new evidence. After hearing submissions from both parties, leave was granted for the filing of the further amended application and I granted Mr Markus an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FMCA 178
Decision Date: 1 April 2011

CaseChat Overview and Summary

In the case of SZOPD v Minister for Immigration, the applicant, referred to as SZOPD, sought review of a decision by the Refugee Review Tribunal (RRT) concerning the refusal of a Protection (Class XA) visa. SZOPD argued that the RRT's decision was flawed and that there was a delay in notification of the decision, which should allow for a late filing of the review application. The case reached the Federal Court of Australia, which was tasked with determining whether the RRT had jurisdiction to hear the review application and whether the Tribunal's decision contained any reviewable errors.

The court first addressed the issue of jurisdiction. It examined whether the initial notification letter from the Department of Immigration constituted a valid notification under section 66(2)(d) of the Migration Act 1958 (Cth). The Tribunal had found that the notification was valid, and the applicant was deemed to have received it on 14 December 2001. The court agreed with the Tribunal's findings, confirming that the notification was indeed valid and that the prescribed period for lodging the review application began on that date. Consequently, the court upheld the Tribunal's decision that the review application filed on 4 November 2009 was out of time.

The court also considered whether there were any reviewable errors in the RRT's decision. The applicant argued that the Tribunal had misinterpreted the notification process and that this warranted a re-examination of the applicant's case. However, the court found no basis for this contention, agreeing with the RRT that the applicant's submission did not provide sufficient grounds to accept the late application. The court concluded that once a delegate's decision has been properly notified, the review period does not restart, even if the applicant receives the decision again.

The Federal Court dismissed the applicant's appeal and ordered that the applicant pay the respondent's costs and disbursements associated with the application. This decision underscores the importance of timely review applications and the strict adherence to statutory timelines in migration matters.

Orders

Orders of the court

The application, filed on 31 August 2010, is dismissed.

The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The notification letter issued by the Tribunal to the applicant dated 3 February 2003 encloses a copy of the Tribunal’s decision and reasons which confirms that the Tribunal had decided that it had no power to determine the application and the Tribunal was unable to review the delegate’s decision. The applicant was advised of her avenue for review in the following statement:What if I disagree with the Tribunal decision?You may have a limited right to seek review of the decision by the Federal Court, Federal Magistrates Court and / or the High Court. There are strict time limits within which an application for review by the courts must be filed. I strongly advise you to promptly seek legal advice if you wish to seek review by the Courts. This course of action was not pursued by the applicant and the decision of the first Tribunal remains unchallenged. The member of the second constituted Tribunal sets out the circumstances of the second application in the following paragraphs:4. The Department purported to re-notify the applicant of the preliminary decision by a further letter to the applicant dated 13 October 2009, which was delivered by hand on 13 October 2009.5. The applicant applied to the Tribunal on 5 November 2009 for a review of the delegate’s decision.6. The question that arises in this case is whether the Tribunal has jurisdiction. Whether it does depends on whether the first notification letter was a valid notification under s.66(2)(d) of the Act.7. The Tribunal forms the preliminary view that it did not have jurisdiction because the first notification letter was a valid notification under s.66(2)(d) of the Act, and the application for review was received outside the prescribed time limit. The Tribunal wrote to the applicant on 26 November 2009 inviting submissions on this issue. The Tribunal received written submissions on 10 December 2009. The findings and reasons in the decision by the Second Tribunal are briefly and clearly stated as follows:17. 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)(d).18. The material before the Tribunal indicates that the applicant gave the Minister written notice under s.494D of the name and address of an authorised recipient and that the first notification letter was sent by registered mail to the authorised recipient on 5 December 2001. Although the authorised recipient’s address, as supplied by the applicant, was not a post office address, it is clear from the authorised recipient’s correspondence with the Department that the post office box address to which the first notification letter was sent was an accurate postal address. A copy was also sent to the applicant at her residential address.19. The Tribunal finds that the first notification letter 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) and was sent by prepaid registered post (RP13716854). Therefore, the applicant is taken to have received the first notification letter on 14 December 2001.20. The Tribunal is satisfied that the contents of the first notification letter complied with the requirements of s.66(2). The Tribunal is satisfied that a Tribunal brochure providing information about where the application for review could be made was attached to the first notification letter having regard to the facts outlined in paragraphs 21 and 22.21. The Departmental file shows that, under the heading “Review Rights”, the first notification letter states, “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”. After the signature section, the first notification letter includes the word “Enclosure”. The version of the Tribunal brochure that existed at the time the first notification letter was sent to the applicant, gave a street address and post office box address for the Tribunal. The Tribunal is therefore satisfied that the Tribunal brochure was attached to the first notification letter complied with the requirements of s.66(2)(d)(iv) of the Act.22. After receiving the first notification letter, the applicant applied to T1 on 22 July 2002 for review of the delegate’s decision. The written submissions provided by the applicant’s authorised recipient stated that the applicant had lodged her review application out of time due to financial hardship.23. The Tribunal wrote to the applicant on 26 November 2009 indicating its view that the purported Registrar re-notification, and inviting her to make any written comments in relation to the question of jurisdiction. The Tribunal received a response from the applicant on 10 December 2009, in which, in part she said:I wish to re-affirm to you sire that it was not my mistake that I had exceeded the timeframe to lodge an appeal to the RRT for decision on my protection visa application was not sent to me by the department. It was confirmed to me by the officer who had served me on the 13th October of this year. The Officer had admitted that the decision made on 5th December 2001 but was not mailed to me. He then provided me on that date the 13th October 2009 with a copy of the decision.Although my Bridging visa E was still valid at that time, the letter provided by the department on the date gave me the provision and opportunity to appeal the decision on the Refugee Review Tribunal as an option but I had to file the appeal within 28 days.My application for the Refugee Review Tribunal was lodged on the 4th November 2009 as you will note on the front copy of the application form (attached) and it is well within the 28 days timeframe.24. The Tribunal has considered the submissions provided on 10 December 2009 but does not accept that they provide a basis for accepting the review application on 4 November 2009.25. On the basis of the information relating to notification of review rights given in the first notification letter, the Tribunal finds that the letter was valid, and that the applicant was properly notified of the delegate’s decision, and is taken to have been notified on 14 December 2001. Once a delegate’s decision has been correctly notified, the time to make a valid review application does not start again, even if the applicant is given the primary decision again: MIAC v Abdul Manaf [2009] FCA 963. Therefore, the prescribed period of 28 days within which the application for review could be lodged entered on 11 January 2002.

Ratio Decidendi

Legal Principle Established

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