SZORH v Minister for Immigration - [2011] FMCA 106

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZORH v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 106

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.66, 411, 412, 425, 494B, 494C
Migration Regulations 1994 (Cth), reg.4.31

SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407; [2000] FCA 324
SZMHF v Minister for Immigration & Anor [2008] FMCA 1388

Applicant:

SZORH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2173 of 2010

Judgment of:

Barnes FM

Hearing date:

14 February 2011

Delivered at:

Sydney

Delivered on:

14 February 2011

REPRESENTATION

Applicant:

In person (via telephone link)

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $2,873.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2173 of 2010

SZORH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal dated 15 September 2010 that it did not have jurisdiction to review a decision of a delegate of the first respondent refusing to grant the applicant a protection visa.
The applicant, a citizen of India, arrived in Australia in April 2009. He applied for a protection visa on 17 March 2010. In a written statement accompanying his application he set out the basis on which he claimed to have a well-founded fear of persecution, in particular that he was persecuted in India due to his Sikh ethnicity, activism in the Akali Dal Party and connection with the Khalistan Movement.
The delegate invited the applicant to attend an interview. The applicant did not respond to the invitation or attend the interview. On 18 June 2010 the delegate made a decision refusing to grant the applicant a protection visa. The decision was sent by a letter bearing that date to the address given by the applicant in his protection visa application.
On 4 August 2010 the Tribunal received an application for review of the delegate’s decision. The Tribunal wrote to the applicant on 5 August 2010 acknowledging receipt of the application and wrote again on 13 August 2010 inviting him to comment on the validity of his application for review. The Tribunal advised the applicant of its preliminary view that the review application was not valid as it had not been lodged within the relevant time limit. That letter set out the manner in which the time would be calculated in accordance with the applicable time limits. It put to the applicant that the last day for lodging the application for review was 27 July 2010 and that as his application was not received until 4 August 2010, it appeared to be out of time. It invited him to comment by 7 September 2010.
The applicant provided a response dated 23 August 2010 (received by the Tribunal on 1 September 2010) in which he explained that he was in the course of moving his home when the delegate’s decision was posted to him and that his former flatmate had failed to notify him in time of the correspondence from the Department. He expressed the view that the time limit was calculated as “28 days excluding the weekends and the holidays” and stated that there was “no wilful delay” on his part.
In its reasons for decision the Tribunal set out the applicable law, in particular that where the applicant was not in immigration detention an application for review must be lodged not later than 28 days after the day on which notice of the delegate’s decision was received, and the fact that there is no provision for an extension of time (see s.412(1)(b) of the Migration Act 1958 (Cth) and regulation 4.31 of the Migration Regulations 1994 (Cth)). It also set out the law in relation to when a notice from the Department is taken to be received (see ss.494B and 494C).
In its findings and reasons the Tribunal found that the application was an RRT-reviewable decision within s.411 of the Act and that the applicable prescribed period for seeking review was 28 days “commencing on the day on which the applicant was validly notified of the decision”.
The Tribunal recorded that it had made inquiries with the Department to determine whether notification of the decision was sent within three working days of the date of the document (s.494B) and stated that it had received confirmation that the decision notification was dispatched by prepaid registered post on 21 June 2010. It found that the notification of the decision to refuse to grant a visa had been dispatched within three working days of the date of the document by prepaid post to the correct address in accordance with s.66(1) and s.494B(4). The Tribunal was satisfied that the delegate’s decision notice complied with the requirements of s.66(2) of the Act.
The Tribunal correctly calculated that the applicant was deemed to have received the delegate’s decision on 29 June 2010, being seven working days after the date of the decision notice (see s.494C(4)(a)). The Tribunal also correctly calculated that the last day for lodging the application for review was 27 July 2010.
The Tribunal set out and had regard to the applicant’s submissions in his letter of 23 August 2010 in relation to its jurisdiction, but found that this afforded no basis for accepting the application lodged on 4 August 2010 as a review application must be lodged prior to the expiry of the prescribed period and there was “no power to extend the time within which it must be lodged”.
As the application for review was not received until 4 August 2010, which was after the prescribed period had expired, the Tribunal found that the application for review was not valid (see s.412 of the Act) and that it had no jurisdiction to review the application.
The applicant sought review of the Tribunal decision by application filed in this court on 7 October 2010. An accompanying affidavit addressed the grounds of review in the application. It is in the nature of submissions. The applicant also made oral submissions today. The first ground is that the decision was “a result of jurisdictional error”. It is not particularised and does not on its face establish jurisdictional error. However, it is necessary to consider this claim in light of the other grounds of review.
The applicant also contended that the Tribunal “did not allow the time as requested” by him “to present his case”. In oral submissions the applicant appeared to submit that the Tribunal failed to take into account his submission of 23 August 2010 received on 1 September 2010. Such contention is not made out. On the contrary, the Tribunal set out and had regard to the applicant’s submission.
Insofar as the applicant’s contention is that the Tribunal erred in not granting him an extension of time, the difficulty he faces is that the Tribunal correctly found that his application was out of time and that it had no power to override the mandatory time limit prescribed in s.412(1)(b) of the Act (see Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407; [2000] FCA 324 and other cases cited in SZMHF v Minister for Immigration & Anor [2008] FMCA 1388). Given that the Tribunal had no power to extend the time for making an application, it has not been established that the Tribunal erred in not granting the applicant an extension of time. Ground two is not made out.
Ground three is that the Tribunal “denied the applicant his basic right to be heared (sic)” and takes issue with the fact that his “application/request was turned down by the” Tribunal. The application refers to the fact that the Tribunal sought the applicant’s comments on the possibility that his application was out of time and that “on response” it refused to give him additional time as he sought.
As indicated, contrary to the applicant’s submission, it was not open to the Tribunal to grant him the extension of time he sought.
Insofar as the applicant raises procedural fairness issues, any such obligations were met by the Tribunal seeking his views in relation to its jurisdiction. There was no obligation, or indeed power, on the part of the Tribunal in such circumstances to invite the applicant to a hearing pursuant to s.425 of the Act (see SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940).
The applicant elaborated on these claims in his oral submissions today, again taking issue in relation to the Tribunal’s failure to give him an extension of time. However the Tribunal had no such power and his contentions do not establish jurisdictional error, whether on the basis contended for in his application or otherwise. As no jurisdictional error has been established, the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and the Minister seeks costs in the sum of $2,873. This amount is considerably less than the amount provided for in the Federal Magistrates Court Rules, properly reflecting the nature of these proceedings. The applicant told the court that he had no work rights and no employment. However his lack of funds and lack of employment are not reasons for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent, although these matters may be matters to be taken into account by the Minister in determining when and how to seek to recover any such costs. The amount sought is appropriate in the light of the nature of this and other similar matters.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 4 March 2011