SZQWA v Minister for Immigration
[2012] FMCA 694
•23 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQWA v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 694 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – application dismissed. |
| Migration Act 1958 (Cth), ss.66, 412, 425, 476, 494B, 494C Migration Regulations 1994 (Cth), reg.4.31 |
| Fernando v The Minister (2000) 97 FCR 407 SZEYK v The Minister (2008) FCA 1940 Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 |
| Applicant: | SZQWA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2649 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 23 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 23 July 2012 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,360.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2649 of 2011
| SZQWA |
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 11 November 2011 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 background to these proceedings is that the applicant applied to the Department of Immigration for a protection visa in May 2011. By letter of 30 June 2011, addressed to the applicant at the address he had provided, the applicant was invited to attend an interview with the Department in relation to his protection visa application. He attended that interview.
The delegate decided to refuse to grant the visa. The delegate notified the applicant of the decision of 8 August 2011 by letter addressed to the applicant at the address he had provided in connection with his protection visa application. I note in that respect that the one address was provided by the applicant in the protection visa application as both his residential and postal address. I will refer to it for convenience as the Dee Why address.
On 28 September 2011 the applicant sought review by the Tribunal. He provided the Tribunal with the Dee Why address as his address for both residence and correspondence.
By letter dated 5 October 2011 the Tribunal wrote to the applicant at the Dee Why address inviting him to comment on the validity of his application for review. The letter advised the applicant that the Tribunal officer was of the view that the application for review was not valid as it had not been lodged within the relevant time limit of 28 days from the day that he was taken to have been notified of the delegate’s decision. As the primary decision was posted to him on 9 August 2011 (a matter to which I will return), 17 August 2011 was said to be the day on which he was taken to have been notified and the last date for lodging the review application was 14 September 2011. The letter advised that as the application was not received until 28 September, it appeared to be out of time, although this was a matter that must be determined by a Tribunal member. The applicant was given until 28 October 2011 to comment if he wished to do so. He did not do so.
By decision of 11 November 2011 the Tribunal decided that it did not have jurisdiction to review the delegate’s decision. The Tribunal set out the applicable law under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). It observed that in circumstances such as the applicant’s where an applicant was not in immigration detention, the application for review had to be lodged not later than 28 days after the date on which notice was deemed to have been received and that there is no provision for an extension of time (see s.412(1)(b) and reg.4.31(2)(b)).
As the decision notice was sent by prepaid registered post, the Tribunal had made enquiries with the Department to determine whether it was sent within three working days as required under s.494B of the Migration Act. It recorded that Converga, which provides mail and delivery services for the Department, confirmed with evidence that the document was dispatched by prepaid registered post on 9 August 2011. Copies of the Tribunal’s email, the response from Converga and the extract from the Converga records are included in the bundle of relevant documents before the court.
The Tribunal was satisfied that the contents of the delegate’s decision notice complied with the requirements of s.66(2) of the Migration Act. No issue was taken in that respect. Nor is any apparent. The Tribunal noted that the applicant did not appoint an authorised recipient and found that the decision notice was dispatched within three working days of the day of the letter to the correct address in accordance with s.66(1) and s.494B(4) of the Migration Act. Therefore the applicant was taken to have received the notice of the decision on 17 August 2011, seven working days after the date of the notice.
The Tribunal referred to the fact that it wrote to the applicant on 5 October 2011 inviting comment in relation to whether the application was out of time and also the absence of any response.
The Tribunal concluded that the applicant had been properly notified of the delegate’s decision and was taken to have been notified on 17 August 2011, and found, therefore, that the prescribed period of 28 days within which the application for review could be lodged ended on 14 September 2011. As the application for review was not received until 28 September 2011, after the prescribed period had expired, it was not valid and the Tribunal found that it had no jurisdiction.
The applicant sought review by application filed in this court on 21 November 2011. In his application he relies on two generally expressed and unparticularised grounds which are that the decision involved jurisdictional error and there was a breach of natural justice. In the application it was said that a third ground would be “filed later” but the applicant confirmed today that he had not filed any subsequent documents in these proceedings.
In his accompanying affidavit and in submissions today the applicant claimed that he did not receive the notification from the delegate within the 28 days time period and claimed that he had applied for review of the delegate’s decision once he received that decision. The applicant appeared to take issue with the fact that he had not been given a Tribunal hearing and also contended that he had not received the Tribunal’s invitation to comment letter of 5 October 2011.
I have considered all the grounds raised by the applicant and apparent on the material before the court. Insofar as the applicant contends generally that there was jurisdictional error, as expressed that ground does not establish jurisdictional error. However I have considered it in light of the contention that there was a breach of natural justice. Any procedural fairness obligations were met by the Tribunal seeking the applicant’s views in relation to its jurisdiction. There was no obligation, or indeed power, on the part of the Tribunal in circumstances such as those of the present case to invite the applicant to a hearing pursuant to s.425 of the Migration Act (see SZEYK v The Minister [2008] FCA 1940).
The applicant contended that his application should have been accepted notwithstanding that it was out of time. However the Tribunal correctly found that his application was out of time. In reaching that finding it had regard to the fact that under the Migration Act and Regulations, a person in the position of the applicant is taken to have been notified of the delegate’s decision where the requirements of the Migration Act and Migration Regulations are met, whether or not he in fact receives the letter of notification at the relevant time. Furthermore, the Tribunal correctly found that there was no provision for an extension of time. The Tribunal cannot override the mandatory time limit imposed in the Migration Act (see Fernando v The Minister (2000) 97 FCR 407).
The applicant also appeared to take issue with the time taken by the Tribunal to make its decision, apparently on the basis that he made his application in September and the Tribunal decision was not made until November. However this does not of itself demonstrate any lack of procedural fairness or a jurisdictional error and I note that, as set out above, the Tribunal wrote to the applicant on 5 October 2011 inviting him to comment.
Accepting for present purposes the applicant’s oral contention that he did not receive the letter of 5 October 2011, that would not establish jurisdictional error on the part of the Tribunal. No breach of natural justice is apparent on the material before the court.
Furthermore, the Tribunal correctly found that the applicant was properly notified of the delegate’s decision by the letter dated 8 August 2011 pursuant to s.494B(4) of the Migration Act and, consequentially, that as it was sent from a place in Australia to an address in Australia, the applicant was taken to have received the decision seven working days from the date of the document under s.494C(4)(a) of the Migration Act and was required to make any application for review within 28 days from such deemed notification.
It has not been established that the Tribunal erred in making such findings in relation to notification of the applicant, the time for lodging an application for review or in its conclusion that it did not have jurisdiction to review the delegate’s decision.
I note that there is no suggestion that the applicant changed his address or advised the Department of any change of address. I also note that, as pointed out in the written submissions for the Minister, registered post is a type of delivery that has been held to fall within the meaning of prepaid post or other prepaid means within s.494B(4) of the Migration Act (see Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172).
Finally, insofar as the applicant may be taken to be intending to challenge the delegate’s decision, the delegate’s decision is a primary decision reviewable under Part 7 of the Migration Act (see s.476(4)(a)). Pursuant to s.476(2)(a) of the Migration Act, this court does not have jurisdiction in relation to such a primary decision.
As no jurisdictional error has been established in relation to the decision or procedures of the Tribunal, the application must be dismissed.
RECORDED: NOT TRANSCRIBED
There is nothing in the circumstances of the present case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 10 August 2012
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