SZQYF v Minister for Immigration

[2012] FMCA 333

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQYF & ANOR v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 333

MIGRATION – Review of decision of Refugee Review Tribunal – where Tribunal determined application to it made out of time – where notification sent to last address for service of applicant – where address for service incorrect – whether applicant notified of decision – whether application was out of time.

Migration Act 1958, ss.48B, 412(1)(b), 494B(4)
Migration Regulations 1994, reg.4.31(2)(b)

First Applicant: SZQYF

Second Applicant: SZQYG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2848 of 2011

Judgment of: Raphael FM

Hearing date: 10 April 2012

Date of Last Submission: 10 April 2012

Delivered at: Sydney

Delivered on: 10 April 2012

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $3,447.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2848 of 2011

SZQYF

First Applicant

SZQYG

First Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who applied for a protection visa on 29 June 2011 together with his wife.  The claims he made arose out of his Sikh religion and ethnicity.  In the Protection Visa Application the applicant stated that his address was 9 Peter Street, Scullin ACT.  He utilised this address on three occasions in that form which are found at [CB 12], [CB 24] and, in his wife’s case, [CB 30].  On 27 July 2011 the department wrote to the applicant at the Peter Street address inviting him to attend an interview, which he did.

2. On 15 August 2011 the delegate wrote to the applicant at the same address informing him that his application for a protection visa had been declined.  The letter was posted by registered post on the same day.  On 17 August 2011 it was returned to the department and received by the department on 19 August 2011 as “unknown” [CB 53].  This description could refer to the address or to the applicant.

3. On 23 September 2011 the applicant attended at the department to ask what had happened to his application and he was told that it had been refused.  On 30 September he applied to the Refugee Review Tribunal for review of the delegate’s decision.  The Tribunal considered the application and noted that it had been submitted in excess of 28 calendar days from the date upon which he had been taken to have been notified of the primary decision.

4. As the primary decision had been posted on 15 August the relevant deeming provisions meant that 24 August 2011 was the date upon which he was taken to have been notified.  Thus, the 28 days expired on 21 September, nine days prior to his application being made.  This information was all put into a letter to the applicant on 12 October 2011, who responded on 2 November informing the Tribunal that the reason that he had not made the application in time was because he had not received a copy of the decision.  On 17 November 2011 the Tribunal determined that the application had been made out of time and that it had no jurisdiction.

5. The provisions of the Migration Act 1958 (Cth)[1] and its Regulations which deal with the deeming of delivery are all set out in the Tribunal’s decision record at [CB 70] and [71]. They are not in dispute and do not require rehearsing in this decision. It is not known what the post office’s reasons for returning the document were and it is possible that “unknown” referred to the fact that there is no Peter Street in Scullin. There is, in fact, only a Petre Street; that is the address at which the applicant resided.

   [1] “Act”

6. The deeming provisions require notification to be sent to an applicant, by prepaid post or other prepaid means, to the last address for service or the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents: Section 494B(4) of the Act. As indicated, the address given three times in the PVA was the Peter Street address. The Minister, via his counsel, has brought to the court’s attention that an envelope, which the department believes could have been the envelope in which these documents were sent, has as the sender’s details, the Petre Street address.

7. I do not believe that an address on the back of an envelope, which may or may not have been the envelope containing the relevant documents, can trump the address placed three times in the protection visa application form as being the applicant’s address. In my view, that is the address that complies with s.494B(4) of the Act, and thus, dispatch to that address constituted dispatch within the section.

8. The Tribunal, in its decision record, satisfies itself that all the other provisions of the Act and Regulations were complied with.  It concluded that the last day for making an application to it was 21 September 2011 and it is clear from the court book that the actual date of application was 30 September.  In those circumstances the application was out of time.  There is no provision for the Tribunal or this court to alleviate the effects of the section limiting the time for making an application (s.412(1)(b) and Regulation 4.31(2)(b) Migration Regulations 1994).

9. The applicant appeared before me today but all he could tell me, understandably, was that he had not received the documents and that he had not any knowledge of the law and did not know that there was in fact a time limit. It might be open to the applicant to seek from the Minister his fiat under s.48B of the Act to make a further application but I would suggest to the applicant that this is possibly an unlikely dispensation given the nature of his claim and the country from which he has come.

10. The application is dismissed.  I order that the applicant pay the first respondent’s costs which I assess in the sum of $3,447.00.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Date:  20 April 2012