SZRHA v MIAC

[2013] FCA 531

FEDERAL COURT OF AUSTRALIA

SZRHA v Minister for Immigration and Citizenship [2013] FCA 531

Citation:	SZRHA v Minister for Immigration and Citizenship [2013] FCA 531
Appeal from:	SZRHA v Minister for Immigration & Anor [2013] FMCA 131
Parties:	SZRHA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:	NSD 325 of 2013
Judge:	NICHOLAS J
Date of judgment:	16 May 2013
Legislation:	Migration Act 1958 (Cth)
Cases cited:	Cheng v Minister for Immigration and Citizenship (2011) 198 FCR 559 SZNZL v Minister for Immigration and Citizenship 186 FCR 271 SZRIA v Minister for Immigration and Citizenship [2012] FCA 1345
Date of hearing:	16 May 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	23
Counsel for the Appellant:	The appellant appeared in person
Solicitor for the First Respondent:	Ms S Given of Minter Ellison

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 325 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZRHA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	16 MAY 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 325 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZRHA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE:	16 MAY 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(Revised from transcript)

BACKGROUND

1. This is an appeal from a judgment of a Federal Circuit Court Judge (Judge Cameron) given on 14 February 2013 dismissing the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (RRT) dated 28 February 2012.

2. The appellant appeared at the hearing in person.  She was not legally represented but was assisted by an interpreter fluent in Mandarin.  The appellant was given an opportunity at the hearing to say what she wished to say in support of her appeal.  She informed the Court that she had nothing to say.  Directions had previously been made for the filing of written submissions.  A written submission was not filed by the appellant, although one was filed by the first respondent.  That was served upon the appellant who indicated to me that she had read it. 

3. The appellant is a citizen of China who arrived in Australia on 27 May 2011, travelling on a sub-class 676 Tourist (Short Stay) visa.  On 19 August 2011 she lodged an application for a protection visa.

4. The matters relied upon by the appellant in support of her claim for a protection visa related to her employment in China and mistreatment by senior staff of the company for which she worked.  In particular, the appellant claimed that she was forced by the senior staff to have sexual relations with government officials.

5. On 30 November 2011 a delegate of the first respondent refused the appellant’s application for a protection visa.  The delegate did not consider the appellant’s claim to be genuine, nor did the delegate consider that the appellant’s fear of harm, even if it was genuine, was Convention-related.

6. The appellant lodged her application for review of the delegate’s decision on 20 January 2012.  After reviewing the appellant’s application for review, the Tribunal informed the appellant of its view that her application was not valid because it had been lodged out of time.  The Tribunal invited the appellant to make submissions in relation to the issue of jurisdiction.  The appellant lodged a submission and a statutory declaration which is referred to in the Tribunal’s reasons for decision.  In her submission the appellant acknowledged that her migration agent received notice of the Tribunal’s decision, but that the migration agent failed to inform her of this fact until after the time to lodge an application for review had expired.

7. The Tribunal found that the application for review was required to be lodged by no later than 6 January 2012.  The Tribunal held that since the application for review was not lodged until 20 January 2012 it was invalid, and that the Tribunal lacked jurisdiction to entertain it. 

8. The Tribunal found that the appellant was not in immigration detention at the time she was notified of the decision. The Tribunal also found that the appellant gave the Minister written notice of the name and address of the authorised recipient under s 494D of the Migration Act 1958 (Cth), and that the delegate’s decision notice and related documentation were sent by prepaid post from a place in Australia on 30 November 2011 to the appellant’s authorised recipient at an address in Australia.

   RELEVANT STATUTORY PROVISIONS

   Sections 494B and 494C

9. Section 494B of the Migration Act sets out the methods by which the Minister may give documents to a person. Subsection 494B(4) relevantly provides:

   (4)Another method consists of the Minister dating the document, and then dispatching it:

   (a)within 3 working days (in the place of dispatch) of the date of the document; and

   (b)by prepaid post or by other prepaid means; and

   (c)to:

   (i)the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or …

10. Subsection 494C(4) provides:

    (4)If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other means), the person is taken to have received the document:

    (a)if the document was dispatched from a place in Australia to an address in Australia – 7 working days (in the place of that address) after the date of the document; or …

11. Where a notification letter has been sent to an applicant or his or her authorised recipient, the applicant is taken to have received the document within seven working days after the date of the document, regardless of whether the applicant actually received it: SZNZL v Minister for Immigration and Citizenship 186 FCR 271 at [36] per Barker J.

12. This remains true even where an applicant does not actually receive the notification due to an error on the part of his or her migration agent: Cheng v Minister for Immigration and Citizenship (2011) 198 FCR 559.

    THE PRIMARY JUDGE’S DECISION

13. The appellant filed an application for judicial review on 21 March 2012.  Her application contained two grounds.  The first was that the Tribunal made a jurisdictional error in concluding that the appellant’s application for review could not be accepted.  The second was that the Tribunal failed to take into account a relevant matter when considering the appellant’s application for review of the delegate’s decision.  The grounds were not the subject of any elaboration either in written or oral argument before the primary judge. 

14. In his reasons for judgment, the learned primary judge referred to the relevant legislative provisions (see [4]-[10] of his Honour’s reasons).  His Honour then turned to the grounds relied upon by the appellant. 

15. As to the first ground, his Honour said (at [22]):

    In the first ground of the application the applicant alleged that the Tribunal made a jurisdictional error. However, she did not identify what that error might have been. Significantly, she did not raise any issue that the notification of the decision to refuse her visa application was given other than in accordance with the statutory and regulatory provisions to which reference has been made earlier in these reasons. Specifically, no challenge was made to the evidence contained in the court book, which was exhibit A, that the notification letter was dispatched on 30 November 2011 and that it was correctly sent to her authorised recipient, her migration agent. It was also not suggested that the notification did not comply with s.66(2) of the Act. Nor was it suggested that the applicant’s application to the Tribunal was lodged any earlier than 20 January 2012.

16. His Honour found that there was no basis for finding that the Tribunal erred in holding that it lacked jurisdiction because the application was filed out of time.

17. As to the second ground relied upon by the appellant, the primary judge noted that it, like the first ground, was not particularised.  His Honour was satisfied that the Tribunal turned its mind to all relevant considerations and added (at [25]):

    It may be that by her second allegation the applicant sought to refer to the asserted fact, which I am prepared to accept, that her review application was not lodged in time because of negligence on the part of her migration agent, a matter which she addressed in her oral submissions to the Court. If so, although it is a harsh outcome, the fact is that the agent’s negligence provides no basis to set aside the Tribunal’s decision. The terms of the Act are strict and clear and neither the Tribunal nor the Court have power to allow extra time for the lodgment of a review application to the Tribunal. This is so regardless of the reasons for the delay.

    THE GROUNDS OF APPEAL

18. In this Court the appellant raised the following three grounds:

    1.Bias of the Honour, Judge of Federal Magistrate Court against the Applicant.

    2.Error of the Honour, Judge of the Federal Magistrate Court, in failing to identify the jurisdictional error made by the Second Respondent.

    3.Error of the Honour, Judge of Federal Magistrate Court, in failing to hear the evidence given by the applicant.

19. These grounds of appeal are pro forma.  They are identical to the grounds I have had to consider in SZRIA v Minister for Immigration and Citizenship [2012] FCA 1345. The first of them, which raises an allegation of bias against the primary judge, lacks any foundation.

20. As to grounds 2 and 3, it should be noted that the complaints made about the primary judge’s decision were not particularised at all, and were not the subject of any elucidation either in written or oral form.

21. There is nothing to suggest that the appellant sought to give any evidence in the proceeding before the primary judge, much less any that his Honour failed to hear.  The appeal book includes an affidavit made by the appellant that was filed with her application for judicial review.  There is no reason to think that this affidavit was not read and considered by the primary judge.  The fact that it was not specifically referred to by his Honour is perfectly understandable because it did no more than assert that the appellant was “denied a fair chance to present [her] claims in front of [the Tribunal]” without any further elaboration or particularisation.

22. There is nothing to suggest that the primary judge’s decision in this matter was affected by error.

23. The appeal is dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:
Dated:       30 May 2013