SZRHA v MIAC

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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…

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Details
Case
[2013] FCA 531
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, SZRHA, an appellant, filed an application for judicial review against MIAC, the first respondent. The application aimed to challenge a decision by the Tribunal that rejected the appellant's review application on the basis that it was lodged beyond the permitted time. The appellant argued that the Tribunal made a jurisdictional error and failed to consider a relevant matter when reviewing the delegate's decision. The primary judge dismissed the application, finding that the appellant did not identify any specific errors made by the Tribunal and did not challenge the validity of the notification of the decision or the timeliness of the application.

The legal issues before the court were whether the Tribunal erred in concluding that the appellant's application for review was out of time and whether the Tribunal failed to consider a relevant matter in assessing the application. The appellant contended that the Tribunal should have excused the late filing due to the negligence of her migration agent. The court needed to determine whether the appellant's arguments had merit and if the Tribunal's decision was legally sound.

The court found that the appellant did not identify any specific jurisdictional error made by the Tribunal, nor did she challenge the correctness of the notification of the decision or the timeliness of the application. The court held that the Tribunal had correctly determined that the application was filed beyond the permitted time and that the statutory provisions were clear and strict, leaving no room for the Tribunal or the court to allow extra time for filing a review application. The court also noted that the appellant's migration agent's negligence did not provide a basis for setting aside the Tribunal's decision. Therefore, the appeal was dismissed, and the appellant was ordered to pay the first respondent's costs of the appeal.

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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. 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. 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. 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. 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

Ratio Decidendi

Legal Principle Established

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