SZRHA v Minister for Immigration - [2013] FMCA 131

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRHA v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 131

MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to take into account a relevant matter.

Migration Act 1958, ss.66, 411, 412, 474, 494B, 494C, 494D
Migration Regulations 1994, regs.2.16, 4.31

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant:

SZRHA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 623 of 2012

Judgment of:

Cameron FM

Hearing date:

14 February 2013

Date of Last Submission:

14 February 2013

Delivered at:

Sydney

Delivered on:

14 February 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 623 of 2012

SZRHA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of China who most recently arrived in Australia on 27 May 2011. On 19 August 2011 she applied to the Department of Immigration and Citizenship for a protection visa. On 29 November 2011 her application for a protection visa was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. On 28 February 2012 the Tribunal found the applicant’s review application to be invalid. It found that it had no jurisdiction to consider the applicant’s review application because it had been lodged after expiry of the prescribed period within which a review application might be lodged. The applicant has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.

Relevant legislation

Section 411(1)(c) of the Act prescribes a decision to refuse to grant a protection visa to be an RRT-reviewable decision. Section 412 of the Act and reg.4.31 of the Migration Regulations 1994 (“Regulations”) set out the prescribed periods within which an application for review of an RRT-reviewable decision can be made. Section 412 relevantly provides:
412 Application for review by the Refugee Review Tribunal
(1)An application for review of an RRT-reviewable decision must:
…
(b)be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; …
Regulation 4.31 provides that for the purposes of s.412(1)(b) of the Act, and for an applicant who is not in immigration detention, the period…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FMCA 131
Decision Date: 14 February 2013

CaseChat Overview and Summary

In the case of SZRHA v Minister for Immigration, the applicant, SZRHA, appealed a decision made by the Refugee Review Tribunal which upheld the Minister's refusal to grant her a protection visa. The applicant had made claims of sexual assault and attempted suicide, but the Tribunal found that her application was not lodged within the required timeframe. The primary issue before the court was whether the Tribunal's decision was affected by a jurisdictional error, specifically whether it failed to take into account relevant considerations when assessing the applicant's claims.

The court examined the statutory provisions governing the notification of decisions to refuse a visa, particularly section 66(2), which mandates that certain information must be included in the notification. The court assessed whether the Tribunal's decision was in accordance with the law, taking into account the applicant's claims of delayed notification and the migration agent's statutory declaration. The court concluded that the Tribunal had correctly applied the law and did not err in its assessment of the applicant's claims. The applicant's argument regarding delayed notification was found to be unconvincing, as the Tribunal had correctly identified the date of notification and the subsequent deadline for lodging the review application.

The court dismissed the applicant's appeal and ordered that the application be dismissed. Additionally, the applicant was required to pay the Minister's costs, which were fixed at $5,000. This decision underscores the importance of adhering to statutory requirements and the timelines for lodging visa applications and subsequent reviews.

Orders

Orders of the court

The application be dismissed.

The applicant pay the first respondent’s costs fixed in the amount of $5,000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 66(2) provides that the notification of a decision to refuse a visa must contain certain information. It relevantly states:66 Notification of decision…(2)Notification of a decision to refuse an application for a visa must:(a)if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and(b)if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa—specify that provision; and(c)unless subsection (3) applies to the application—give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and(d)if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:(i) that the decision can be reviewed; and(ii) the time in which the application for review may be made; and(iii) who can apply for the review; and(iv) where the application for review can be made. The applicant made the following claims in a statement attached to her protection visa application:a)on 30 September 2010 the top officials of her company took her to a restaurant where they were having a feast for some high level government officials. She was forced to drink and have sex with the government officials. After that she was forced to have sex with government officials and top officials from other companies on numerous occasions; andb)on 2 February 2011 after another incident, she tried to commit suicide but her grandparents found her and took her to hospital. Her grandparents were afraid that she would try to commit suicide again so they advised her to travel to Australia. On 29 November 2011 a delegate of the Minister decided to refuse the applicant’s application for a visa. The decision was notified by letter dated 30 November 2011. On 20 January 2012 the applicant applied to the Tribunal for a review of that decision. On 1 February 2012 the Tribunal wrote to the applicant inviting her to comment on its preliminary view that her application was not a valid application as it had not been lodged within the relevant time limit. The letter informed the applicant that on the basis that the departmental decision had been posted to her on 30 November 2011, she was taken to have been notified of the decision on 9 December 2011, and therefore the last day for lodging her application had been 6 January 2012. In a response dated 20 January 2012 [sic] the applicant claimed she had only been told by her employer on 19 January 2012 that she did not hold a visa and immediately contacted her migration agent. She claimed that her migration agents told her that they had received a notification letter from the department on 30 November 2011 but they had forgotten to inform her in time. They also told her that the prescribed time to seek review of the decision had lapsed and that they could not do anything. The applicant also submitted a statutory declaration dated 2 February 2012 from Jie Yu, a migration agent. Mr Yu declared that the applicant’s protection visa application had been handled by one of his employees. He acknowledged that in December 2011 his company had received from the department the letter notifying the refusal of the applicant’s application for a protection visa but declared that the agent with carriage of the matter had had an unexpected medical emergency. He declared that this, together with the Christmas and Chinese New Year holiday periods, had resulted in them failing to send the review application to the Tribunal on time. Mr Yu declared that it was his company’s mistake and not that of the applicant which had resulted in the applicant’s review application being filed out of time.

Ratio Decidendi

Legal Principle Established

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