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

1. The application be dismissed.

2. 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

1. 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.

2. 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.

3. For the reasons which follow, the application will be dismissed.

Relevant legislation

1. 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; …

2. 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 within which an application for review of an RRT-reviewable decision can be made commences on the day on which the applicant is notified of the decision to which the application relates and ends at the end of twenty-eight days.

3. Section 66(1) provides that when the Minister grants or refuses to grant a visa, he must notify the applicant in the prescribed way. Regulation 2.16 provides that for the purposes of s.66(1), the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s.494B. Section 494B relevantly provides:

   494B         Methods by which Minister gives documents to a person

   …

   Dispatch by prepaid post or by other prepaid means

   (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 …

4. Section 494C relevantly provides:

   494C         When a person is taken to have received a document from the Minister

   …

   Dispatch by prepaid post or by other prepaid means

   (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 prepaid 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 …

5. Consequently, if s.494B(4) has been followed, by operation of s.494C(4) of the Act, the prescribed period within which a review application must be lodged with the Tribunal commences seven working days after the date of the notice of the departmental decision.

6. Section 494D(1) provides that if an applicant has nominated an authorised recipient to receive documents in connection with matters arising under the Act or Regulations, the Minister must give the authorised recipient, instead of the applicant, any documents that the Minister would otherwise have given to the applicant.

7. 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.

Background facts

1. 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; and

   b)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.

2. 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.

3. 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.

4. 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.

5. 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.

The Tribunal’s decision and reasons

1. The Tribunal found that the applicant was seeking review of an RRT-reviewable decision and that the applicable prescribed period was twenty-eight days, commencing on the day on which the applicant was validly notified of the decision in accordance with the Act.

2. The Tribunal noted that in response to enquiries it had made of the Minister’s department, the company which provided mail and distribution services to the department confirmed that the applicant’s decision record and information about review rights (“decision documentation”) had been dispatched by prepaid registered post on 30 November 2011. The Tribunal was satisfied that the contents of the decision documentation complied with the requirements of s.66(2).

3. The Tribunal found that the material before it indicated that the applicant had given the Minister written notice under s.494D of the name and address of an authorised recipient and that the decision documentation was sent by prepaid post on 30 November 2011 from a place in Australia to the applicant’s authorised recipient at an address in Australia. The Tribunal further found that the decision documentation was dispatched to the correct address within three working days of the date of the decision notice. It therefore found that the applicant was taken to have received the decision documentation on 9 December 2011, being seven working days after the date of the decision notice.

4. After considering the applicant’s submissions, the Tribunal nevertheless found that the delegate’s decision had been validly notified and therefore that there was no valid application for review. The Tribunal noted that it did not have discretion to accept an application for review which had been lodged outside the prescribed period, regardless of any extenuating circumstances which had occurred after the dispatch of the decision documentation.

5. The Tribunal concluded that the applicant had been properly notified of the delegate’s decision and was taken to have been notified on 9 December 2011. The Tribunal further found that the prescribed period of twenty-eight days within which the application for review could be lodged had ended on 6 January 2012. Given that the applicant’s application for review was received on 20 January 2012, after the prescribed period had expired, the Tribunal found that the application was not valid and that it had no jurisdiction to consider it.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.RRT made a jurisdictional error in its conclusion that my application should not be accepted.

   2.RRT failed to take into relevant matter in considering my application to have my decision made by DIAC to be reviewed.

Ground 1

1. 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.

2. That being so, there is no basis to conclude that the Tribunal erred in finding that the applicant’s review application was not valid because it was lodged out of time. This conclusion means that the first ground of the application is not made out.

Ground 2

1. The second ground of the application alleged a failure by the Tribunal to take into account a matter relevant to the applicant’s review application. Again, the applicant did not particularise her allegation. In the circumstances of this case, the matters which the Tribunal was required to consider were the date of the refusal notification, the date it was despatched by the Minister’s department, the addressee of the letter, whether the notice complied with s.66(2) and the date on which the review application was lodged with it. The Tribunal turned its mind to all of these matters.

2. 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.

3. For these reasons, the second ground of the application is not made out.

Conclusion

1. As jurisdictional error on the part of the Tribunal has not been demonstrated the application will be dismissed. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Cameron FM

Date:  5 March 2013