SZRLH v Minister for Immigration
[2013] FMCA 58
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRLH v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 58 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether applicant validly notified of decision of the Delegate of the Department of Immigration and Citizenship – whether applicant’s application for review of decision of Delegate of the Department of Immigration and Citizenship lodged within prescribed time – applicant validly notified – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 66, 91R, 411, 412, 474, 494, Pt.8 Migration Regulations 1994 (Cth), regs.2.16, 4.31 |
| Applicant: | SZRLH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 951 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 1 February 2013 |
| Date of Last Submission: | 1 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2013 |
REPRESENTATION
| The applicant appeared in person and was assisted by a Malayalam interpreter |
| Appearing for the Respondents: | Ms N Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The proceeding before this Court, commenced by way of application filed on 1 May 2012, is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $4,300.
NOTE: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 951 of 2012
| SZRLH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 13 April 2012 and handed down on 16 April 2012.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.
Background
On 13 January 2010, the applicant arrived in Australia having departed legally from India on a passport issued in his own name and a student visa issued on 26 November 2009.
On 27 September 2011, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship under the Act.
On 16 January 2012, the Delegate refused the applicant’s application for a protection visa.
On 28 February 2012, the applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 13 April 2012, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 1 May 2012, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
In their written submissions in SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012), Minter Ellison, the solicitors for the first respondent, attached a useful summary of the relevant legislative scheme. That summary is as follows:
“1. Under section 65(1) of the Act, the first respondent may grant a visa if he is satisfied of a number of matters, including that the prescribed criteria for the particular visa have been satisfied.
2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (Regulation 2.01 of the Migration Regulations 1994 (the Regulations) and to the Regulations).
3. Section 36(2)(a) of the Act provides that:
(2) A criterion for a protection visa is that the Applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
4. The 'Refugees Convention' is defined in section 5 of the Act as meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The 'Refugees Protocol' is defined in that section as meaning the Protocol relating to the Status of Refugees done at New York on 31 January 1967.
5. Subject to certain exceptions, provided for in section 36(3) of the Act, Australia has protection obligations under the Refugees Convention to persons who satisfy the definition of 'refugee' in Article 1 of the Refugees Convention. Article 1A(2) of the Refugees Convention defines a refugee as a person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
6. Section 36(2)(aa) of the Act provides that:
(2) A criterion for a protection visa is that the applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
7. Under section 411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
8. Relevantly, in conducting that review, the second respondent must comply with the natural justice hearing rule, the requirements of which are exhaustively stated in Division 4 of Part 7 of the Act (section 422B(1) of the Act). That Division contains sections 424A and 425, which provide that:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
9. Under section 474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under section 474(1)(a) of the Act, a privative clause decision is final and conclusive.
10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.”
The applicant’s application for a protection visa
The applicant claims to fear persecution from Muslims in India by reason of his Christianity.
The applicant claimed to have been baptised as a Christian on 21 January 2011 in Sydney, having come to Australia on 13 January 2010 on a student visa.
The applicant claimed that on his return to India on 29 June 2011, he was expelled from his home by his parents because of his conversion and baptism as a Christian in Australia. He was also expelled from Muslim associations and threatened with harm. The applicant claimed to have been beaten on his way to the police station to complain about the harassment he was receiving, thereby prompting his return to Australia on 20 July 2011.
The Delegate’s decision
On 4 January 2012, the applicant attended an interview with the Delegate.
On 16 January 2012, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention.
The Tribunal’s review and decision
On 28 February 2012, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 7 March 2012, the Tribunal wrote to the applicant notifying him that the time limit for the lodging of his application for review had expired on 22 February 2012.
On 28 March 2012, the applicant responded to the Tribunal’s letter stating that he did not receive the decision on time and that the post office had not given him any notice to collect the document.
The Tribunal noted the legislative scheme under the Act which provided for review by the Tribunal of a Delegate’s decision.
In particular, the Tribunal noted that:
a)Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the Tribunal.
b)Under s.412(1)(b) of the Act, an application for Tribunal review must be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision. The relevant period prescribed by reg.4.31(2)(b) of the Migration Regulations 1994 (Cth) (“the Regulations”) is 28 days.
c)Regulation 4.31(4) of the Regulations provides that an application sent to the Tribunal by post or facsimile is not taken to have been lodged until it is received at a registry of the Tribunal.
d)The prescribed period of 28 days commences on the day on which the applicant is validly notified of the decision.
The Tribunal found that the applicant had been notified of the Delegate’s decision by prepaid registered post sent within three working days of the date of the notification, being 16 January 2012. The Tribunal was satisfied that the contents of the notification letter complied with s.66(2) of the Act, which required certain information about why the visa was refused, the right of review and how to apply for review of the decision, including that the timeframe for any application for review of the Delegate’s decision expires at the end of 28 days of notification.
Regulation 2.16(3) of the Regulations prescribes that the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s.494B of the Act.
The Tribunal was satisfied that the notification letter was sent to the applicant in accordance with the legislative requirements provided in s.494B(4) of the Act.
Section 494B of the Act specifies the methods by which the Minister may give a document to a person. Relevantly, s.494B(4) of the Act relevantly provides:
“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
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or
(iii) if the recipient is a minor--the last address for a carer of the minor that is known by the Minister.”
Section 494C of the Act specifies when a person is taken to have received a document given to an applicant by one of the methods prescribed by s.494B of the Act. Relevantly, s.494C(4) of the Act states provides:
“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
(b) in any other case--21 days after the date of the document.”
The Tribunal found that the notification letter was sent by prepaid post on 16 January 2012 from a place in Australia to the applicant at an address in Australia, being the last residential address provided to the first respondent by the applicant for the purpose of receiving documents.
Further, the Tribunal found that the deemed receipt provisions of s.494C(4) of the Act operated whether or not the post office had notified the applicant.
Accordingly, the Tribunal found that the prescribed period of 28 days expired on 22 February 2012. The Tribunal found that it had no jurisdiction to review an application lodged after that date and that the application was therefore not a valid application for review.
The proceeding before this Court
The applicant was unrepresented before this Court, although had the assistance of a Malayalam interpreter.
On 8 June 2012, the applicant attended a directions hearing before me. I explained to the applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The applicant confirmed that he wished to continue with the application. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.
At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
At the directions hearing, the applicant was also provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would follow for him if a costs order was made against him. Namely, that whilst ever any costs order remains unpaid it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected. The applicant then confirmed that he wished to continue with his application.
On 26 July 2012 the applicant filed an amended application.
At the commencement of the hearing, the applicant confirmed that he relied on the grounds contained in the amended application filed on 26 July 2012 as follows:
“1.The Tribunal had no jurisdiction to make the said decision because its ‘reasonable satisfaction’ was not arrived in accordance with the requirements of the Migration Act. The Tribunal decision was fundamentally influenced by not receiving evidence from Applicant at hearing. Therefore, the Tribunal denied the applicant procedural fairness.
2. The applicant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
3. The Second Respondent has failed to investigate applicant claim, specifically the grounds of persecution, in India. Therefore, the Tribunal decision dated 13 April 2012 was effected by actual bias constituting jurisdictional error. ”
Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
The applicant made the same oral submissions in support of grounds 1, 2 and 3. Namely, that he had not received a notice from the post office that a document had arrived for him. The applicant said that following an enquiry to the Department, he attended the post office on 27 February 2012 and received the notification letter after producing identification to the post office. The applicant said that he lodged his application for review on 28 February 2012 and that the Tribunal had not given him a chance to be heard and had not given proper consideration to his letter dated 28 March 2012 explaining his failure to lodge his review application on time.
However, the legislative framework as referred to by the Tribunal in its decision record is clear. Having been satisfied that s.66(1) and s.66(2) of the Act had been complied with, and having found that the applicant had been validly notified of the Delegate’s decision, the Tribunal is bound by the statutory regime it described for the lodging of a review of the Delegate’s decision.
There is no error in respect of the law referred to and applied by the Tribunal or its findings as to the validity of the notification letter. The applicant was deemed to have received notification of the Delegate’s decision on 25 January 2012. In those circumstances, the last day for lodging a valid application for review to the Tribunal was 22 February 2012.
The application for review was not lodged until 28 February 2012. Accordingly, the Tribunal was correct to find that it had no jurisdiction to review the Delegate’s decision.
Further, the Tribunal was correct in finding that the failure by the applicant to collect his letter from the post office did not affect the validity of the notification letter, even if the applicant had not received any notice from the post office to collect the document.
To the extent that ground 1 alleges that the applicant was not afforded procedural fairness by the Tribunal, such a complaint is not made out. The Tribunal must be satisfied that it has a valid application before it. Having found that the applicant’s review application was not a valid application, the Tribunal had no jurisdiction to consider the review application further. The Tribunal does not have any residual discretion under the Act to waive or extend the mandatory time limits provided.
In the circumstances, there was no denial of procedural fairness to the applicant.
To the extent that ground 3 asserts that the Tribunal failed to investigate the applicant’s claims and that its decision was biased, for the reasons above, such complaints are not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the explanation offered by the applicant for his failure to lodge his review application within the mandatory time limits and considered those explanations in light of the statutory regime by which it was bound. The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate:
Date: 1 February 2013
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