SZRLH v Minister for Immigration and Citizenship

[2013] HCASL 151

SZRLH

v

MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

[2013] HCASL 151
S92/2013

1. On 13 January 2010, the applicant arrived in Australia from India.  The applicant applied for a Protection (Class XA) visa on 28 September 2011.  He claimed to fear persecution from Muslims in India by reason of his Christianity.  A delegate of the first respondent refused the application on the basis that the applicant is not a person to whom Australia has protection obligations.  The applicant was notified of the decision and of his review rights by a letter dated 16 January 2012.

2. On 16 April 2012, the Refugee Review Tribunal ("the Tribunal") held that it did not have jurisdiction to review the delegate's decision because the applicant did not lodge an application for review within the prescribed time.  The applicant claimed that he did not receive the delegate's decision on time due to an error made by the post office. However, the Tribunal was satisfied that the contents of the delegate's decision notice complied with the requirements of s 66(2) of the Migration Act (Cth) 1958 ("the Act") and that the applicant was taken to have received the notice in accordance with s 494C.

3. On 1 February 2013, the Federal Magistrates Court of Australia (Emmett FM) dismissed an application for review of the Tribunal's decision.  Emmett FM held that the Tribunal had no jurisdiction to review the delegate's decision and further, that the Tribunal was correct in finding that the applicant's failure to collect his notification letter from the post office did not affect its validity, even if the applicant had not received any notice from the post office to collect the document.  Accordingly, the applicant's further grounds alleging a denial of procedural fairness, a failure by the Tribunal to investigate the applicant's claims and bias were not made out.

4. On 29 April 2013, the Federal Court of Australia (Robertson J) dismissed the applicant's appeal against the decision of Emmett FM.  The applicant's grounds of appeal were formulaic and did not engage with the findings made below.  Robertson J held that the Tribunal and Emmett FM correctly held that the Tribunal had no jurisdiction in respect of the application for review of the delegate's decision.

5. The applicant seeks special leave to appeal to this Court using submissions of a template variety which do not address the jurisdictional questions.  The applicant shows no reason to doubt the correctness of Robertson J's decision.  Special leave should be refused.

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
4 September 2013 P.A. Keane