SZRQB v Minister for Immigration - [2012] FMCA 889

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRQB v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 889

MIGRATION – Review of decision of Refugee Review Tribunal – whether the applicant was validly notified of a decision of a Delegate of the Department of Immigration and Citizenship refusing him a protection visa application – whether the Tribunal erred in finding that it had no jurisdiction to consider a review of the Delegate’s decision.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 66, 91R, 474, Pt.8
Migration Regulations 1994 (Cth), Sch.1

Applicant:

SZRQB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1501 of 2012

Judgment of:

Emmett FM

Hearing date:

21 September 2012

Date of Last Submission:

21 September 2012

Delivered at:

Sydney

Delivered on:

21 September 2012

REPRESENTATION

The applicant appeared in person and was assisted by an interpreter in the Mandarin language.

Counsel for the Respondents:

Mr H Bevan

Solicitors for the Respondents:

Minter Ellison

ORDERS

The proceeding before this Court, commenced by way of application filed on 11 July 2012, is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $6,471.

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 1501 of 2012

SZRQB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 29 June 2012 and handed down on that day.
The applicant claims to be a citizen of the People’s Republic of China (“China”).
The issues in this case are whether the applicant was validly notified of the decision of a delegate of the first respondent (“the Delegate”), dated 20 July 2010, refusing him a protection visa application and whether the Tribunal erred in finding that it had no jurisdiction to consider a review of the Delegate’s decision. These issues are considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.
Prior to considering the proceeding before this Court, these reasons provide the relevant procedural background and a summary of the Tribunal’s review and decision.

Background

The applicant arrived in Australia on 29 April 2007 having departed legally from China on a passport issued in his own name and with a Student visa that was valid until 15 December 2009, after which time the applicant became an illegal immigrant.
On 22 March 2010, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act. The applicant provided a statement in support of his application.
The applicant completed a Form 866B, being the prescribed form required for a protection visa application, pursuant to It.1401 of Sch.1 of the Migration Regulations 1994 (Cth). In that prescribed Form 866B, the applicant indicated that all written communications about his application should be sent to his migration agent. The prescribed Form 866B informed the applicant that he must complete a Form 956 and attach it to his prescribed Form 866B.
Form 956 is not a prescribed form and is titled “Appointment of a migration agent or exempt agent or other authorised recipient”. Form 956 requests the details of, in this case, the applicant’s migration agent, including the migration agent’s postal address. Form 956 also provided an opportunity for the migration agent to provide details of an email address, which was duly given. Form 956 was signed by both the migration agent, Weiming Qian, and the applicant.
Part F of Form 956 provides an opportunity for the applicant to authorise his migration agent to act on his behalf and receive communication about his application in relation either to “all matters” or “for a specific matter only”. For whatever reason, Part F was not completed.
On 20 April 2010, the Department wrote to the applicant’s migration agent acknowledging receipt of the applicant’s protection visa application. That letter stated that the applicant had authorised the applicant’s migration agent as the person authorised by the applicant to receive correspondence on behalf of the applicant.
On 23 June 2010, the Department wrote to the applicant’s migration agent and to the applicant at the applicant’s current address, inviting the applicant to attend an interview with the Delegate on 14 July 2010. That letter also stated that the applicant had authorised the applicant’s migration agent as the person authorised by the applicant to receive correspondence on behalf of the applicant. On 14 July 2010, the applicant attended an interview with the Delegate. However, the letter addressed to the applicant containing that invitation was returned to the Department unclaimed on 29 July 2010.
On 20 July 2010, the Department again identified the applicant’s migration agent attaching a letter addressed to the applicant notifying him of the Delegate’s refusal to grant him a protection visa. Relevantly, the Department’s letter also identified the applicant’s migration agent as the person authorised by the applicant to receive correspondence on behalf of the applicant.
On 5 September 2010, the applicant lodged an application for review with the Refugee Review Tribunal. That application again identified the applicant’s migration agent as his advisor authorised to act for the applicant in relation to the review application.
On 5 September 2010, the applicant’s migration agent also wrote to the Refugee Review Tribunal noting that the applicant’s application to seek review of the Delegate’s decision had expired and that the applicant’s failure to lodge a review application in time was due entirely to the migration agent.
On 14 September 2010, the Refugee Review Tribunal wrote to the applicant’s migration agent enclosing a letter to the applicant inviting comment on the fact that, in the Refugee Review Tribunal’s view, the review application was not a valid application because it was not lodged within the relevant time limit. The letter informed the applicant that the last day for lodging an application for review was 26 August 2010. That letter was sent to the new address of the applicant’s migration agent provided to the Department on 5 September 2010.
On 14 October 2010, the Department wrote to the applicant’s migration agent attaching the Refugee Review Tribunal’s decision record dated 13 October 2010. The Refugee Review Tribunal found that it had no discretion to accept an application for review lodged outside the prescribed timeframe pursuant to s.66 of the Act and that there was no provision for extension of time in which to lodge an application for review, even in cases where compassionate or extenuating circumstances may exist. The Refugee Review Tribunal found that the applicant was taken to have been notified on 29 July 2010 and that the prescribed period of 28 days within which the application for review could be lodged ended on 26 August 2010. The Refugee Review Tribunal noted that the application for review was not received by the Refugee Review Tribunal until 5 September 2010 after the prescribed period had expired.
Accordingly, the Refugee Review Tribunal determined that the application for review was not valid and that the Refugee Review Tribunal had no jurisdiction to conduct a review of the Delegate’s decision.
On 18 April 2012, the Department wrote to the applicant informing him that the Department had found that the applicant was not correctly notified of the Refugee Review Tribunal’s decision and, accordingly, was now the holder of a bridging visa valid for 28 days. No reasons were given in the Department’s letter.

The Tribunal’s review and decision

On 3 May 2012, the applicant lodged an application for review of the Delegate’s decision with the Tribunal. It is that Tribunal’s decision that is the subject of judicial review by this Court. The applicant again identified, Weiming Qing, as his representative and authorised migration agent to receive correspondence from the Tribunal.
On 15 May 2012, the Tribunal wrote to the applicant’s migration agent attaching an invitation to comment on the validity of the applicant’s application for review, given that the last date for lodging the application for review was 26 August 2010 and the present application was not received until 3 May 2012. On 6 June 2012, the applicant’s migration agent wrote to the Tribunal stating that the migration agent was sick in July and August 2010 and had forgotten to lodge the applicant’s review application “on time”.
The Tribunal found that the applicant was validly notified on 20 July 2012 of the Delegate’s decision in accordance with the statutory regime and that the decision notification was therefore effective.
The Tribunal found that it did not have discretion to accept an application for review lodged outside the prescribed period, even in circumstances where it was the migration agent’s fault.
The Tribunal found that the applicant was taken to have been notified of the Delegate’s decision on 29 July 2010 and that the prescribed period of 28 days within which to lodge an application for review of the Delegate’s decision ended on 26 August 2010. The Tribunal found that the prescribed period had expired in circumstances where the current application for review was not received by the Tribunal until 3 May 2012.
The Tribunal concluded that the application for review was not valid and that the Tribunal had no jurisdiction to review the Delegate’s decision.
On 29 June 2012, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 11 July 2012, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

The proceeding before this Court

The applicant was unrepresented before this Court, although had the assistance of an interpreter in the Mandarin language.
On 3 August 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.
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 remained 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. I then confirmed with the applicant that he wished to continue with his 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 commencement of the hearing, the applicant confirmed that he had not filed any amended application or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.
The applicant read an affidavit, sworn by him on 30 August 2012 and filed on 31 August 2012. The contents of that affidavit are as follows:
“1. My health is in very bad condition, especially the high blood pressure, I have needs large amounts of medicine to control.
2. I think that the Tribunal should give me chance for review.
3. I hope my case could be remitted back to RRT.
4. My family suffered persecution in China, if I go back, I would be caught and to be persecuted.”
The applicant confirmed that he relied on the grounds contained in the application filed on 11 July 2012 as follows:
“1. My agent was sick in July and August 2010 so she did not lodge my application on time. RRT should give me a chance for review as I knew my friend who lodged application to RRT out of time, but RRT gave him a chance for review. RRT did not give me a chance for review, it is not fair.
2. An officer in the Department gave me a chance for review so they released me out of detention centre. I think that RRT should give me a chance for review.
3. Now I am in bad health. I have high blood pressure because of worrying to go back to China. I hope to be protected by the Australian Government.”
Plainly, neither the grounds nor the applicant’s affidavit identifies a jurisdictional error in the Tribunal’s decision capable of review by this Court. The applicant had no submission to make in support of his application for judicial review other than that his migration agent lodged his application for review of the Delegate’s decision out of time.
I accept the Minister’s submission in relation to the Tribunal’s compliance with the statutory regime in notifying the applicant of the Delegate’s decision on 20 July 2010. Counsel for the Minister, Mr Bevan, usefully summarised the statutory regime and the Tribunal’s compliance in his written submissions as follows:
“5. On 20 July 2010, the Minister’s delegate decided not to grant the Applicant a protection visa.[1] Under s 411(1)(c) of the Migration Act 1958, this was an ‘RRT-reviewable decision’.
[1] The delegate’s decision is at CB 81-89.
6. By letter dated 20 July 2010, the Applicant was notified of the refusal of his application for a protection visa.[2] This letter complied with the notification requirements of s 66 of the Migration Act in that it:
[2] See CB 67-80.
(a) specified s 36(2) as the criterion for the visa which the Applicant did not satisfy;[3]
[3] Section 66(2)(a).
(b) gave written reasons why the criterion was not satisfied;[4]
[4] Section 66(2)(c). As mentioned, the delegate’s reasons were enclosed at CB 81-89.
(c) stated the Applicant’s rights to review.[5]
[5] Section 66(2)(d). The letter, together with the brochure at CB 76-80, amply satisfies these requirements: see, for example, SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129 (Emmett, Buchanan and Nicholas JJ); Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424 (Jagot J).
7. The letter was given to the Applicant in accordance with s 494B(4) of the Migration Act in that it:
(a) was dispatched within 3 working days of the date of the document;[6]
(b) by registered (that is to say, “pre-paid”) post;[7]
(c) to the last address for service provided to the Minister by the Applicant for the purposes of receiving documents (namely, the Applicant’s migration agent as his “authorised recipient”).[8]
8. By s 494D(2), the Minister is taken to have given the letter to the Applicant by sending it to his authorised recipient.
9. By s 494C(4)(a), the Applicant is taken to have received the letter 7 working days after the date of the document – that is, on 29 July 2010.
10. By s 412(1)(b) and reg 4.31(2)(b) of the Migration Regulations 1994, an application to the Tribunal for review of the delegate’s decision had to be given to the Tribunal by 26 August 2010 (being 28 days after the notification of the decision).
11. On any view, the applications to the Tribunal in this case were lodged outside the prescribed time – that is, on 5 September 2010[9] and, relevantly for the present proceeding, on 4 May 2012.[10]”
[6] Section 494B(4)(a). See SCB 15-16.
[7] Section 494B(4)(b). See CB 67 and SCB 15.
[8] Section 494B(4)(c)(i). See the covering letter at CB 67 addressed to the Applicant’s migration agent. The Applicant appointed his migration agent on 24 March 2010 (see CB 37-40) and had directed all written communications about his application to be sent to his migration agent (see CB 34, Question 18).
[9] SCB 1-4.
[10] CB 91-98.
Mr Bevan, in accordance with his duty to the Court, properly directed the Court’s attention to the omission in the Form 956 referred to in [9] above.
However, I accept Mr Bevan’s submission that the applicant clearly identified in his protection visa application, being the prescribed Form 866B, that he had a migration agent to whom all written communications should be sent. Form 956, which is not a prescribed form, is clearly for the purpose of providing the contact details of any such appointed migration agent and any limitation that the applicant may seek to place on the migration agent’s authority. Form 956 did not place any limit on the migration agent’s authority.
Moreover, in the Department’s letter dated 20 April 2010 acknowledging the receipt of the applicant’s protection visa application, the Department clearly stated its understanding that the applicant had authorised the migration agent to receive correspondence on his behalf. Similar comments were made in the Department’s letter dated 23 June 2010, inviting the applicant to an interview with the Delegate; and, the Department’s letter notifying the applicant’s migration agent of the Delegate’s refusal to grant the applicant a protection visa. No challenge was ever received by the Department to the authority of the applicant’s migration agent to receive such correspondence.
Further, the only evidence before this Court of a letter sent by the Department to the applicant at his current address inviting him to attend an interview with the Delegate, was returned to the Department unclaimed. As stated above, the Department’s invitation was also sent to the applicant’s migration agent and the applicant attended the interview with the Delegate. In the circumstances, the only reasonable inference open to the Court, and the inference I draw, is that at all times, the applicant’s migration agent was authorised to receive all written communications about his protection visa application
In the circumstances, I am satisfied that the Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave.
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-four (44) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 21 September 2012