SZRVF v Minister for Immigration
[2013] FCCA 764
•17 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRVF & ORS v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 764 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.48A, 66, 412, 414, 441A, 494B, 494C |
| Cheng v Minister for Immigration and Citizenship and Another (2011) 198 FCR 559; [2011] FCA 1290 Lee and Others v Minister for Immigration and Citizenship and Another (2007) 159 FCR 181; [2007] FCAFC 62 SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84 SZLBR v Minister for Immigration and Citizenship and Another (2008) 216 FLR 141; [2008] FMCA 154 |
| First Applicant: | SZRVF |
| Second Applicant: | SZRVG |
| Third Applicant: | SZRVH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2101 of 2012 |
| Judgment of: | Judge Barnes |
| Hearing date: | 17 June 2013 |
| Delivered at: | Sydney |
| Delivered on: | 17 June 2013 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The Application is dismissed.
The First and Second Applicants pay the costs of the First Respondent fixed in the sum of $3,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2101 of 2012
| SZRVF |
First Applicant
| SZRVG |
Second Applicant
| SZRVH |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 3 September 2012. The Tribunal found that it did not have jurisdiction in relation to a review application lodged by the Applicants outside the prescribed time limit.
The first named Applicant is a female citizen of China who is referred to for convenience as the Applicant. The second named Applicant is her partner and the third is their son born in Australia in 2011.
The Applicant applied for protection visas on 4 November 2011. On 12 January 2012 the Applicant lodged a change of address form with the Department which advised that their address for correspondence was a specified PO Box NSW 1835. In other words, no suburb was included in the notified address.
On 9 February 2012 the Department wrote to the Applicant and invited her to attend an interview. That letter was sent to the address provided for correspondence in the notice of change of address form except that the suburb “Auburn” was inserted in the address so that it read PO Box [number inserted] Auburn NSW 1835. The Applicant attended an interview with the Department on 9 March 2012.
On 15 March 2012 the Department wrote to the Applicant notifying her that her application for a protection visa had been refused. The letter was sent by registered post. It appears from the copies of that letter and an envelope included in the Court Book that this letter was also sent by registered post to PO Box [number inserted] Auburn NSW 1835.
On 10 July 2012 the Tribunal received by facsimile an application for review of the delegate’s decision, in which I note the Applicant provided a postal address of PO Box [number inserted] Auburn NSW 1835. The Applicant sought review of the delegate’s decision of 15 March 2012. She referred to receipt of the delegate’s letter by post and annexed a copy of the delegate’s decision. The application for review bears an April 2012 date.
The Tribunal wrote to the Applicant on 19 July 2012 advising of its preliminary view that the application was not valid as it was lodged outside the relevant time limit. The Applicant was given the opportunity to make comments on whether she had made a valid application.
The Applicant responded by letter faxed to the Tribunal dated 13 August 2012. She referred to her protection visa application in November 2011 and stated:
Later immigration sent me the letter to refuse my application on 15/03/2012 and I was given 28 days plus 7 working days to review. I sent out my original review application form by normal post on 10/04/2012.
The Applicant claimed that she then waited, but heard nothing from the Tribunal. She called the Tribunal on 9 July 2012, but found out that it had never received her review application. She faxed her review application to the Tribunal on 10 July 2012. She claimed that as it was not her fault, the Tribunal should take responsibility and review her application.
In its reasons for decision the Tribunal set out that the essential question was whether the Tribunal had jurisdiction. This was said to depend on whether the application lodged on 10 July 2012 was a valid application under s.412 of the Migration Act 1958 (Cth) (the Act).
The Tribunal summarised the law in relation to applications for review, referring to the various provisions of the Migration Act in that respect. In particular, ss.412 and 414 which provide the Tribunal has jurisdiction if a valid application is made for review of an RRT-reviewable decision, and s.412(1)(b) and reg.4.31(2)(b) of the Migration Regulations 1994 (Cth) which provide that such an application for review (in the circumstances of the Applicant) must be lodged at a registry of the Tribunal within a period not later than 28 days after the day on which notice is received.
The Tribunal explained that an application sent to the Tribunal by post or fax is taken to be given to the Tribunal when received at a registry of the Tribunal under reg.4.31(4) and that there is no provision for the Tribunal to grant an extension of time.
It is apparent from the material before the Court, including the Tribunal reasons for decision, that the Tribunal made enquiries with the Department to determine whether the decision notice was sent by pre-paid registered post within three working days of the date of the letter. The Department obtained evidence from Converga NSW confirming that the delegate’s letter was dispatched within three working days of its date.
The Tribunal found that the delegate’s decision notice complied with the requirements of s.66 of the Act and that notice of the decision was, as required under s.494B of the Act, dispatched within three working days of its date to the last address for service provided to the Minister by the recipient for the purposes of receiving documents in accordance with s.494B(4).
The Tribunal addressed the fact that the last address provided to the Department by the Applicant (in the change of address form) did not include the suburb Auburn, whereas the notification letter had been sent to an address that included the suburb of Auburn. It observed that there had been no claim from the Applicant that the address on the notification letter was incorrect or that they did not receive the decision within the deemed receipt period. It also noted that the postal address the Applicant provided in her review application included the suburb Auburn.
The Tribunal accepted the Applicant’s evidence that she received the notification letter in time to make a valid application, and that she had inadvertently omitted the suburb Auburn in the change of address form. It found that by adding the suburb to the address details the delegate had nonetheless sent the decision notification to the Applicant’s “correct, actual and real address” constituting the last postal address provided to the Minister by the Applicant for the purpose of receiving documents.
It found that the Applicant was taken to have received the delegate’s decision on 26 March 2012, being seven working days after the date of the notice. Hence the prescribed period of 28 days for lodging the review application commenced on 26 March 2012.
The Tribunal addressed the Applicant’s assertion that she first sent a review application to the Tribunal by standard mail on 10 April 2012. The Tribunal stated that it did not have any record of ever receiving such mail. It also referred to the Applicant’s claim that she rang the Tribunal on 9 July 2012, but stated that it did not keep records of pre-lodgement communications with prospective applicants and so could not confirm whether or not that telephone conversation took place as claimed.
In any event, the Tribunal found that the act of posting an application did not equate with lodgement and that the application “must be physically received at a registry of the Tribunal for lodgement to have taken place”.
The Tribunal found that the application for review was lodged on 10 July 2012 when received at the Tribunal by fax. However, as the Applicant had been properly notified of the delegate’s decision and was taken to have been notified on 26 March 2012, the prescribed period of 28 days within which the application for review could be lodged had ended on 23 April 2012. The Tribunal concluded that as the application was not received until 10 July 2012 it was outside the prescribed period and the application was not valid. The Tribunal pointed out that it did not have any discretion to accept an application for review lodged outside the prescribed period. It found that it had no jurisdiction.
The Applicant sought review by application filed in this Court on 26 September 2012. In the Application the Applicant expressed disagreement with the Department decision and the Tribunal’s decision and claimed there had been a failure to consider the risk if she returned to her country of origin. Beyond this, the Applicant contended that she had applied for review within 28 days by sending a review application to the Tribunal by normal mail. The application reiterated that the Applicant did not receive any information and when she contacted the Tribunal was advised that it had not received her application. She took issue with the fact that although she gave a detailed explanation to the Tribunal it did not accept her review application. She contended that this was not “fair” and that she was a “victim”.
Insofar as the Applicant made assertions in relation to whether or not she was entitled to a protection visa based on her circumstances in China, the decision of which review is sought is the Tribunal decision that it had no jurisdiction. There is no consideration in the Tribunal decision of the substance of the Applicant’s claims to be a refugee because it decided that it had no jurisdiction. Of itself that does not establish jurisdictional error.
The primary issue in these proceedings is whether there is any jurisdictional error in the Tribunal’s finding that it had no jurisdiction.
This case raises an issue which not infrequently causes applicants concern. There is no provision in the Migration Act and Regulations for deemed notification to the Tribunal for the benefit of an applicant. As the Tribunal pointed out, the Migration Regulations provide that an application posted or transmitted to it by electronic facsimile transmission is not to be taken to have been lodged until it is received at a registry of the Tribunal. This is in contrast to the position under the Act and Regulations in relation to notification of an applicant by the Minister as well as by the Tribunal. However such concerns, while understandable, do not establish jurisdictional error.
The initial question in this case is whether the delegate’s decision was notified or deemed to be notified in accordance with the applicable provisions of the Migration Act and Regulations. The Tribunal correctly set out the relevant law. As the First Respondent submitted and the Tribunal recognised, pursuant to s.66 of the Act the delegate’s decision must be notified by a prescribed method. Regulation 2.16 sets out prescribed methods. In this case, as a decision not to grant a visa, the notification had to be by one of the methods specified in s.494B of the Act. The only method in issue in this case is specified in s.494B(4) of the Act which provides for a document to be sent by pre-paid post within three working days of its date to the last address for service or the last residential or business address provided to the Minister by the Applicant for the purpose of receiving documents. In this case the delegate’s decision was sent by letter dated (Thursday) 15 March 2012. It was dispatched on Monday 19 March 2012. As the Tribunal found, that was within three working days.
The Tribunal also found that the delegate’s decision was sent to the last address for service provided to the Minister by the Applicant for the purpose of receiving documents. The address the Applicant provided in the change of address form was PO Box .… NSW 1835, whereas the letter notifying her of the delegate’s decision inserted the suburb Auburn in the address. The First Respondent submitted that, as was found by the Tribunal, the address provided by the Applicant mistakenly omitted the suburb and that the Department corrected this omission when it sent the delegate’s decision to the Applicant. It was contended that the difference between the addresses was of no consequence and that the letter was still sent to the last address provided by the Applicant.
Reliance was placed on the decision of Cameron FM in SZOQY v Minister for Immigration & Anor [2011] FMCA 120 where the opposite occurred. In SZOQY an applicant had given an address of 28 The Boulevard Street, Lidcombe whereas the Tribunal sent its hearing invitation to 28 The Boulevard, Lidcombe. The Court was of the view that there was no jurisdictional error in circumstances where the address to which the hearing invitation was sent was the applicant’s actual and correct address (based on the applicant’s deemed admission following service of a notice to admit facts in relation to his address). However SZQOY involved an invitation to a hearing and whether addressing the hearing invitation in terms slightly different to the address which the applicant had identified in his review application denied him “his right to a real and meaningful invitation to appear before the Tribunal” (at [16]). His Honour also found that the address used amounted to substantial compliance with s.441A(4)(c) by the Tribunal and that such compliance satisfied that provision. However while s.441A(4)(b) is analogous to s.494B(4), SZQOY concerned s.441A(4) as it applied to notification by the Tribunal, rather than the issue of whether the delegate had notified an applicant of his or her decision in the prescribed way within s.66(1) such that the Tribunal had no jurisdiction.
I did not have the benefit of argument from the Applicant as to whether there was substantial compliance with s.494B(4) and whether this would suffice. No authority directly in point was cited, although there is authority to the effect that a postcode is not an essential part of the address (see SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84 at [11] in relation to a Tribunal letter to an Applicant and SZLBR v Minister for Immigration and Citizenship and Another (2008) 216 FLR 141; [2008] FMCA 154). In this case what was in issue was the suburb, not the postcode.
The address for correspondence the Applicant nominated contained a post office box number and a New South Wales postcode. No issue is taken with the fact that the Applicant used a post office box address as her address for service (see Von Kraft v Minister for Immigration & Anor [2007] FMCA 244). While no suburb was included in the notice of change of address form, the Department inserted a suburb in the delegate’s letter. The Applicant received the notification and also the earlier letter sent to her with the suburb inserted. She inserted the suburb “Auburn” in her review application form and there is no evidence that such address (with the inclusion of Auburn) was not the Applicant’s actual and correct address.
There was no suggestion that the address the Applicant provided was not an “address for service”. It may be that in this case the particular suburb was not an essential part of the identification of the physical location to which documents were to be sent provided the postcode sufficed to indicate a physical location or address. On that approach the lack of a suburb would not affect the validity of the address as the place at which the Applicant could be reached for the purpose of formal delivery of documents by the delegate and hence as her address for service.
While the delegate’s letter was in fact sent to the Applicant’s correct actual address, what is in issue is whether given that it is not in dispute that the addition made by the Department to the address she provided accorded with the postcode she had provided, the Department complied with the requirements of s.66(1) of the Act by notifying her of its decision by letter sent to the physical location that was, apart from the addition of the word Auburn, the address for service provided to the Department by the Applicant.
On the limited submissions and evidence before the court and given that there is no suggestion that the addition of the suburb name rendered the address incorrect I am of the view that in the particular circumstances of this case there has been compliance with s.494B(4) by the delegate such as to constitute notification of the delegate’s decision in the prescribed way as required by s.66(1) of the Act. The letter from the delegate was dispatched to the Applicant’s last address for service notwithstanding the addition of the suburb name to the address provided by the Applicant which had identified her suburb only by postcode.
In any event, regard may be had to the operation of s.494C(7) of the Act. Under s.494C(7), if the Minister purports to give a document to a person in accordance with one of the methods specified in s.494B but makes an error in doing so and the person nonetheless receives the document or a copy of it, the person is taken to have received the document at the time mentioned as if the Minister had given the document to the person without making an error in doing so unless the person can show that he or she received it a later time in which case the person is taken to have received it at that time.
In this case, in her letter to the Tribunal and application for review the Applicant clearly stated that she had received the delegate’s decision. She stated that she sent her application for review to the Tribunal by normal post on 10 April 2012. Hence if the inclusion of Auburn in the address amounted to a technical error such that there was not strictly speaking, compliance with s.494B(4) of the Act, nonetheless the Applicant actually received the notification of the delegate’s decision by, at the latest, 10 April 2012. On this basis the 28 day period for lodging an application to the Tribunal would have ended on 8 May 2012 and the application would still have been out of time.
It is the case that the Tribunal did not have regard to s.494C(7). This was because it was satisfied that the requirements of s.494B(4) were met. There is no argument in this case that the Tribunal was obliged to consider s.494C(7) in such circumstances (and see VOAW v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 422; [2003] FCAFC 251 and Cheng v Minister for Immigration and Citizenship and Another (2011) 198 FCR 559; [2011] FCA 1290).
I am satisfied having regard to the operation of s.494C(7) that the time for lodging the review application had expired prior to the time at which the Applicant lodged her application on 10 July 2012. As the Tribunal correctly observed, sending a document by post does not amount to lodgement at the Tribunal and there is no evidence that an application for review was lodged (that is, received at a Tribunal registry) prior to 10 July 2012. Hence the Tribunal was correct in its conclusion that the application was lodged out of time and that it did not have jurisdiction.
Thus, even if the Tribunal was in error in its approach to s.494B(4) of the Act I would, were it necessary to do so, regard this as a case in which it would be appropriate and proper to refuse relief (see Lee and Others v Minister for Immigration and Citizenship and Another (2007) 159 FCR 181; [2007] FCAFC 62 and more recently in MZYUL v Minister for Immigration and Citizenship [2013] FCA 584). It would be futile to remit the matter to the Tribunal. No useful result could ensue. As the Tribunal found, the application for review was lodged out of time and hence the Tribunal had no jurisdiction.
I understand that the Applicant feels aggrieved given that she was advised in the notification letter that an application for review had to be “made” to the Tribunal within 28 days after she was taken to have received the notification, and that an application could be posted or faxed. She claimed she posted her review application to the Tribunal within the prescribed time. However, as indicated, what the Act requires is lodgement, that is receipt or arrival at a Tribunal registry. Neither the Tribunal nor the Court has any power or jurisdiction to extend the time for making a review application. Nor can the Tribunal treat an application as if it had been lodged in time if that was not what occurred.
It may be that such concerns can be raised by the Applicant with the Minister, but insofar as she seeks to raise what might be seen as compassionate circumstances in these proceedings, the Court has no discretion either to compel the Tribunal to determine an application where it does not have jurisdiction or to take such matters into account.
Accordingly, the application should be dismissed.
RECORDED : NOT TRANSCRIBED
The Applicants have been unsuccessful and the Minister seeks that the First and Second Applicants, the adult Applicants, pay costs in the sum of $3,500.
The First Applicant told the Court that they had no income and no work permit and it would be very difficult. However, the Applicants’ lack of funds is not a reason for departing from the normal principle that unsuccessful applicants should meet the costs of the first respondent although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.
The amount sought is appropriate in light of the nature of this and other similar cases.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 9 July 2013
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