SZSUF v Minister for Immigration
[2013] FCCA 1963
•12 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSUF v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1963 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.61, 411, 412, 494B, 494C |
| SZOQY v Minister for Immigration & Anor [2011] FMCA 120 |
| Applicant: | SZSUF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 890 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 12 November 2013 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2013 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 890 of 2013
| SZSUF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
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 4 April 2013. The Tribunal found that it did not have jurisdiction to review a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The background to these proceedings is that the Applicant, who claimed to be a citizen of the People's Republic of China, arrived in Australia as the holder of a student visa in 2007. In August 2011 she applied for a protection visa. In her application for a protection visa she provided a residential address described as Unit 31 at a specified street number, George Street, Central Sydney, NSW 2000. She indicated that her postal address was the same as her residential address.
There is nothing in the material before the Court to indicate that the Applicant appointed or notified the Department of the appointment of a migration agent. Indeed, on the form she indicated that she did not receive assistance in completing Part B of the protection visa application form.
On 21 October 2011 a delegate of the First Respondent refused the application for a protection visa on the basis, in essence, that the Applicant had not substantiated her claim of having a well-founded fear of persecution for reason of her religion.
The delegate recorded that an invitation to attend an interview had been sent to the Applicant at the nominated postal address listed in her protection visa application, that the Department attempted to contact the Applicant via telephone to inform her of the scheduled interview and that there was no response or reply. The delegate also recorded that it had been confirmed that the invitation letter had been delivered to the Applicant's nominated address but not collected by the Applicant. As the Applicant had not attended the interview the delegate was not able to be satisfied that her claims in her written application were true.
The Courtbook contains a copy of a letter dated 21 October 2011 bearing a registered post sticker enclosing the notification of refusal of the application for a protection visa. Relevantly, that letter is addressed to the Applicant at the unit number and street address provided in her original application. However the suburb is described as Sydney, NSW 2000.
The Applicant did not seek review of the delegate's decision until she lodged an application with the Refugee Review Tribunal on 5 February 2013. In that application she provided a residential address which contained a different unit number but the same street number in what was described as George Street, Sydney, NSW 2000.
On 27 February 2013 the Tribunal wrote to the Applicant raising an issue as to whether her application was a valid application, as it had not been lodged within the time limit of 28 days from the date on which she was taken to be notified of the delegate's decision. She was informed that the primary decision was posted to her on 21 October 2011, that she was taken to have been notified on 1 November 2011 and that the last day for lodging the application for review was 29 November 2011, but that the review application had not been received until 5 February 2013. The Applicant was given the opportunity to comment on whether she had made a valid application.
She responded on 21 March 2013 claiming that she applied for a protection visa through a person she believed was migration agent who had helped her to lodge the application, that she had “never been informed” that the Department refused her application and that she “personally ha[d] never received a letter from the department”. She claimed she had given the Department “the correct address”.
In its decision of 4 April 2013 the Tribunal found that “it ha[d] no jurisdiction to review the [delegate’s] decision as the application was not made in accordance with the relevant legislation”. In a very brief decision the Tribunal referred to the requirements of s.412(1)(b) of the Migration Act 1958 (Cth) and reg.4.31 of the Migration Regulations 1994 (Cth) that any application for review be made within 28 days after the Applicant was notified of the delegate’s decision in accordance with the statutory requirements. The Tribunal found, without elaboration, that the material before it indicated that the Applicant was notified of the decision dated 21 October 2011 under cover of letter dated 21 October 2011 which was despatched by registered post on 21 October 2011. It might have been helpful had the Tribunal explained the basis on which it came to that view, but the First Respondent has put evidence before the Court addressing these matters to which I will return.
The Tribunal referred to its letter of 27 February 2013 to the Applicant and the Applicant's response. It concluded it was satisfied she was notified of the delegate’s decision in accordance with the statutory requirements and found that, in accordance with s.494C of the Migration Act, she was taken to have been notified of the decision on 1 November 2011 so that the prescribed period for lodging the review application ended on 29 November 2011. As the review application was received on 5 February 2013, which was outside that period, the Tribunal found that it had no jurisdiction.
The Applicant sought review of the Tribunal decision by application filed in this court on 30 April 2013. In her application she took issue with the merits of the delegate's decision and what she said was the Tribunal's decision in not considering she would be in danger if she returned. However the decision the subject of these proceedings is the Tribunal decision. It did not address the merits of her claims. Further, insofar as the Applicant also reiterated her claims to fear persecution in China such claims do not establish jurisdictional error on the part of the Tribunal.
The Applicant also claimed that she never received the delegate’s decision, although she provided the Department with the correct address. She claimed that it was unfair that she lost her chance for Tribunal review. She hoped the Court could “investigate” her review application. When this matter came before the Court for hearing on 14 October 2013 the Applicant reiterated that she did not receive the notification letter from the Department and claimed that her agent had not told her anything.
I raised with the solicitor for the First Respondent an issue as to whether the delegate's notification letter had been sent to the address for service provided by the Applicant in connection with her protection visa application. While there was evidence in the form of the letter of notification, the additional evidence in an affidavit of Alexandra McCaughan affirmed on 2 October 2013 was limited to evidence about the fact that the Tribunal had asked the Department for evidence from Converga (the entity that organised the departmental postal arrangements) that the notification letter was dispatched within three working days of its date. In return, the Tribunal was provided with postal records that indicated that a letter was sent to a person of the Applicant's name bearing the registered post number on the letter of notification. However the Converga documentation provided to the Tribunal showed only the suburb of Sydney NSW 2000 but not the street address or, indeed, the unit number to which such notification was sent. There was no evidence before the Court as to the address used on the envelope in which the letter was posted. In addition, in her protection visa application the Applicant described her suburb as “Central Sydney, NSW 2000” whereas the notification letter was addressed to “Sydney, NSW 2000”.
The matter was adjourned to enable the First Respondent to address these issues. In addition to the affidavit of Ms McCaughan, the First Respondent now relies on an affidavit of Sharon Anne Burnett affirmed on 16 October 2013 as well as supplementary submissions. Relevantly, annexed to the affidavit of Ms Burnett is a copy of an envelope addressed to the Applicant at the same address as the address on the delegate's decision notification letter, and bearing a registered post prepaid label with the same number on the copy of the notification letter contained in the Courtbook. In addition, Ms Burnett’s affidavit evidence in relation to the results of a search in relation to Australian Post postcodes revealed that there were no results for Central Sydney and that the applicable district for the postcode 2000 was Sydney.
It is necessary to consider whether any jurisdictional error is apparent in the Tribunal decision that it had no jurisdiction to review the delegate’s decision. The initial question is whether the delegate's decision was, as the Tribunal concluded, notified or deemed to be notified in accordance with the applicable provisions of the Migration Act and Regulations. As indicated, the Tribunal's discussion of this issue was brief in the extreme.
As the First Respondent submitted and the Tribunal found, an application for review of an RRT-reviewable decision (as this was under s.411 of the Act) must be given to the Tribunal within the prescribed period, which in this case is 28 days commencing on the day the Applicant is notified of the decision (see s.412(1)(b) and reg.4.31). The delegate's decision must be notified by a prescribed method under s.66 of the Migration Act. Under reg.2.16(3) of the Migration Regulations notification of a decision not to grant a visa must be by one of the methods specified in s.494B of the Act. Section 494B(4) provides for a document to be sent by prepaid 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 purposes of receiving documents.
In this case the Tribunal found that the Applicant was notified of the decision dated 21 October 2011 under cover of a letter dated that day and dispatched by registered post that day. I am satisfied on the evidence before me that the notification letter dated 21 October 2011 was dispatched by registered post on 21 October 2011 and sent to the address provided by the Applicant, except that it did not include the word "Central" in the description of the suburb. Rather, it described the suburb as Sydney (consistently, I note, with the suburb provided by the Applicant in her subsequent application for review).
The First Respondent contended that the Applicant was properly notified by the letter being sent to the correct district in accordance with Australia Post postcode numbering. The Applicant did not dispute that the suburb Sydney was the correct address for service and her residential address at the relevant time. However, this is not a case in which the Applicant has admitted to having received the notification letter. Hence no issue arises as to the operation of s.494C(7) of the Act.
The omission of the word “Central” in the description of the suburb is not such that the Department failed to comply with s.494B(4) in sending its notification letter to the last address for service or last residential address provided by the Applicant. I am satisfied on the evidence before the court, particularly the affidavit of Ms Burnett, that the word “Central” was superfluous and that the correct postal address was “Sydney, NSW 2000”. The fact that the notification letter omitted the word "Central" is an omission of no consequence, as the notification was sent to the Applicant’s correct address (see similarly SZOQY v Minister for Immigration & Anor [2011] FMCA 120 in which an applicant had given an address of 28 The Boulevard Street, Lidcombe whereas the Tribunal sent its hearing invitation to the correct address of 28 The Boulevard, Lidcombe).
On the material now before the Court I am satisfied that the Tribunal correctly concluded that the Applicant was notified of the delegate’s decision in accordance with the requirements of the Act and Regulations. Hence, in accordance with s.494C of the Act, she was taken to have been notified on 1 November 2011 and her application for review of the delegate's decision was made outside the time for review prescribed under the Act and Regulations. The Tribunal did not fall into error in concluding that it had no jurisdiction.
Insofar as the Applicant endeavoured to provide an explanation for why her application was lodged out of time, the reasons for the late filing do not assist her as the Tribunal does not have any discretionary power to override the prescribed time limits. Nor does the Court have any such discretion.
As no jurisdictional error has been established the application must be dismissed.
RECORDED: NOT TRANSCRIBED
The Applicant has been unsuccessful. There is nothing in the circumstances of this case to warrant a departure from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent. The Applicant's concern about the lack of an opportunity to have the merits of her claim for protection determined by the Tribunal is not such as to warrant a departure from the normal principle. Having regard to the nature of this and other similar matters and the issues apparent on the material before the Court, I am of the view that an appropriate amount is the sum of $5,000.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Barnes.
Associate:
Date: 27 November 2013
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