SZTAU v Minister for Immigration

[2014] FCCA 115

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTAU v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 115

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – application to extend time – no merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 425, 425A, 441A, 441C, 476, 477

NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
SZMHQ v Minister for Immigration and Citizenship & Anor [2008] FCA 1840

Applicant: SZTAU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1568 of 2013

Judgment of: Judge Manousaridis

Hearing date: 8 November 2013

Delivered at: Sydney

Delivered on: 29 January 2014

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr Knackstredt

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act is dismissed.

2. The applicant pay the costs of the application to be assessed by the Court at the time these orders are pronounced.

3. The title of the first respondent recorded in the application is amended to “Minister for Immigration and Border Protection”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1568 of 2013

SZTAU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 27 August 2012 the applicant applied to the first respondent (Minister) for a protection visa. In her written application the applicant nominated an address in Ashfield as her residential and postal address (Ashfield address).

2. By letter dated 28 November 2012 a delegate of the Minister informed the applicant that her application for a protection visa was refused. The letter was addressed to the applicant at the Ashfield address.

3. On 18 December 2012 the applicant applied to the second respondent (Tribunal) for a review of the delegate’s decision. In her application, the applicant wrote the Ashfield address as the address in Australia in which she then lived. Page 7 of the application contained the following note:

   Note: If you do not appoint a representative then the Tribunal will send documents/correspondence for all persons included in this application to the person you specify below.

4. Immediately below this note, in item 13, after the words “[p]lease send correspondence about this application”, the applicant again wrote the Ashfield address.

5. By letter dated 3 April 2013 addressed to the applicant at the Ashfield address, the Tribunal informed the applicant that it had considered the material in relation to the application but was unable to make a favourable decision on the information it had considered. The letter then invited the applicant to appear before the Tribunal at 9 am on 8 May 2013 “to give evidence and present arguments relating to the issues arising in your case”. This letter was sent pursuant to s.425 of the Migration Act 1958 (Cth) (Act). The applicant did not appear.

6. By letter dated 22 May 2013, again addressed to the applicant at the Ashfield address, the Tribunal provided to the applicant particulars of information the Tribunal considered would be a reason for affirming the delegate’s decision, subject to any comments from the applicant. This letter appears to have been written with s.424A of the Act in mind. The envelope containing the letter, however, was returned. Someone had written on the envelope the words: “Left long time ago”.

7. On 3 June 2013 the Tribunal affirmed the delegate’s decision. The Tribunal’s reasons were attached to a letter addressed to the applicant at the Ashfield address.

8. On 1 July 2013, the applicant collected the Tribunal’s reasons for decision from the Tribunal. The record created by staff of the Tribunal noted that the applicant’s residential address was at an address in Burwood.

9. The applicant filed an application to this Court to set aside the Tribunal’s decision on 10 July 2013. The applicant assumes that she filed her application outside the 35 day period prescribed by s.477(1) of the Act because, in her application, she also claims an order under s.477(2) of the Act that the Court extend the 35 day period prescribed by s.477(1). That assumption is correct.

10. Under s.477(1) of the Act, an application to this Court for a remedy to be granted in exercise of the Court’s jurisdiction under s.476 of the Act must be made within thirty five days of the “date of the migration decision”. In the case of a written decision made by the Tribunal, the expression “date of the migration decision” is defined in s.477(3) of the Act to mean “the date of the written statement under subsection . . . 430(1)”. The decision of the Tribunal affirming the delegate’s decision in this case was made on 3 June 2013. That means that the applicant had to file her application to this Court by 8 July 2013.

11. The Minister opposes the application for an extension of time because the applicant has not given any adequate explanation for her delay and because the application discloses no reasonable or arguable ground for setting aside the Tribunal’s decision.

Relevant principles

1. The factors the Court should usually consider when exercising its discretion under s.477(2) of the Act were usefully identified by Nicholls FM (as his Honour then was) in SZMFJ v Minister for Immigration & Anor.[1] Although his Honour there identified five separate factors, these overlap; and the weight each carries relative to the others varies according to the circumstances of the case.

   [1] [2009] FMCA 771 at [44]

2. For example, where the applicant demonstrates strong grounds for setting aside a decision of the Tribunal, the impact on the applicant of not granting the extension of time will be greater than it otherwise would be and the prejudice to the Minister less than it otherwise would be. Similarly, where the applicant demonstrates he or she has a good arguable case, the interest of the public at large becomes a factor which favours an extension of time because it is not in the public interest to leave unexamined an administrative decision which has been shown to have been arguably made in excess of jurisdiction.

3. This example demonstrates that, in most cases, the determining factor in an application for an extension of time will be whether the applicant has a meritorious claim. I will therefore first consider whether there is any merit in the application for review.

Does the applicant have a meritorious claim for review?

1. The grounds stated in the application for setting aside the Tribunal’s decision are as follows:

   1.RRT failed to give me a hearing date.

   2.I was not given chance [sic] to respond to the decision.

   3.The decision didn’t consider my situation.

Ground 1

1. I read the first ground as a claim that the Tribunal did not afford the applicant an opportunity to be heard in support of her application. That claim is based on the applicant’s contention that she did not receive the letters dated 3 April and 22 May 2012 which the Tribunal addressed to the applicant at the Ashfield address. The hearing before me proceeded on the assumption that the applicant did not in fact receive the letters from the Tribunal. The question, therefore, is whether the Tribunal made a jurisdictional error by making a decision in circumstances where the applicant did not receive the letters dated 3 April or 22 May 2012.

2. The Minister submitted that whether or not the applicant in fact received the letters is not relevant. What is relevant is whether the Tribunal sent the letters in accordance with the Act. The Minister submitted that the relevant provisions of the Act in that regard are s.441A(4) and 441C(4), and that the Tribunal sent both letters in accordance with those provisions. I accept the Minister’s submissions.

3. The letter dated 3 April 2012 appears to have been issued pursuant to s.425(1) of the Act which requires the Tribunal to “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”. Section 425A(1) provides that an invitation under s.425(1) must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear. Sub-section 425A(2) provides that, where the applicant is not in immigration detention, a notice under s.425A(1) must be given by one of the methods specified in section 441A. One of those methods is that specified by s.441A(4):

   Another method consists of a member, the Registrar or an officer of the Tribunal, 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 Tribunal by the recipient in connection with the review; or

   (ii)the last residential or business address provided to the Tribunal by the recipient in connection with the review;

   . . .

4. Sub-section 441C(4) of the Act provides:

   If the Tribunal gives a document to a person by the method in subsection 441A(4) . . . 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.

5. The letter dated 22 May 2012 appears to have been sent in intended fulfilment of s.424A(1) of the Act. That sub-section requires the Tribunal to give to the applicant particular kind of information and to invite the applicant to comment or respond to the information. Sub-section 424A(2) provides that where the applicant is not in immigration detention, the information and invitation required to be given under s.424A(1) must be given by one of the methods specified in section 441A. For the purposes of this application, the relevant method is that prescribed by s.441A(4).

6. On the face of these provisions, if the invitation required to be given by s.425(1), or the information and invitation required to be given by s.424A(1), have been given by the method prescribed by s.441A(4) of the Act, the applicant will be taken to have received the invitation, or the information and invitation, by the time specified in s.441C(4), whether or not the applicant in fact received the invitation or the information and invitation. That is how Gray J in SZMHQ v Minister for Immigration and Citizenship construed s.441C(4).[2]

   [2] [2008] FCA 1840

7. In that case, the Tribunal sent to the applicant’s last notified address for service a letter setting out information and the invitation required by s.424A(1) but the applicant did not receive the letter. His Honour held that s.441C(4) of the Act “effectively deems the [applicant] to have received the letter, even if she did not actually receive it”.[3] His Honour said:

   The Tribunal’s obligations under s 424A are limited by subs (2) of that section to the choice of one or more of the methods specified in s 441A, except in the case of a person in immigration detention. As I have said, one of the methods specified in s 441A of the Migration Act is that specified by subs (4), namely posting by pre-paid post or other pre-paid means to the last address for service provided to the Tribunal by an applicant in connection with the review. The fact that the letter may have gone astray in the mail, and may never have arrived, does not entitle the [applicant] to succeed on this ground.

   [3] [2008] FCA 1840 at [13]

8. In my opinion, his Honour’s observations apply equally to notices given pursuant to s.425A(2) of the Act.

9. I now turn to consider whether the letters of 3 April and 22 May 2012 were given to the applicant according to the method prescribed by s.441C(4). Both letters were addressed to the applicant at the Ashfield address. On the material that is before me, that was the only address the applicant provided to the Tribunal. Both letters were sent by prepaid post to that address. And both letters were despatched on the dates shown on the letter. It follows, therefore, that the applicant was given these documents by 10 April and 29 May 2012 respectively. And it also follows that the Tribunal did not fail to notify the applicant of the hearing date. There is, therefore, no merit in ground 1 of the application.

Ground 2

1. This ground also discloses no merit. The Tribunal not only has no duty to invite an unsuccessful applicant to respond to a decision affirming a delegate’s decision; the Tribunal has no power to do so.

Ground 3

1. There is no merit in this ground of review. The Tribunal, in its reasons, considered the material that was before it. It accurately stated the ground on which the applicant claimed a protection visa, namely, that the applicant claimed fear from harm from underworld figures following a stabbing at a nightclub. The Tribunal, however, was not satisfied the applicant was the person she claimed to be. It was not so satisfied because of what it concluded was contradictory evidence in files maintained by the Department of Immigration and Citizenship. That, in turn, led the Tribunal to doubt the applicant’s credibility. The Tribunal noted that had the applicant appeared before it, it would have questioned the applicant about her identity and about “her claims more broadly”.

2. The circumstances of this case are similar to the circumstances in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs and the following passage from the reasons of the Full Court apply to the circumstances of this case:[4]

   Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.

   [4] [2004] FCAFC 287 at [5] (French, Emmett & Dowsett JJ)

Other factors

1. The applicant’s delay in filing the application for review was relatively minor – two days. The applicant, from the bar table, explained the delay to her having become aware of the Tribunal’s decision only on 1 July 2013 and her inability to understand it. On the material that is before the Court, I am prepared to accept that the applicant first became aware of the Tribunal’s decision on 1 July 2013 and on that basis the applicant has given a satisfactory explanation for her not having filed the application to this Court by 8 July 2013.

2. On the other hand, given my finding that the applicant’s substantive claims lack merit, not to extend the time for filing the application will not have an adverse impact on the applicant because her application is bound to fail; and to extend the time will prejudice the Minister to the extent that the Minister will incur additional costs to defend a claim that is bound to fail. Further, the interests of the public at large will be served if time were not extended to file an application for a claim that is bound to fail; it is not in the interests of the public to devote public resources to the determination of a claim that is bound to fail.

Disposition

1. For these reasons, I am not prepared to extend the 35 day period prescribed by s.477(1) of the Act for the making of an application for a remedy in exercise of the Court’s original jurisdiction under s 476 of the Act.

2. Accordingly, I propose to dismiss the application to extend the 35 day period and order that the applicant pay the Minister’s costs of that application. In addition, as requested by the Minister, I propose to order that the Minister’s title as it appears in the application be amended to reflect his current title.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  29 January 2014