SZTJM v Minister for Immigration

[2014] FCCA 530

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTJM & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 530

Catchwords:
MIGRATION – Application for review of decision of the Refugee Review Tribunal – no arguable case raised by the applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.66, 412, 430, 476, 477, 494B, 494C

Migration Regulations 1994 (Cth) reg.2.16, 4.31,
Federal Circuit Court Rules 2001 (Cth) r.42.12

Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323

Applicant: SZTJM

Second Applicant: SZTJN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2460 of 2013

Judgment of: Judge Nicholls

Hearing date: 12 March 2014

Date of Last Submission: 12 March 2014

Delivered at: Sydney

Delivered on: 19 March 2014

REPRESENTATION

Applicants: The first named applicant appeared in person and on behalf of the second named applicant

Counsel for the Respondents: Ms A Carr

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application made on 11 October 2013 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The first applicant pay the first respondent’s costs set in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2460 of 2013

SZTJM

Applicant

SZTJN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 11 October 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 September 2013 that it did not have jurisdiction to consider an application made to it by the applicants who sought review of the decision of the Minister’s delegate to refuse protection visas to them.

2. Before the Court were a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”), the affidavit of Melissa Ardita, solicitor, made on 17 January 2014 and the applicant’s affidavit of 5 October 2013.

Background

1. The applicants before the Court are wife (“the applicant”) and husband (“the second applicant”). Both are citizens of the People’s Republic of China (“China”). They arrived in Australia on 19 December 2012 (CB 13).  They, and their son, applied for protection visas on 13 March 2013 (CB 1 to CB 38). Only the applicant made claims to protection in her own right. Her husband and son applied as members of her family unit.

2. The applicant’s claims to protection were based on her claimed religious activities in China (CB 39 to CB 40). The delegate refused the grant of the visas essentially because she did not find the applicant to be a truthful witness and therefore rejected the claimed factual basis for her fear (CB 135.3). As a consequence the second applicant and the son’s applications were also refused.

3. The evidence before the Court both from the Court Book and Ms Ardita’s affidavit reveals that the delegate notified the applicants of her decision by letter dated 17 July 2013 (CB 111 to CB 177). The letter was sent by registered post (CB 111 and [3] and annexure “A” to Ms Ardita’s affidavit).

4. The evidence before the Court reveals that the letter was sent to the address for service provided, in the visa protection form by the applicant, for the purpose of receiving correspondence from the Minister’s department (CB 110 to CB 111 and page 12 of annexure “A” to the affidavit of Ms Ardita).

5. The applicant advised in her application that she wanted written communication to be sent to “Myself” and provided as her postal address in Australia an address in Telopea NSW. (CB 9.8 and CB 12). While the applicants appeared to have received assistance with the completion of the protection visa application form that person (who was not a registered migration agent) was not nominated as an “authorised recipient” for the purposes of receiving correspondence (CB 9). Nor is there any evidence that the applicants provided any subsequent address to the Minister’s department for this purpose.

6. The applicants, and their son, applied for review to the Tribunal on 3 September 2013 (CB 178 to CB 183). The Tribunal wrote to the applicants inviting comment on the “validity” of their application (CB 190 to CB 191). The applicant responded by letter dated 12 September 2013 (CB 192).

7. In essence, the applicant’s response was that she had not received the “refusal letters from DIAC”. It was only after she was advised by her doctor that her “Medicare” card had been “cancelled” that she realised that her application for the protection visa may have been refused (CB 192). This was confirmed when a friend read to her a letter from “Medicare” which also contained that advice (see also CB 184).

8. The Tribunal found that it had no jurisdiction to review the delegate’s decision. It’s reasons can be summarised as follows:

   1)Section 412(1)(b) of the Act and reg.4.31 of the Migration Regulations 1994 (Cth) (“the Regulations”) required an application for review to be made within 28 days after the applicant has been notified of the decision in accordance with statutory requirements.

   2)The evidence before the Tribunal indicated the applicants were notified by letter dated 17 July 2013 and sent by registered post.

   3)The Tribunal was satisfied that the applicants were notified of the decision in “accordance with the statutory requirements” ([3] at CB 197).

   4)The Tribunal noted the applicant’s response that she had not received the delegate’s notification and was only aware some time later that her application had been refused.

   5)The Tribunal found that the applicants were taken to have been notified of the decision on 26 July 2013 in accordance with s.494C of the Act ([5] at CB 197). The prescribed period for making the application ended on 23 August 2013 ([5] at CB 197). The Tribunal did not receive the application for review until 3 September 2013. This was outside the prescribed period ([5] at CB 197).

Application Before the Court

1. The application before the Court made on 11 October 2013 is in the following terms:

   “1. We did not apply RRT within 28 days after the decision made by DIAC because I am not received the refused letter.

   2. The RRT hearing is very important for us because we are really feared to go back to china.

   3. We wish the Federal Circuit Court of Australia to consider our situation.”

   [Errors in the original.]

Before the Court

1. Only the applicant and her husband are applicants before the Court. At the first Court date in this matter, on 4 December 2013 the applicant appeared in person and was assisted by an interpreter in the Mandarin language. The applicant advised that her husband had returned to China, but she wished to press the application.

2. I set the matter down for further direction on 12 March 2014 and gave the applicant the opportunity to file any amended application, and both parties to file any further evidence. The Minister has done so in the form of Ms Ardita’s affidavit. The applicant was put on notice that the Minister may press for dismissal of the application on the basis that there were no reasonable prospects of success in the application, or that the application did not raise an arguable case for the relief sought, if nothing further was filed by the applicants.

3. On 12 March 2014 the applicant appeared in person and was again assisted by an interpreter in the Mandarin language. Ms A. Carr appeared for the Minister. Nothing further has been filed by the applicant. The applicant confirmed that her husband was in China, that he knew of the proceedings and the Court event today, and that she would speak for him, that is that she would press his application on his behalf. The Minister asked that the Court proceed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) as an immediate show cause hearing. Given the nature of the complaint in the application to the Court, and material in the Court Book, and in the absence of anything further from the applicant, it was appropriate to proceed to an immediate “show cause” hearing.

4. The applicant pressed her complaint that she did not receive the delegate’s decision. Further, that once she subsequently realised what had occurred she made her application for review (as referred to in her affidavit of 5 October 2013).

Consideration

1. The grounds of the application and the applicant’s complaint, misconceive the relevant statutory and regulatory scheme. That scheme, relevantly, is that if the Minister’s letter of notification is sent in accordance with the relevant requirements of the Act and Regulations then the applicants are taken to have received it on a date arrived at by the application of the applicable statutory and regulatory formula. The date of actual receipt or notification is thus rendered irrelevant by the statute.

2. As set out above, the Tribunal’s decision record makes general references to the “statutory requirements”. While it refers to some parts of the statutory scheme, it is silent as to other relevant points. A comparison with the Minister’s written submissions now reveals the deficiencies in the Tribunal’s record in this regard (see [13] to [26] of the Minister’s submissions). This immediately raises the question as to whether the Tribunal properly considered the question of its jurisdiction.

3. It is the case, as the Tribunal stated, that s.412(1)(b) of the Act and reg.4.31 of the Regulations (in particular as relevant here reg.4.31(2) of the Regulations) provide that an application for review of the delegate’s decision had to have been made within 28 days of when the applicant was notified of the decision.

4. The Tribunal’s finding that the applicant was notified of the decision in accordance with the “statutory Requirements” remained unexplained ([3] at CB 197), in that there was no specific reference to important parts of the statutory and regulatory scheme.

5. As the Minister’s submissions state, the starting point for these statutory requirements as to “notification” is s.66(1) of the Act. It provides that notification of a refusal to grant a visa must be done in the “prescribed way”.

6. Such prescription is found in reg.2.16(3) of the Regulations. This provides that the notification must be by one of the methods specified in s.494B of the Act.

7. The Tribunal’s decision record made no reference to s.494B of the Act. That is dealt with below. In the meantime I note that the Tribunal also made no reference to s.66(2) of the Act which relevantly provides that the letter notifying the refusal of the visa application contains certain information.

8. However, I also agree with the Minister’s submissions now that the delegate’s letter of 17 July 2013 meets these requirements (CB 111 to CB 123). I note in particular that the letter specified the relevant provisions, informed the applicants about review rights, and where to apply for review.

9. The applicant claims that she did not receive the Tribunal’s letter. Evidence is available in the Court Book to support this claim. It appears the letter of notification was returned to the Minister’s department bearing the following notation on the envelope: “Unknown at this address” (CB 144).

10. The difficulty for the applicant is that in circumstances where the notification letter complied with all the relevant statutory requirements, s.494C(4) of the Act provides that the applicant “is taken to have received the document” (here, the letter), in the applicant’s case, seven working days after the date of the letter (s.494C(4)(a) of the Act).

11. As was said in comparable circumstances in Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657 (per Spender J) at [69]:

    “The person is ‘taken to have received the document’, in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only ‘until the contrary is proved.’”

    [Emphasis added.]

12. Although no reference is made to s.494B of the Act in the Tribunal’s decision record, it is clear on the material before it that the applicant was notified of the visa refusal by the method provided for in s.494B(4) of the Act.

13. The letter was sent, by prepaid post, within three working days of the date of the letter, to the last address for service provided to the Minister by the applicant for the purpose of receiving correspondence (see also the affidavit of Ms Ardita).

14. The evidence before the Tribunal was that the letter was dated 17 July 2013 and was sent by registered post on that date. As set out above, it was sent to the appropriate address. It was therefore sent to the relevant address in accordance with s.494B(4) of the Act.

15. Although the Tribunal’s decision record was silent as to s.494B of the Act, on balance, the references to the letter of 17 July 2013 and s.494C of the Act are sufficient in my view to say, on a fair reading, that the Tribunal implicitly included this section in its consideration, and its ultimate reliance on s.494C of the Act with the use of the term “statutory requirements” ([3] at CB 197).

16. Although no specific reference is made to s.494C(4) of the Act in the Tribunal’s decision record, it is clear that the Tribunal relied on this subsection, as the relevant method employed to communicate with the applicants, as it had referred earlier to the letter of notification and that it had been “dispatched by post” ([3] at CB 197).

17. The applicant, therefore, was taken to have received the letter (pursuant to s.494C(4)(a) of the Act) seven working days after the date of the letter. This was 26 July 2013. This is the date of notification as found by the Tribunal ([5] at CB 197).

18. As referred to above, s.412(1)(b) of the Act and reg.4.31 of the Regulations govern the date by which the applicants should have made their application for review. There is no error in the Tribunal’s calculation that the 28 day period ended on 23 August 2013. Consequently, the Tribunal’s finding that it lacked jurisdiction was correct.

19. Having said that, it must be said that if one purpose of s.430 of the Act is for the Tribunal to explain its reasoning, or expose its consideration, then it has not properly done so in this case. However, there is no jurisdictional error arising from any such deficiency in relation to s.430 of the Act in these circumstances (Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323).

20. Further, I accept the Minister’s oral submissions that whether the Tribunal had jurisdiction in the circumstances presented is ultimately a “jurisdictional fact” for the Court to determine. The material before the Court reveals that on what was before the Tribunal there is no error in the Tribunal’s consideration of the date by which the application for review must have been made to it. In the circumstances, it was open to the Tribunal to find that the application for review was made out of the time prescribed for that purpose. As the Tribunal had no discretion to extend time (as for example the Court has pursuant to s.477(2) of the Act in relation to migration applications made to it), then the Tribunal had no jurisdiction to review the delegate’s decision.

Conclusion

1. In all the circumstances, there is no arguable case raised by the applicants for the relief sought. The application should be dismissed pursuant to r.44.12(1)(a) of the Rules. I will make an order accordingly.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 19 March 2014