SZTMZ v Minister for Immigration

[2014] FCCA 2957

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTMZ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2957

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal that it had no jurisdiction – delegate’s decision sent to Applicant’s authorised recipient –whether applicant withdrew notice of appointment of authorised recipient – application dismissed.

Legislation: 

Migration Act 1958 (Cth), ss.66, 412(1)(b), 494B, 494C, 494C
Migration Regulations 1994 (Cth), regs.2.16, 4.31

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
SZQVV v Minister for Immigration and Citizenship [2012] FCA 1471

Applicant: SZTMZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2806 of 2013

Judgment of: Judge Barnes

Hearing date: 26 November 2014

Delivered at: Sydney

Delivered on: 26 November 2014

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2806 of 2013

SZTMZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 29 October 2013 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. 

2. The Applicant lodged an application for a protection visa on 14 February 2013.  The application was refused by a delegate of the First Respondent on 26 July 2013.

3. On 4 October 2013 the Applicant sought review by the Tribunal.  In an accompanying letter she explained that she had attended an interview with the delegate and continued:

   I have appointed a migration agent (migration agent name: Jie YU, MARN (sic): 0964563).  My agent is my authorised recipient.  After the interview, My agent did not give me refusal letters from DIAC, so I missed my chance to lodge RRT application. 

4. She attributed this to “negligence” on the part of her migration agent. 

5. The Tribunal wrote to the Applicant on 21 October 2013 putting to her for comment the view that her application was not valid as it was lodged out of time as it appeared that it had been lodged outside the 28 day time limit from the date on which she was taken to have been notified of the delegate’s decision. 

6. In a reply of 25 October 2013 the Applicant stated that she had given the Department a Form 929 to change her address on 27 March 2013 in which she gave a particular Post Office Box address in Ashfield, NSW to receive correspondence from the Department.  She claimed that she had not received the refusal letter from the Department “until now” and that when she telephoned the Department on 2 October 2013 she had been informed that her application had been refused.  She claimed it was not her fault, that she had provided a new postal address, but that the Department had failed to send the refusal letter to her. 

7. In its reasons for decision the Tribunal found that it had no jurisdiction to review the decision as “the application was not made in accordance with the relevant legislation”. The Tribunal referred to the requirement under s.412(1)(b) of the Migration Act 1958 (Cth) (the Act) and reg.4.31 of the Migration Regulations 1994 (Cth) (the Regulations) that an application for review be made within 28 days after the applicant was notified of the delegate’s decision in accordance with the statutory requirements. It found that the material before it indicated that the Applicant was notified of the delegate’s decision by letter dated 29 July 2013. The Tribunal was satisfied that the Applicant was notified in accordance with the statutory requirements. It referred to receipt of the application for review on 4 October 2013 and to the Applicant’s response to its letter conveying its preliminary view that the application appeared to be out of time.

8. The Tribunal found that while the Applicant did notify the Department of her change of address to an Ashfield Post Office Box as she claimed, she did not at any stage indicate to the Department a change to her authorised recipient and the address for correspondence indicated in her protection visa application submitted on 14 February 2012, which was said to remain care of Auyangtong International, at a specified Post Office Box in Campsie, NSW.  The Tribunal found that as this was the address to which the Department had sent the refusal notification, the Applicant had been correctly notified. 

9. The Tribunal went on to find that, in accordance with s.494C of the Act, the Applicant was taken to have been notified of the delegate’s decision on 7 August 2013 so that the prescribed period within which the review application could be made ended on 4 September 2013. The Tribunal found that as the application for review was not received until 4 October 2013 it followed that the application for review was not made in accordance with the relevant legislation and that it had no jurisdiction.

10. The Applicant sought review by application filed in this Court on 13 November 2013.  There are three grounds in the application.  She filed an initial supporting affidavit attaching copies of the two letters she sent to the Tribunal.  She did not file any further affidavit evidence or written submissions.  However when the matter came before the Court for final hearing, the Applicant raised a new issue as to whether or not her former migration agent had been deregistered at a relevant time, that is, when the matter was before the Department or the Tribunal.  In light of issues that may have arisen if this were so, the matter was adjourned to enable the solicitors for the First Respondent to provide affidavit evidence in relation to the registration status of the Applicant’s former migration agent. 

11. An affidavit of Ada Oi-Yee Wong affirmed on 2 October 2014 was filed on 2 October 2014.  Ms Wong is a solicitor employed by the solicitors for the First Respondents.  Annexed to her affidavit are the results of searches that she carried out on the website of the Office of the Migration Agents Registration Authority (MARA) on 1 October 2014.  Relevantly, the searches revealed that as at 1 October 2014 the migration agent Jie Yu (who was the migration agent for the Applicant) was registered.  Her business name and postal address accorded with the details in the Form 956 provided to the Department at the time of the protection visa application.

12. In addition, a screen print of the results of a search of a link to disciplinary decisions on the MARA website in relation to the registration number for Jie Yu revealed no results.  There is no evidence before the Court as to any deregistration or disciplinary decisions in relation to the migration agent who acted for the Applicant in connection with her application for a protection visa while the matter was before the Department (or thereafter).  The relevance of this material is considered further below.

13. The first ground in the application is:

    I did not apply RRT within 28 days after the decision made by DIAC because my agent Yu Jie did not give me the refused letter from DIAC.  

14. Ground two is associated.  It is as follows:

    I have provided 929 form to change my address on 27/03/2013.  I gave [a specified post office box] Ashfield NSW 1800.  I also have not received my refusal letter. 

15. Ground 3 is simply:

    I wish the Federal Circuit Court of Australia could consider my situation. 

16. In considering whether the Tribunal fell into error in finding that it had no jurisdiction, it is necessary to have regard to the relevant provisions of the Act and the Regulations in relation to notification of a delegate’s decision. Pursuant to s.66(1) of the Act, a decision of a delegate to refuse a visa must be notified to the Applicant by a prescribed method. Under reg.2.16(3):

    The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.

17. Section 494B of the Act applies for the purposes of provisions that require or permit the Minister to give a document to a person and provides that the Minister must do so by one of the methods specified in that section. Relevantly, s.494B(4) provides for the Minister to date the document and dispatch it within three working days of the date of the document by pre-paid post to the last address for service provided to the Minister by the recipient for the purpose of receiving documents or the last residential or business address provided to the Minister by the recipient for the purpose of receiving documents.

18. It is also necessary to have regard to s.494D(1) of the Act which provides that: 

    If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to receive documents in connection with specified matters that consist of or include receiving documents in connection with matters arising under the Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person.

19. Section 494D(2) provides that if the Minister does give a document to the authorised recipient, the Minister is taken to have given the document to the first person, although this does not prevent the Minister from also giving the first person a copy of the document.

20. Under s.494D(3) the first person may vary or withdraw a notice given under subsection (1) at any time. 

21. Section 494D(5) provides that the Minister need not comply with subsection (1), that is, the requirement that documents be given to an authorised recipient, if the authorised recipient is not a registered migration agent, the Minister reasonably suspects the authorised recipient is giving immigration assistance and the Minister has given the first person notice stating that he or she does not intend to give the authorised recipient documents.

22. If the Minister is required to give a document to an authorised recipient by s.494D and does so in accordance with s.494B, the applicant is taken to have received the document at the time specified in s.494C in respect of that method.

23. Section 494C(4) provides that where the dispatch is by pre-paid post, the person is taken to have received the document (relevantly) seven working days after the date of the document.

24. In this case the Applicant contended first that her migration agent did not give her the refusal letter from DIAC.  While it is apparent from the Applicant’s initial letter to the Tribunal that at the time of her review application she acknowledged that Ms Jie Yu was her migration agent and her authorised recipient, I have had regard to the other documents in the Courtbook in relation to whether the Applicant had appointed a migration agent as her authorised recipient and whether she withdrew that notice to the Department of the appointment of an authorised recipient prior to the time of the delegate’s decision.

25. Relevantly, in Part B of her protection visa application (which advised that an applicant may wish to authorise another person or migration agent to receive written communications), the Applicant instructed that all written communications about the application should be sent to her migration agent, Ms Yu. 

26. Separately, she undertook to inform the Department if she intended to change her address for more than 14 days while her application was being considered. 

27. Consistent with the printed instructions on the protection visa application form, as the Applicant had indicated that she wanted communications sent to Ms Yu (the migration agent whose details had been provided), Ms Yu completed and lodged with the Department a Form 956.  Both Ms Yu and the Applicant signed that form on 14 February 2013.  In that form Ms Yu notified the Department that she had been appointed to provide immigration assistance, provided her address for correspondence, indicated that she provided assistance as a registered migration agent and provided her registration number, details of the Applicant and the application.  Under the heading “Authorised Recipient”, she indicated that she had been authorised to receive written communications on behalf of her client.  This was consistent with the Applicant’s notification to the Department that written communications should be sent to her migration agent, Ms Yu.  In addition, the Applicant declared that she had appointed Ms Yu to provide assistance with matters as indicated on the form. 

28. I am satisfied that at the time of her protection visa application the Applicant appointed Ms Yu as her migration agent and as her authorised recipient to receive documents in relation to the application.  I am also satisfied that the Applicant gave written notice of that fact to the Minister in accordance with s.494D(1) of the Act. Hence the Minister (though his delegate) was required to give Ms Yu, instead of the Applicant, any documents in connection with the protection visa application.  On the evidence before the Court there is nothing to suggest that s.494D(5) is applicable in this case as there is no evidence that the Applicant’s migration agent was not registered at any relevant time. 

29. Subsequently, on 28 March 2013 the Department received a change of address and/or passport details (Form 929) completed by the Applicant.  This form contains provision for notification of a change of contact details, change of the authorised recipient’s contact details and change of passport details.  The Applicant advised of a change to her contact details by providing a new residential address and also a postal address, described as an address for correspondence.  No information was provided in respect of the authorised recipient. 

30. I am satisfied on the basis of the material before the Court, including an affidavit of Ms Wong of 8 January 2014, that the delegate’s refusal letter dated 29 July 2013 was dispatched by pre-paid post on 29 July 2013 by registered post.  I note that while the contract mailing statement (a copy of which is annexed to Ms Wong’s affidavit) provides only the suburb to which the document was sent, it includes a registered post number which is the same as the registered post number on the letter which bears the full address to which it was sent and the copy of the envelope dated 29 July 2013 in the Court Book.  In these circumstances, any concerns I might have about where in Campsie the letter was sent are addressed.  The letter and envelope were addressed to Jie Yu (the migration agent), Auyangtong International, at a specified Post Office Box in Campsie, consistent with the contact details provided for the authorised recipient at the time of the protection visa application.

31. The Applicant, in effect, raises two alternatives in the grounds in her application.  First she contended that her agent did not give her the refusal letter from the Department.  She appeared to be asserting some inappropriate conduct (possibly negligence) on the part of her agent.  Such a contention is consistent with the first letter that the Applicant wrote to the Tribunal.  However there is evidence of the current registration of the migration agent.  There is no evidence that the migration agent was at any time unregistered or the subject of any disciplinary sanctions.  Nor is there any evidence to support any contention that the migration agent’s failure (if there was such a failure) to give the Applicant a copy of the refusal letter was in some way attributable to negligence or fraud on the part of the migration agent.  I considered the possibility that the circumstances may have raised an issue as to whether there was fraud on the Tribunal in the sense considered by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 if the Applicant’s claims were taken at their highest.  However there is no allegation of fraud, let alone factual support for any findings in relation to fraud on the part of the migration agent.  Hence it is not necessary to consider whether the principles in SZFDE are applicable in relation to an allegation that the Applicant’s ability to lodge a review application with the Tribunal was affected by the conduct of her migration agent (see SZQVV v Minister for Immigration and Citizenship [2012] FCA 1471. I note in that respect that mere negligence, even if it were to be established, would not suffice. If the Applicant had such a concern in relation to the conduct of her migration agent, it would have been open to her to raise that with the Migration Agent’s Registration Authority. There is no evidence to suggest that that has occurred.

32. Hence the complaint that the Applicant makes in ground one on the basis that her adviser was her migration agent and her authorised recipient, does not, on the material before the Court, establish jurisdictional error on the part of the Tribunal. 

33. Insofar as ground one is intended to be broader and to overlap with ground two, there appears to be an assertion on the part of the Applicant that by lodging a change of address form with the Department, this imposed an obligation on the Department to notify her of the decision at that new address (either instead of the migration agent or, possibly, in addition).

34. It may be intended to be contended that the change of address Form amounted to a withdrawal of notification of the authorisation of the migration agent.  While I understand that an applicant might assume that simply lodging a change of address form would mean that all further correspondence would come to the address provided, that is not the effect of the Form.  I am not satisfied that in this case the provision of details of a change of the Applicant’s address to the Department (in circumstances where she had been advised and had undertaken in the declaration part of her visa application that she would to inform the Department if she intended to change her address for more than 14 days while her application was being considered) amounted to a withdrawal of the notice authorising the migration agent to act as her authorised recipient. 

35. I have borne in mind that it is apparent from s.494D(3) that an authority given to an authorised recipient may be varied or withdrawn at any time and that the Act is silent on the question of how an authority is to be withdrawn.  However there is no evidence of any express withdrawal of the agent’s authority and in the circumstances of this case (consistent with the fact that when the Applicant sought review by the Tribunal she acknowledged that, the migration agent “is my authorised recipient.”) the evidence before the Court is not such as to support an inference that the Applicant had engaged in conduct from which it should be inferred that the Department was informed that she had withdrawn the authorisation of the migration agent to act as her authorised recipient within s.494C(3) of the Act. That is not to say that in different circumstances the completion of a change of address Form may not be a relevant factor as part of all the circumstances relevant to whether such an inference should be drawn. However in this particular case I am not satisfied that it has been established that there was a withdrawal of authority and a notice of such withdrawal within s.494D(3) of the Act.

36. Insofar as there might be some argument that if an agent was deregistered (as the Applicant initially contended) that would impliedly give rise to a withdrawal of the authority, there is no evidence before the Court to support any contention that the agent was deregistered at any relevant time.

1. Accordingly, as the Department sent the decision notification letter by pre-paid post to the last postal address of the authorised recipient provided to the Minister, the notification letter complied with the requirements of s.494B(4) of the Act. Thus, pursuant to s.494C(4) of the Act, the Applicant was taken to have received the notification letter seven working days after the date of the document. The Tribunal did not err in finding that these provisions had the effect that the Applicant was taken to have been notified of the delegate’s decision on 7 August 2013.

2. The Applicant appeared to contend that the delegate should have sent a copy of the decision to her as well as to her authorised recipient.  As the migration agent was and remained the Applicant’s authorised recipient at the time of notification, there was no such obligation on the Department.  As s.494D(2) states, if the Minister gives a document such as the decision to the authorised recipient, the Minister is taken to have given the document to the Applicant.  The delegate was not also obliged to send a copy of the decision to the Applicant although he was not prevented from doing so (s.494D(2)).

3. Further, no error has been demonstrated in the Tribunal’s findings in relation to when an application for review has to be lodged with the Tribunal in order for it to have jurisdiction. Under s.412(1)(b) of the Act an application for review of an RRT reviewable decision (which this decision was) had to be lodged with the Tribunal within the prescribed period. Regulation 4.31 provides, relevantly, that in circumstances such as the present a review application must be lodged at a registry of the Tribunal within a period of 28 days after the date on which notice of the decision was received. The Applicant was taken to have received notification of the delegate’s decision on 7 August 2013. The prescribed period within which the review application could be lodged ended, as the Tribunal found, on 4 September 2013. However, the review application was not lodged until 4 October 2013.

4. In these circumstances, the Tribunal was correct to find that the application was lodged outside the prescribed 28 day period and hence that it did not have jurisdiction.  Neither of grounds one or two is made out.

5. Ground three adds nothing to the other two grounds.  It does not assert jurisdictional error, but merely seeks a more favourable decision. 

6. As no jurisdictional error has been established on any of the bases contended for, the application must be dismissed. 

7. The Applicant has been unsuccessful and the Minister seeks costs in the sum of $5,600. The Applicant asked the Court if the costs could be reduced. However the amount sought is reasonable and appropriate in light of the nature of this case and having regard to other matters of a similar nature. The costs sought are considerably lower than the amount provided for in the Schedule to the Federal Circuit Court Rules, notwithstanding that it became necessary to adjourn the hearing because of an issue raised by the Applicant at the hearing and for the First Respondent to file further affidavit evidence to address that issue. In my view, the costs are particularly reasonable in all the circumstances. There is no warrant for reducing the amount sought. Nor is there any warrant for departure from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date: 17 December 2014