SZTVE v Minister for Immigration & Border Protection

[2014] FCCA 1640

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTVE v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1640

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth), s.412
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Applicant: SZTVE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 220 of 2014

Judgment of: Judge Emmett

Hearing date: 24 July 2014

Date of Last Submission: 24 July 2014

Delivered at: Sydney

Delivered on: 24 July 2014

REPRESENTATION

Solicitor for the Applicant: Mr Achudhan Sivaguru
(Parramatta Lawyers)

Solicitor for the Respondents: Mr Mark Wiese
(Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 220 of 2014

SZTVE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application that the applicant show cause as to why the respondent should be required to respond to the applicant’s claims, pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

2. The applicant filed her initiating application on 31 January 2014 in which she sought judicial review of a decision of the Refugee Review Tribunal (“the RRT”) dated 8 January 2014. The applicant attended a directions hearing before me on 8 July 2014 and, on that occasion, I explained to the applicant that, under the Rules, if the Court was not satisfied that the applicant’s application has raised an arguable case for the relief claimed, the application may be dismissed.

3. I also explained to the applicant the cost consequences that may flow to her in the event that the matter was dismissed and the applicant confirmed that she wished to continue with her application.

4. The applicant was given leave to file and serve an Amended Application and evidence and submissions in support by 18 July 2014 and the matter was set down for hearing today, pursuant to r.44.12 of the Rules.

5. On 18 July 2014, the applicant filed an Amended Application identifying the following grounds:

   “1. The Tribunal failed to ask itself a question that it was required to ask in the exercise of its jurisdiction.

   Particulars

   (i) The Tribunal failed to take into consideration that the Applicant had compelling case and or reasons (on the balance of probabilities) for not responding to the Tribunal’s letter and therefore was not in the position to validate her application.

   (a) the Applicant states that she did not receive the letter dated 24 January 2011 that was posted to the address:[Wiley Park]. The applicant stats she had lived there for a week and returned to her normal place of residence at [Greenacre], the address that the DIBP had used in the first instance to post her letter confirming receipt of her Protection (Class XA) application of 29 June 2010.

   (ii) The Tribunal, not being certain that its finding was in fact correct was required to ask itself and consider whether its conclusion in that respect was mistaken.

   2. The Tribunal committed jurisdictional error by breaching the provisions of s.425(1) Migration Act 1958.

   Particulars

   (i) the Tribunal did not provide the applicant with the opportunity to fully present oral evidence and arguments on issues relevant to the decision, despite having written to the applicant for that purpose.

   3. There is a reasonable apprehension of bias.

   Particulars

   (i) the Tribunal’s decision not to accord the applicant an opportunity to present reasons for her inability to response to the Tribunal’s letter dated 10 December 2013 and or allow a hearing suggest that the Tribunal considered noting the Applicant could have said could have changed its mind. [sic]

   (ii) The Tribunal prejudged the Applicant’s decision in so stating that it has no jurisdiction in determining the Applicant’s application for a review of the Department of Immigration’s decision.”

6. The applicant also filed on 18 July an affidavit of hers together with submissions prepared by her legal representative, Mr Sivaguru.

7. The applicant was represented before the court today by Mr Sivaguru who confirmed that the applicant relied on the grounds of the Amended Application.

8. The first respondent read the affidavit of the first respondent’s solicitor, Mr Wiese, which annexed various documents relating to the notification of the applicant of a decision by a delegate of the first respondent (“the Delegate”) on 24 January 2011 to refuse a protection visa to the applicant.

9. The applicant arrived in Australia on or about 18 May 2009 as the holder of a student visa. On 29 June 2010, the applicant lodged an application for a protection visa which was refused by the Delegate on 24 January 2011. The applicant had attended an interview before the Delegate on 22 October 2010 and, at that interview, had provided an updated address for the purposes of receiving documents to an address at 3/9 McCourt Street, Wiley Park. There is no evidence before this Court to suggest that that address was not given to the Delegate by the applicant for that purpose.

10. The applicant was notified at that address of the Delegate’s decision by letter dated 24 January 2011 and, on the evidence before me, I accept that letter was sent by registered post on 25 January 2011.

11. Under s.412(1)(b) of the Migration Act 1958 (Cth), the applicant is required to lodge any application for review of that Delegate’s decision within 28 days after notification of the decision.

12. The first respondent identified the statutory regime in their submissions as follows:

    “12.  Notification of a protection visa decision  must be by one of the prescribed methods.[1]  Under r 2.16 of the Regulations, the prescribed methods are those specified in s 494B of the Act.  Section 494B(4) allows notification by dispatching the notice:

    "(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 Minister by the recipient for the purposes of receiving documents; or

    (ii)    the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents …"

    [1] Act s 66(1).

    Deemed receipt of notification

    13.    Under s 494C(4), a person is taken to have received a document dispatched in accordance with s 494B(4), if the document was despatched from within Australia to an address in Australia, 7 working days after the date of the document.

    14.    Section 494C(4) has the effect that a person is deemed to have received a document on a given day.  This deemed receipt is without qualification and it is not open to an applicant to mount a case based on proof that he or she did not receive the notice.[2]” (emphasis original)

    [2] Murphy v Minister for Immigration and Ethnic Affairs (2004) 135 FCR 550 at [69]; cited with approval by the Full Court of the Federal Court in Xie v Minister for Immigration and Ethnic Affairs [2005] FCAFC 172 at [14].

13. The applicant is deemed to have received that letter seven working days after the date of the letter and the 28 day period runs from that time.

14. The applicant lodged her application for review of the Delegate’s decision by the Refugee Review Tribunal on 12 November 2013, plainly well in excess of the 28 day period. In her affidavit filed on 18 July 2014, the applicant deposed that she did not receive the Delegate’s decision in respect of her protection visa application.

15. The RRT, in its decision record, noted the statutory scheme pursuant to which notification of the Delegate’s decision was to be provided to the applicant and was satisfied that, on the material before it, the applicant was notified of the decision by letter dated 24 January 2011 and despatched by post to the address at 3/9 McCourt Street, Wiley Park, which was the address notified to the Delegate at the interview conducted on 22 October 2010.

16. The RRT found that, on that basis, 3 February 2011 was the date on which the applicant was taken to have been notified of the letter, this being seven working days after the date of the Department’s letter, making the last day for lodging the application for review by the Refugee Review Tribunal to be 3 March 2011. The RRT found that it was satisfied that the applicant was notified in accordance with the statutory regime.

17. The RRT found that, as the application for review was not received by the RRT until 12 November 2013, the application for review was not made in accordance with the relevant legislation and the RRT has no jurisdiction in this matter. The RRT also noted that it wrote to the applicant on 10 December 2013, inviting the applicant to comment on the validity of her application for review, but that no response was received.

18. Ground 1 of the Amended Application asserts that the RRT failed to take into consideration that the applicant had a compelling case and reasons for not responding to the RRT’s letter and, therefore, was not in a position to validate her application.

19. I understand from submissions made by the applicant’s solicitor that the applicant complains that she received neither the letter notifying her of the Delegate’s decision, nor the letter from the RRT inviting her to comment on the validity of the application for review.

20. In relation to the letter of notification, there is nothing on the evidence before me today, or on the face of the RRT’s decision record, to suggest that the applicant was notified otherwise than in accordance with the statutory regime.

21. In relation to the RRT’s letter, dated 10 December 2013, inviting the applicant to comment on the validity of her application for review, there was no legal obligation on the RRT to send such a letter to the applicant. The failure of the applicant to receive that letter or to have the opportunity to comment on that information is not sufficient to establish jurisdictional error on the part of the RRT.

22. Mr Sivaguru made no submissions in relation to Ground 3 of the application, being an apprehension of bias, and there is no evidence before this Court and nothing on the face of the RRT’s decision record to suggest that such an allegation could be made out.

23. In the circumstances, while I make no final decision as to whether or not the decision of the RRT is affected by jurisdictional error, none is apparent on the face of the RRT’s decision record and none has been identified by the applicant’s solicitor this morning.

24. I am not satisfied that the application raises an arguable case and, for that reason, the proceeding before this court commenced by way of application filed on 31 January 2014 should be dismissed with costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:  31 July 2014