SZULH v Minister for Immigration
[2015] FCCA 909
•9 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZULH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 909 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal – no arguable case raised – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.66, 412, 476, 477, 494B, 494C Migration Regulations 1994 (Cth), regs.2.16, 4.31 |
| SZTBV v Minister for Immigration & Anor [2014] FCCA 2106 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219 Xie v The Immigration Department [1999] FCA 365 Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657 SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 Cheng v Minister for Immigration and Citizenship and Another [2011] FCA 1290 |
| Applicant: | SZULH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1450 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 9 March 2015 |
| Date of Last Submission: | 9 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 9 March 2015 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Respondents: | Ms B Griffin of Australian Government Solicitor |
ORDERS
The application made on 29 May 2014 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rule 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $3416.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1450 of 2014
| SZULH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 29 May 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 22 May 2014 that it did not have jurisdiction to consider an application made to it by the applicant who sought review of the decision of the Minister's delegate to refuse a protection visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”) and the applicant's affidavit of 29 May 2014 which attached the decision record of the Tribunal.
Background
The applicant (“the applicant”) is a citizen of the People’s Republic of China (“China”) (CB 1). He arrived in Australia on 13 February 2011 on a Student Guardian subclass 580 visa (CB 3 and CB 56). He applied for a Protection (Class XA) Visa on the 30 July 2013 (CB 1 to CB 40).
The applicant’s claims to protection were based on his fear that he would be physically harmed or killed by people hired by the local village chief or the chief’s distant cousin, Yang Zhong Gong, if he did not legally and formally hand-over to them his lease to his gravel plant business (CB 28 to CB 30).
By a letter sent by registered post on 6 January 2014 to the applicant’s residential address in Campsie (CB 59), the applicant was invited to attend an interview with the delegate on 30 January 2014 (CB 41). The applicant did not attend (CB 59 and CB 60). The delegate proceeded on the applicant’s written application (CB 1 to CB 40 and CB 59).
The evidence before the Court, reveals that the delegate sent a letter dated 30 January 2014, via registered post, to the applicant’s residential address notifying him of the decision on his application (CB 44 to CB 71).
In his application for the visa, the applicant gave as his residential address, an address in Campsie, NSW ([16] at CB 2). He notes that his postal address is ([17] at CB 2):
“Same as residential.”
The evidence before the Court shows that the letter was sent in an envelope with a “Registered Post Prepaid Label” (CB 69) and was sent out on 31 January 2014 at 14.49 pm, as listed under the ‘Contract Mailing Statement” (CB 70 to CB 71). In essence, this is the relevant record in the department’s mailing log.
The evidence further reveals that the letter was sent to the address for service provided by the applicant in his visa application form, for the purpose of receiving correspondence from the Minister’s department (CB 2, CB 44 and CB 69 to CB 71).
The delegate’s letter of 30 January 2014 was marked by “Australia Post” on 18 February as “return to sender” for reason of been “unclaimed”. The returned letter was received by the department on 19 February 2014 (CB 72). There is no evidence before the Court that indicates that the applicant provided a subsequent address for service to the Minister’s department before 11 March 2014.
The applicant provided a “Change of Address and/or passport details” form to the department on 11 March 2014 (CB 73 to CB76). That is after the date of dispatch of the delegate’s letter, which was sent to the last address for correspondence notified by the applicant up to, and as at, that date. The applicant’s residential address was said to be the same as provided on the protection visa application form (CB 2). However, the applicant provided a new “PO Box” address, as his new address for correspondence (CB 73).
The department sent a copy of the delegate’s letter, and decision, of 30 January 2014, to the applicant on 18 March 2013 at his updated address for service (CB 77). The copy of the letter sent on 18 March 2013 was said not act as a re-notification of the decision to the applicant and the “decision date of 30.1.2014 stands” (CB 77).
The applicant applied for review to the Tribunal on 26 March 2014 (CB 79 to CB 84). The applicant wrote to an “RRT Officer” (received on 26 March 2014) indicating that he had regularly checked his mail but had not received the delegate’s decision, that he had changed his address and informed the department on 1 February 2014. He referred to a conversation with a departmental officer of 19 March 2014, who informed him that the decision had been sent to his original address on 30 January 2013 (CB 78) [in context, this is a mistaken reference to 30 January 2014].
The Tribunal wrote to the applicant on 23 March 2014 inviting him to comment, and provide further information, on the "validity" of his application (CB 90 to CB 91).
A “Change of Contact Details” form was received by the RRT on 28 April 2014 from the applicant, providing his “new” residential and postal address (CB 95). The addresses provided on the 28 April 2014 form are the same as those listed on the form received by the department on 11 March 2014 (CB 73).
The applicant’s response to the Tribunal’s letter was received on 1 May 2014 (CB 97). In essence, the applicant’s response was that he had not received the delegate’s decision until after he had contacted the department and they sent him a copy (CB 97). He claimed that “[i]f I had really received the decision of the Immigration Department, I will surely lodge my application to your Department within 28 Days limited” (CB 97).
The Tribunal notified the applicant by letter dated 23 May 2014 of its decision which enclosed the Tribunal’s decision record (CB 98 to CB 100).
The Tribunal found that it had no jurisdiction to review the delegate's decision (CB 99). Its 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] at CB 100).
2)The material before the Tribunal indicated the applicant was notified of the decision by letter dated 30 January 2013 and dispatched by post ([3] at CB 100).
3)The Tribunal was satisfied that the applicant was notified of the decision in “accordance with the statutory requirements” ([3] at CB 100).
4)The Tribunal noted that it had written to the applicant “in detail” on 23 April 2014 indicating that, in the Tribunal’s view, the application was not valid. The Tribunal further noted that the applicant had responded on 29 April 2014 claiming that he regularly checked his mail, had not received the original decision but upon his request he had received a “copy” and further claimed that if he had received the decision he would have applied for review within 28 days ([4] at CB 100).
5)However, the Tribunal found that the applicant was taken to have been notified of the delegate’s decision on 10 February 2014 in accordance with s.494C of the Act ([5] at CB 100). The prescribed period for making the application ended on 10 March 2014 ([5] at CB 100). The Tribunal did not receive the application for review until 26 March 2014. This was outside the prescribed period ([5] at CB 100), and it had no jurisdiction in the matter ([6] at CB 100).
Application Before the Court
The application before the Court made on 29 May 2014 is in the following terms:
“ 1. I operated gravel plant business in Licheng District Qingdao City. Our village would stop our lease for thirty years. We refused it. I lodged my complain to Qingdao City Authorities. My friend working at the investment office of the Licheng District Government told me that our village chief had colluded with one of his more distance relatives to seize my business because my business was profitable. I couldn’t win any court case, because the village chief would cite the ground of building a government-supported plant, referring to the unapproved poultry processing plant. They hired thug to threaten me to sign the lease termination agreement and not making any further petitions. I feared my life safety. I had to leave China to Australia for protection.
2. I didn’t receive the decision of DIBP before 20 March 2014, so I can’t lodged my application to RRT within 28 Days. The Tribunal refused to accept my application. I think it is unfair.
3. I beg the Federal Circuit Court to accept my application.”
[Errors in the original.]
Before the Court
At the first Court date in this matter, on 23 July 2014, the applicant appeared in person and was assisted by an interpreter in the Mandarin language.
By orders made on 23 July 2014, the matter was set down for mention at a call over on 12 November 2014. I gave the applicant the opportunity to file any amended application, and both parties the opportunity to file any further evidence by way of affidavit. Nothing further has been filed by the applicant.
On 12 November 2014 the applicant appeared in person and was again assisted by an interpreter in the Mandarin Language. The Minister maintained his position that the application raised no arguable case for the relief sought. He pressed for an immediate show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC rules”). I could see no reason in the circumstances not to proceed in this fashion so as to test whether the application contained any arguable case.
As I said, relevantly, in SZTBV v Minister for Immigration & Anor [2014] FCCA 2106 at [46] to [47]:
“46. The issue before the Court is whether the grounds of the application raise an arguable case for the relief sought. I note in this regard that the applicant seeks orders that the Tribunal’s decision be quashed and returned to it for reconsideration
47. If the Court cannot be satisfied that an arguable case is raised against the respondent the application will be dismissed. I note that the Court’s power should be exercised with great caution. Given the summary nature of any such dismissal the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] – [6], Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219) or is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).”
At the hearing today the Minister was represented Ms B Griffin. The applicant appeared in person and was assisted by an interpreter in the Mandarin language. At the beginning of the hearing, the Minister’s representative raised with the Court that just prior to the hearing, the applicant told her he had not received a copy of the Court Book in the matter. The applicant merely confirmed this but gave no further explanation. In these circumstances, the applicant made no request, or indeed gave no indication to the Court, that he sought any adjournment in relation to what he said was the non-receipt of the Court Book.
The argument that the applicant wished to raise with the Court, was his insistence that he had not received the delegate’s decision in time, such that he could then make his application for review within the prescribed time period. I understood from the applicant that his case was that irrespective of whether the delegate sent notification of the decision to refuse the visa application, he did not receive it. That is, his complaint was focussed on not receiving the decision, not that it was not dispatched
In all the circumstances of this case, I am satisfied that even if it had been the case that the applicant had not seen the Court Book prior to coming to Court today that, given the sole argument that the applicant seeks to raise, and given the evidence before the Court today, no unfairness ensues from the hearing proceeding. I could not see that the applicant was prejudiced in the hearing proceeding in all the circumstances a copy was provided to the applicant, and the hearing proceeded on the basis that where references were made to the Court Book, the applicant’s attention was specifically directed to relevant parts. He was given the opportunity to make submissions.
Consideration
In essence, the applicant’s complaint to the Court mirrored the central complaint in the grounds of the application, and indeed was consistent with his evidence to the Court in his affidavit. In particular ([3] of the applicant’s affidavit):
“I didn’t receive the copy of the decision of the BIBP until 20 March 2014. When I got a copy of the decision of DIBP, I immediately lodge d by application to RRT for review. The Refugee Review Tribunal refused to accept my application because my application beyond its limited time.”
[Errors in the original.]
The grounds of the application and the applicant’s complaint assert that the Tribunal’s decision was not “fair”. This misconceives 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 applicant is 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 (SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36]; Cheng v Minister for Immigration and Citizenship and Another [2011] FCA 1290 at [19].
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. This immediately raises the possible question as to whether the Tribunal properly considered the question of its jurisdiction.
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.
The Tribunal’s finding that the applicant was notified of the decision in accordance with the “Statutory Requirements” remained unexplained, in that there was no specific reference to important parts of the statutory and regulatory scheme.
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”. 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.
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 must contain certain information.
However, from the evidence before the Court, it can reasonably be said that the delegate’s letter of 6 January 2014 meets these requirements (CB 41 to CB 68). I note in particular that the letter specified the relevant provisions, informed the applicant about review rights, and where to apply for review.
The applicant claims that he did not receive the delegate’s letter until 20 March 2014. There is no reason not to accept his evidence in this regard. He was not challenged on any cross-examination.
However, 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).
I note the authorities listed by the Minister. Further, 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.]
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.
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 CB 70 to CB 71 for the postal log).
The evidence before the Tribunal was that the delegate’s letter was dated 30 January 2014 and was sent by registered post on that date. As set out above, it was sent to the appropriate address as at the time of dispatch. It was therefore sent to the relevant address in accordance with s.494B(4) of the Act.
Although the Tribunal’s decision record was silent as to s.494B of the Act, on balance, the references to the letter of 30 January 2014 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 100).
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 by the delegate to communicate with the applicant, as it had referred earlier to the letter of notification and that it had been “dispatched by post” ([3] at CB 100).
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 10 February 2014. This is the date of notification as found by the Tribunal ([5] at CB 100).
As referred to above, s.412(1)(b) of the Act, and reg.4.31 of the Regulations, govern the date by which the applicant should have made his application for review. There is no error in the Tribunal’s calculation that the relevant 28 day period ended on 10 March 2014. Consequently, the Tribunal’s finding that it lacked jurisdiction was correct.
I should note, given the omission in the Tribunal’s record, 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.
That the applicant subsequently notified a different address for service also does not alter the fact that the delegate complied with the relevant statutory and regulatory requirements as at the relevant date.
Conclusion
In all the circumstances, there is no arguable case raised by the applicant 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 forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 14 April 2015
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