SZUNO v Minister for Immigration

[2014] FCCA 3196

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUNO v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 3196

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

Legislation:

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

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13, Part 44
Migration Regulations 1994 (Cth), reg.2.16, 4.31

Cases cited:
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

Applicant: SZUNO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1283 of 2014

Judgment of: Judge Nicholls

Hearing date: 8 October 2014

Date of Last Submission: 8 October 2014

Delivered at: Sydney

Delivered on: 8 October 2014

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: Ms A Carr of DLA Piper

ORDERS

1. The application made on 14 May 2014 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $3,100.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1283 of 2014

SZUNO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 14 May 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 2 May 2014 which found that it did not have jurisdiction to review the decision of the Minister’s delegate to refuse a Protection (Class XA)visa to the applicant.

Background

1. In evidence before the Court today is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”) and the affidavit of Adele Juliet Carr, solicitor, made on 12 August 2014 with two annexures (“A” and “B”).

2. The following background can be ascertained from the evidence before the Court.  The applicant is a citizen of India.  He arrived in Australia as the holder of a visitor’s visa on 15 June 2013 (CB 14) and he applied for a protection visa on 12 July 2013 (CB 1 to CB 64).  In his application for the visa, the applicant indicated at least two things. First, that all communications about his application, from the Minister or his department, should be sent to him personally. Second, he provided one address as his residential and postal address. I note that this is an address in Wiley Park, New South Wales (CB 13) 

3. The delegate refused the application on 28 January 2014 (CB 73 to CB 94). The evidence in the Court Book shows a registered post label indicating that correspondence was sent to the applicant at the address he provided for the purpose of receiving correspondence from the Minister’s department (CB 73 and CB 72).  There is nothing in the Court Book, or elsewhere in the material before the Court, to indicate that the applicant notified of any change of address. 

4. The applicant applied for review to the Tribunal on 10 March 2014.  That application was accompanied by a copy of the delegate’s letter of notification of the decision (CB 95 to CB 125).  

5. The Tribunal wrote to the applicant by letter dated 2 April 2014 and that letter invited his comment on whether he had made a valid application for review (CB 129).  The Tribunal explained the reasons as to why this was the relevant issue for its consideration. The applicant responded on 22 April 2014 (CB 130).

6. The Tribunal found on 2 May 2014 that it did not have jurisdiction to review the delegate’s decision (CB 132 to CB 133). Its reasoning was that the delegate’s decision was made on 28 January 2014 and that s.412(1)(b) of the Act and reg.4.31 of the Migration Regulations 1994 (Cth) provided that any application for review to the Tribunal must be made within 28 days after the applicant was notified of the delegate’s decision and, as the Tribunal understood, and stressed, in accordance with the statutory requirements.

7. The Tribunal found that the letter of notification, dated 28 January 2014, was sent by post and that the notification met the relevant statutory requirements. It further found that, in accordance with s.494C of the Act, the applicant was taken to have been notified of the delegate’s decision on 6 February 2014. The prescribed period for the making of the review application, therefore, ended on 6 March 2014 (CB 133).

8. As the application for review was not received by the Tribunal until 10 March 2014, the Tribunal found that that application was not made in accordance with the legislative requirements and, in those circumstances, the Tribunal had no jurisdiction to review the delegate’s decision (CB 133). 

Application before the Court

1. The application before the Court was in the following terms:

   “1. I need to argue my case in court because the tribunal decided not to accept my application for review. 

   2. I do not agree with the tribunal decision which was made on 2.5.2014.”

2. No particulars are provided by the applicant in support of those grounds. 

Before the Court

1. The applicant appeared at the first Court date in this matter on 2 July 2014 and was assisted by an interpreter in the Urdu language.  Amongst other orders, orders were made giving the applicant the opportunity to file any amended application or any evidence by way of affidavit.  The matter was also set down for mention today. 

2. The applicant was put on notice that if he did not file any further material revealing an arguable case for the relief sought, that the Minister may press for an immediate show cause hearing pursuant to Part 44 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).

3. The applicant appeared in person before the Court today.  He was assisted by an interpreter in the Urdu language. Ms A Carr appeared for the first respondent. 

4. It is the case that the applicant has filed nothing further in these proceedings and, in that circumstance, the Minister pressed for an immediate show cause hearing pursuant to r.44.12 of the FCC Rules. The applicant indicated some reluctance to proceed in that fashion. The applicant wished for “more time” to seek legal advice. The applicant’s explanation as to why he now sought more time in this matter was not satisfactory or persuasive. The applicant has already had reasonable time to prosecute his matter and seek legal advice. I was not persuaded that there was any utility in giving him more time, given the lack of a reasonable explanation for not pursuing these matters earlier. I find that, in the circumstances, it is appropriate to proceed to an immediate show cause hearing.

5. 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.

6. If the Court cannot be satisfied that an arguable case is raised against the respondent the application will be dismissed. It is the case 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 it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).

Consideration

1. Before the Court today, the applicant stated that he had made a “mistake”.  He had been confused as to the time limit within which the application had to be lodged with the Tribunal.  I note that the applicant’s statement was a submission and not put in any evidentiary form before the Court.  Nonetheless, I accept what the applicant has said. The difficulty for the applicant is that, in circumstances where the Tribunal had no jurisdiction, the Tribunal had no discretion to extend the time within which to make a valid application for review to it.

2. At their highest, the applicant’s grounds of the application may be understood as a complaint that the Tribunal should have reviewed the delegate’s decision. In the circumstances, this does not raise an arguable case for the relief sought. That is because, on what is before the Court, there is no apparent error in the Tribunal’s conclusion that it lacked jurisdiction to do so. 

3. The Tribunal’s decision made reference, as I said earlier, to the statutory requirements. While it identified some of the statutory requirements specifically, it did not refer to all of the relevant regulatory and statutory requirements.  However, no arguable case arises where the Tribunal, in any event, relied on those provisions without specifically identifying them.

4. The statutory starting point is s.66 of the Act. Section 66(1) of the Act provides that the notification of the delegate’s decision, that is, of the refusal of the grant of the visa, must be done in the prescribed way. Relevant to the circumstances of this case is the prescription set out in reg.2.16(3) of the Regulations.

5. Regulation 2.16(3) of the Regulations provides that notification must be done by one of the methods set out at s.494B of the Act. One of the methods set out in s.494B(4) of the Act provides for the dispatch of the notification by prepaid post, within three working days of the date of the letter of notification, to the last address for service provided by the recipient (the applicant) for the purpose of receiving documents (letters) in relation to the application for the visa.

6. The evidence before the Court shows that the notification complied with these requirements.  There is nothing before the Court to show that the applicant provided any other address, other than the Wiley Park address, as the latest address for service.  The evidence, as the Minister submitted, reveals that the letter was sent to that address by prepaid post (affidavit of Ms Carr of 12 August 2014 and CB 72 and CB 73). 

7. I am also satisfied on the evidence before the Court that the letter complied with the statutory requirements set out at s.66(2) of the Act. Section 494C(4) of the Act provides that where such a letter is sent by the method prescribed in s.494B(4) of the Act, the recipient, that is, the applicant, is taken to have received the letter seven working days after the date of the letter. I refer here specifically to s.494C(4)(a) of the Act.

8. 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.’”

9. In essence, what I respectfully understand from what his Honour said, is that the applicant is taken to have received the letter irrespective of whether the receipt has actually occurred. In the current circumstances, this meant that the applicant is taken to have been notified of the delegate’s decision on 6 February 2014.

10. The Tribunal’s relevant finding in this regard was, therefore, reasonably open to it, and was plainly correct.  In that circumstance, the relevant prescribed period meant that the application for review must have been made by 6 March 2014.

11. In these circumstances there was no error in the Tribunal’s finding it had no jurisdiction to conduct a review.  Nor did the Tribunal have discretion to extend that time for whatever reason may have otherwise been advanced to it. 

12. I note the provisions of r.44.13(1) of the FCC Rules that at a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.

13. The grounds of the application before the Court lack merit.   Ground one asserts that the applicant needs to argue his case.  I understood this to be a complaint that the Tribunal should have conducted the review and that either the applicant wants to complain about its finding, or ask the Court to conduct a review of the delegate’s decision.  The first does not raise any arguable case as I cannot see any error in the Tribunal’s finding that it lacked jurisdiction and nor did the Tribunal have discretion to extend time.  The second fails to make out an arguable case because the Court lacks jurisdiction to review the delegate’s decision.

14. Ground two simply asserts disagreement with what the Tribunal has done.  No legal error is asserted. This ground also lacks merit and no arguable case is raised. 

15. There is no reasonable argument raised by the grounds of the application for the relief that the applicant seeks. Nor, in the circumstances presented, can I see any reason to waive r.44.13(1) of the FCC Rules. I note, in this regard, r.1.06 of the FCC Rules that the Court may, in the interests of justice, dispense with compliance with any of the rules, at any time. However, even in this circumstance, there is nothing in the material before the Court to say that the hearing of this matter should not be confined to the grounds of the application. There is nothing to show that even if the rule were to be waived in the interests of justice that a different outcome would ensue for the applicant.

Conclusion

1. It is, in all the circumstances, appropriate that an order be made pursuant to r.44.12(1)(a) of the FCC Rules. For the reasons that I have given, I will make that order.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 2 December 2016