SZUOV v Minister for Immigration
[2017] FCCA 104
•25 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUOV v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 104 |
| Catchwords: MIGRATION – Application for review of former Refugee Review Tribunal decision – whether Tribunal had jurisdiction to review the delegate’s decision – whether applicant had been re-notified of the delegate’s decision – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.66, 412, 476, 494B, 494C Migration Regulations 1994 (Cth), regs.2.16, 4.31 |
| Cases cited: Tay v Minister for Immigration and Citizenship [2010] FCAFC 23; (2010) 183 FCR 163 Minister for Immigration and Citizenship v Manaf [2009] FCA 963; (2009) 111 ALD 437 |
| Applicant: | SZUOV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1732 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 25 October 2016 |
| Date of Last Submission: | 25 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 25 January 2017 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 25 June 2014 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4652.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1732 of 2014
| SZUOV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 25 June 2014 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), which on 11 June 2014 found that it did not have jurisdiction to review the decision of the Minister’s delegate which had refused a protection (Class XA) visa to the applicant.
The evidence before the Court is as follows:
a)A bundle of relevant documents filed and tendered by the Minister (“Court Book” – “CB”, “RE1”).
b)The affidavit of Clyde Hungerford, Manager, made on 22 October 2014 annexing certain immigration department records.
c)The affidavit of Mikhail Glavac, Lawyer, made on 8 November 2016 annexing further departmental records.
d)The affidavit of the applicant made on 25 June 2014.
The Minister filed written submissions in this matter on 8 November 2016 and the applicant sent a “letter” to the Court’s Registry which was received on 25 November 2016 (and presumably incorrectly dated). This correspondence has been treated as submissions, but in any event, the “letter” does no more than repeat what the applicant stated before the Court.
Background
The applicant is a Chinese national who arrived in Australia on 21 April 2013 on a tourist visa valid for three months (CB 48). He applied for the protection visa on 23 July 2013 after his tourist visa expired (CB 1 to CB 31). By letter dated 31 December 2013 the Minister’s delegate invited the applicant to attend an interview scheduled for 24 January 2014 in connection with his application for the protection visa (CB 38 to CB 40). The applicant did not attend the interview, nor was any explanation given for his failure to attend (CB 50 to CB 51).
In his application for the protection visa, the applicant had provided a “Statement” which asserted that he feared harm on return to China on the basis of his religious beliefs and practice. The applicant had also claimed variously that his brother and father had been mistreated by Chinese officials in the past, and that the family had been involved in a protracted property dispute and were blamed for the accidental death of the person with whom they were in this dispute. The applicant also made claims concerning what he said was his forced sterilisation after the birth of his second child (CB 25 to CB 28).
The delegate found that the information provided by the applicant was “limited”. The delegate could not be satisfied on the basis of what had been provided, that the applicant had a real chance of being persecuted for a Refugees Convention reason, nor that Australia had other protection obligations to the applicant. The application was refused on the basis that the applicant did not meet either of the criteria at s.36(2) of the Act for the grant of the protection visa (CB 4 to CB 5).
On the evidence before the Court, the delegate’s decision, and a copy of that decision record, was sent to the applicant by registered post by letter dated 24 January 2014 (CB 41 to CB 51 and the affidavit of Clyde Hungerford made on 22 October 2014 at [5] – [9] and annexures “A” and “B” to that affidavit).
On 7 April 2014 the Minister’s department received a letter from the applicant dated 31 March 2013 (in context that should be 2014), explaining that by the time the applicant received the letter from the delegate to attend an interview, it was too late for him to attend the interview (CB 59). This was said to be because he had left Sydney, and had been working on a farm away from Sydney. He returned to Sydney on 29 March 2014 to his previous address, where the landlord gave him the “notice” from Hurstville post office. The post office informed him that the letter of invitation to the interview had previously been returned to the Minister’s department. The letter from the applicant to the Minister’s department dated 31 March 2013 also states the following: “I beg you would forgive my great mistake and post a copy of your decision to my new address” (see CB 59.8).
On 5 May 2014 the applicant applied to the Tribunal for review of the delegate’s decision (CB 60 to CB 65). By letter dated 21 May 2014 the Tribunal invited the applicant to comment on the validity of his application for review by 13 June 2014 (CB 68). The applicant replied by letter dated 6 June 2014, and received by the Tribunal on 10 June 2014. He explained in the letter that he had been working away from Sydney and that his landlord had failed to notify him of the postal letters he had received while he was away. He stated that he had not received the delegate’s decision in time to have been able to make the application for review to the Tribunal within the time “limited” (CB 69).
The Tribunal found that it did not have jurisdiction to review the delegate’s decision. While the Tribunal took into account the applicant’s letter of 6 June 2014, it nonetheless found that the applicant was deemed to have been notified of the delegate’s decision on 5 February 2014 ([6] at CB 72). As his application was received on 5 May 2014, the Tribunal did not have jurisdiction to review the delegate’s decision given that the relevant statutory scheme required such an application to have been made by 5 March 2014.
The Legislative and Regulatory Scheme
It trite to say that the answer to the question as to whether the Tribunal has jurisdiction to review the delegate’s decision is governed by the Act. The Act sets out a statutory and regulatory scheme which, in effect, establishes that if an applicant has been properly notified of a delegate’s decision according to the relevant statutory and regulatory requirements, an application for review must be made within a particular time limit. If it is not made within that limit, the Tribunal has no jurisdiction to review the delegate’s decision.
Section 66(1) of the Act requires the Minister to notify an applicant when a decision is made to either grant or refuse to grant a visa. Such notification must be made in the prescribed way. Section 494B(4) of the Act and reg.2.16(3) of the Migration Regulations 1994 (Cth) (“the Regulations”) provide that the Minister may satisfy this obligation by dating and dispatching the relevant document by prepaid post to the last address for service provided to the Minister by the recipient for the purpose of receiving documents.
Section 412(1)(b) of the Act provides that an application to the Tribunal for review of a protection visa decision must be given to the Tribunal within the prescribed period, being a period ending “not later than 28 days after the notification” of the delegate’s decision.
Regulation 4.31(2) of the Regulations prescribes the time limit for the purposes of s.412(1)(b) of the Act, as being 28 days after the day the applicant is notified of the decision, subject to the applicant not being in immigration detention on that day.
Section 494C(4) of the Act provides that if the Minister gives a document to a person by one of the methods set out in s.494B of the Act, in this case, s.494B(4) of the Act, and the document was dispatched from a place in Australia to an address in Australia, the person is taken to have received the document 7 working days after the date of the document.
Application to the Court
The grounds of the application to the Court are in the following terms:
“My whole family are sincere believers in God and taught the gospel for many years.
In Jan. 2013, the local police came to my home and said: ‘It was reported that you spread an evil cult. Now we warm you that you can’t be out for spreading evil cult, teaching gospel. If we find you don’t obey our warning, we’ll send you to the labour camp.’ For my religious belief, I have to leave China for free country.
The officer of Immigration Department refused my protection visa.
The Refugee Review Tribunal didn’t give a chance to answer its questions because I lodged my application for review the decision of the Immigration Department beyond of its limited date.
It is my great mistake for lodging my application within limited date. I think it is fair for the Tribunal to give me chance for reviewing my application.”
[Errors in original.]
The applicant’s affidavit of 25 June 2014 provides an explanation as to the reason for the late lodging of his application for review to the Tribunal. At [3] the applicant states:
“My previous address was [address]. In August 2013, I Found a job on a farm far away from Hurstville. I begged my previous landlord to collect my letters and call me back to take them. He only called me to collect a latter of notifying me to attend the interview of Immigration Department. After that, he didn’t call me for letter. I worried about the decision of the Immigration Department. I finished the job on the farm and returned and rent a new resident. I called the Immigration Department about its decision. They told me they had lodged its decision to me on 24 January 2013 and was returned from the post office. I asked them to lodge it again to my new address. I got it on 1 April 2014 and lodged application for review the decision of the Immigration Department to the Refugee Review Tribunal.
But the Refugee Review Tribunal refused to review my application. I have the serious mistake of not getting the decision of the Immigration Department in time and didn’t lodge my application to the Tribunal within the limited date. I think the Tribunal should give me a chance to review my application.
I sincerely implore the Federal Circuit Court Officer would forgive my mistake and consider my situation and let the Tribunal give me an interview chance.”
[Errors in original.]
At the hearing before the Court, the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. A solicitor appeared for the Minister. The applicant’s oral submissions echoed what he had put in his affidavit to the Court.
It is important to note that the applicant acknowledges that the application to the Tribunal was lodged outside the prescribed period. However, he nonetheless seeks to be heard before the Tribunal, notwithstanding that the Tribunal has no jurisdiction to consider his application.
Consideration
The first issue in determining the applicant’s application to the Court is whether the Minister complied with the relevant statutory and regulatory obligations in notifying the applicant of the delegate’s decision.
On the evidence before the Court, the Minister complied with the requirements of s.494B(4) of the Act and discharged its obligation pursuant to s.66(1) of the Act. Also on the evidence before the Court, the letter notifying the applicant of the decision complied with the requirements of s.66(2) of the Act. The last address for service provided to the Minister’s department by the applicant for the purposes of receiving documents, that is, correspondence in relation to his protection visa application, was an address in Bellevue Parade Hurstville New South Wales.
The decision notification was sent by the Minister’s department to that address and dated 24 January 2014. I am satisfied on the affidavit evidence of Mr Hungerford that the letter was dispatched by prepaid post on the same day (see [4] – [9] of the affidavit of Clyde Hungerford made on 22 October 2014 and annexures “A”, “B” and “C” to that affidavit).
The Tribunal’s finding that the applicant was notified of the decision in accordance with the statutory requirements was therefore reasonably open to it to make (see [3] at CB 72).
For the purposes of s.494C(4)(a) of the Act, the letter was dispatched from a place in Australia to an address in Australia. The effect of s.494C(4)(a) of the Act is that in the circumstances, the applicant is deemed to have received notification of the delegate’s decision on 4 February 2014. On the evidence, the applicant was not in immigration detention.
In these circumstances, the last day by which the applicant was required to make a valid application for review of the delegate’s decision was 5 March 2014 (see s.412(1)(b) of the Act and reg.4.31(2) of the Regulations at the relevant time). There is no error, in the circumstances, in the Tribunal making that finding (see [6] at CB 72).
The relevant statutory and regulatory scheme does not require actual receipt of the notification by an applicant. The relevant time limit for the making of an application for review to the Tribunal commences from the day after the applicant is taken, or deemed, to have received such notification, so long as the Minister complies with all the relevant regulatory and statutory requirements in the dispatching of that notification.
The applicant’s evidence that he did not physically, and personally, receive the notification at an earlier time because of his absence from Sydney cannot assist him in the circumstances of the relevant statutory scheme. I agree with the Minister’s submissions that s.494C of the Act is a conclusive deeming provision and does not merely create a rebuttable presumption that the applicant received the decision notification (Tay v Minister for Immigration and Citizenship [2010] FCAFC 23; (2010) 183 FCR 163, Minister for Immigration and Citizenship v Manaf [2009] FCA 963; (2009) 111 ALD 437 and Murphy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 657; (2004) 135 FCR 550).
On the evidence before the Court, the Tribunal received the application for review on 5 May 2014. This was some eight weeks after the expiration of the statutory time limit. The Tribunal therefore was correct to find that it had no jurisdiction to review the delegate’s decision ([6] at CB 72 to [7] at CB 73).
The application to the Court now, in effect, asks that the Court find that the Tribunal should nonetheless have waived the time limit, and given the applicant the opportunity to present his case to it. The difficulty for the applicant in this regard is that the Tribunal had no jurisdiction, and nor does the Court have any jurisdiction, to permit the Tribunal to review the delegate’s decision in relation to an application that is received out of time, and in respect of which all of the relevant regulatory and statutory requirements have been satisfied (see Rana v Minister for Immigration and Border Protection [2014] FCA 1233, Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292; (2003) 134 FCR 308 and VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311; (2003) 133 FCR 570).
During the hearing I did raise with the Minister’s solicitor the Tribunal’s references in its decision record to a copy of the delegate’s decision record being sent to the applicant on 7 April 2014 (see [4] at CB 72). I gave the Minister, and the applicant, the opportunity to make written submissions on the question of whether the sending of this document to the applicant may have constituted some re-notification of the delegate’s decision (see above at [3] regarding the subsequent submissions received from the applicant). If it could be seen in such a light, then the application for review would have been made within time.
The following may be said on the evidence. First, the letter of 7 April 2014 sent to the applicant was a copy of the letter dated 24 January 2014, notifying the applicant of the outcome of his protection visa application and sent to him “at his request”. I am satisfied on the evidence that the letter sent to the applicant on 7 April 2014 was a replica of the letter sent on 24 January 2014.
Second, having regard to the evidence, as set out in the affidavit of Mr Glavac, I am satisfied that what was sent to the applicant on 7 April 2014, was not re-notification of the delegate’s decision, but a copy of what had been sent earlier to the applicant, and done at his request.
The Tribunal itself in its decision record, refers to what was sent to the applicant on 7 April 2014 as being a “copy” of what had been sent earlier, and done at the applicant’s request that he receive a “copy of the decision”. Further, the departmental records before the Court, as annexed to the affidavit of Mr Glavac, clearly refer to the document of 7 April 2014 as being a “copy of refusal letter”. It is also important to note that the applicant did not request that the delegate’s decision be made again, but rather, that a copy of the delegate’s decision be sent to him.
I also accept the Minister’s submissions that the Integrated Client Services Environment (“ICSE”) “screenshots” annexed to the affidavit of Mr Glavac, refer to the “copy of refusal letter” as having been “printed from TRIM [records management system] and sent to applicant again as per his request”. I accept on the evidence that what was sent to the applicant on 7 April 2014 was not a re-notification of the delegate’s decision. Plainly, on the evidence, the Minister’s department was satisfied that the decision had been properly notified to the applicant earlier. What was subsequently sent to the applicant was, in compliance with his request, a copy of that decision which had been earlier properly dispatched to him.
As the applicant freely acknowledged, both in his affidavit and before the Court, his “mistake” had been to rely on his landlord sending him correspondence. Unfortunately for the applicant, the Court has no discretion to take into account his misplaced reliance on the efficiency or willingness, of his landlord to assist him in this regard.
In short, the Tribunal was correct to find that it had no jurisdiction to review the delegate’s decision, as the delegate’s decision had been properly notified to the applicant pursuant to the relevant regulatory and statutory scheme in such a manner and at such time as required. Whether the applicant had actual notification so as to have made his application for review to the Tribunal by 5 March 2014 is not relevant. That application for review was not made on that date, or on or before that date, and the Tribunal had no jurisdiction to review the delegate’s decision. Nor did it have discretion to extend the time by which such a valid application for review could have been made.
Conclusion
The grounds of the application do not reveal legal error on the part of the Tribunal. It is appropriate that the application to the Court be dismissed. I will make the appropriate order.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 25 January 2017
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