SZUQF v Minister for Immigration

[2015] FCCA 2042

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUQF v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2042

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) – whether the Tribunal had jurisdiction to review application before it because application for review lodged out of time – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.412, 494

Migration Regulations 1994 (Cth), r.4.31

Applicant: SZUQF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1837 of 2014

Judgment of: Judge Manousaridis

Hearing date: 22 July 2015

Delivered at: Sydney

Delivered on: 22 July 2015

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondents: Ms Wong of DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,700.

3. The name of the second respondent be changed to read the Administrative Appeals Tribunal.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1837 of 2014

SZUQF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the second respondent (Tribunal) that it had no jurisdiction to determine the applicant’s application for review to the Tribunal, because the application was lodged out of time. 

2. The applicant lodged an application for a Protection visa on 8 August 2013.  On 6 January 2014 an officer of the Department of Immigration and Border Protection (Department) sent an invitation to the applicant’s residential and personal address nominated in his application for a Protection visa.  On 28 January 2014 the Department received the envelope enclosing the invitation.  The envelope had affixed to it a sticker which contained the words “return to sender” and, under those words, a ticked box next to the word “unclaimed”. 

3. A delegate of the first respondent made a decision on 31 January 2014 refusing to grant the applicant a Protection visa.  The notification letter and the decision appear to have been sent to the same postal address on 31 January 2014.  The letter and decision were also returned to the Department on 19 February 2014, marked as “unclaimed”. 

4. The applicant lodged an application for review to the Tribunal on 8 May 2014.  In support of his application for review to the Tribunal, the applicant submitted a letter dated 28 April 2014, which stated as follows:

   When I found awar [sic] away from Sydney, I requested my friend, Mr Lee, to collect my letters, but he was too busy to forget to do it which caused the serious consequence that I’ve got the decision of the Department of Immigration and Border Protection too late.  It is my great error that I lodged my application to your department for reviewing of the decision of the Immigration Department beyond your limited time.  I hope you will consider my great error and give me a chance by granting an application.

5. By letter dated 15 May 2014 the Tribunal invited the applicant to comment on the validity of his application for review.  The Tribunal noted that the applicant was taken to have been notified of the delegate’s decision on 11 February 2014 and that 11 March 2014 was the last day on which the applicant could lodge his application for review.  The applicant wrote to the Tribunal on 28 May 2014, saying that it was his “great mistake” because he was working away from home, which led to him not receiving the delegate’s decision and to lodging the application for review out of time. 

6. The Tribunal found that the applicant was notified of the delegate’s decision by letter dated 31 January 2014, and the letter was dispatched by post. The Tribunal noted that an application for review had to be made within 28 days after an applicant was notified of the delegate’s decision in accordance with the statutory requirements. It referred to section 412(1)(b) of the Migration Act 1958 (Cth) (Act) and regulation 4.31 of the Migration Regulations 1994 (Cth) (Regulations).  The Tribunal identified that the last day for the applicant to lodge an application for review was 11 March 2014. 

7. The Tribunal concluded it was satisfied the applicant had been notified of the delegate’s decision in accordance with s.494C of the Act and that the 28-day prescribed period within which the applicant could lodge the application for review ended on 11 March 2014.

8. The applicant raises one ground in his application which takes issue with the Tribunal not making any factual findings on the applicant’s claims for a Protection visa.  The applicant also makes the following statement in his affidavit filed in support of his application for judicial review:

   I’ve found a job far away from Campsie.  I asked my friend to collect my letters.  He ignored it, which caused the serious consequence that I got the decision of the DIBP too late and my application for reviewing of the decision with the Refugee Review Tribunal beyond of the limited time.  The Refugee Review Tribunal refused to accept my application.  I request the Federal Circuit Court would consider my situation and give me a chance by accepting my appeal.

9. Whether or not the Tribunal was correct in concluding it did not have jurisdiction depends on whether the delegate notified the applicant of its decision of 31 January 2014.  That in turn depends on whether the delegate communicated his decision to the applicant in a manner permitted by the Act. 

10. The methods by which the Minister is permitted to give documents to a person are prescribed by s.494B of the Act.  One of the methods is that described in s.494B(4) of the Act. Under that method, the Minister must date the document and dispatch it within three working days of the date of the document by prepaid post or by other prepaid means to the last address for service or the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.  Subsection 494C(4) of the Act provides that if the Minister gives a document to a person by the method described in s.494B(4) of the Act, the person is taken to have received the document seven working days after the date of the document if the document is dispatched from a place in Australia to an address in Australia.

11. The Minister has put in evidence a copy of an Australia Post “Contract Mailing Statement” dated 31 January 2014, together with an untitled redacted document containing the following information:

    31/01/214 997001492853324011 [name of applicant] Campsie, NSW 2194.

12. The numbers that I have just listed contain the digits “492853324011”, which is the registered post number that is affixed to the delegate’s letter dated 31 January 2014 which is in evidence before me.  The Contract Mailing Statement, together with the untitled redacted document, are explained in an affidavit made by Mr Hungerford. 

13. Mr Hungerford is a manager employed by Converga, which is a firm or company that distributes the mail of the Department.  Mr Hungerford has worked at the Department’s office at 3/26 Lee Street, Sydney since July 2008, and is familiar with the record keeping practices and systems that employees of Converga have implemented on behalf of the Department, including at the Department’s office at 3/26 Lee Street. Mr Hungerford says that, every day, all outgoing Ministerial and Departmental correspondence comes through the Department’s internal mail system to the mail room in which Mr Hungerford works. A Converga employee records on a spreadsheet the barcode numbers of all registered and express post outgoing correspondence and the suburb or address of the person to whom each letter is addressed.  It is clear that the spreadsheet to which Mr Hungerford refers is a sheet, an example of which is the untitled redacted document which is in evidence.

14. The spreadsheet, Mr Hungerford continues, is then attached to a document known as a Contract Mailing Statement. The Contract Mailing Statement is a pro forma document issued by Australia Post.  It provides for the recording of the identity and address of the Australia Post customer, the number and types of letters, the date and the time.  Mr Hungerford says that when the outgoing mail is collected from 3/26 Lee Street, Sydney, it is the practice of Converga staff to require the person who collects the mail on behalf of Australia Post to sign a Contract Mailing Statement. 

15. On the basis of Mr Hungerford’s evidence, I am satisfied that at around 4.49 pm on 31 January 2014, a representative of Australia Post collected from the Department’s office at 3/26 Lee Street, Sydney letters that included the letter dated 31 January 2014 that contained the delegate’s decision refusing to grant the applicant a Protection visa. It follows, therefore, that the letter is taken to having been given to the applicant on 11 February 2014, being seven business days after the date of the letter. It also follows that the applicant had to lodge an application for a review of the delegate’s decision made on 31 January 2014 by no later than 11 March 2014, being the last day of the 28-day period prescribed by s.412(1)(b) of the Act and r.4.31(2) of the Regulations. The applicant lodged his application for review on 8 May 2014. This was outside the prescribed period. The Tribunal did not have a discretion to extend the prescribed period, nor does this court have any power to extend the prescribed period.

16. It follows, therefore, that the Tribunal was correct in concluding it did not have jurisdiction to consider the applicant’s application for review, because the application for review was not lodged within the prescribed period.  I therefore propose to order that the application be dismissed and that the applicant pay the first respondent’s costs.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 28 July 2015