SZVAR v Minister for Immigration

[2015] FCCA 3130

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVAR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3130

Catchwords:
MIGRATION – Application for extension of time – substantive application seeking review of decision of Refugee Review Tribunal – no satisfactory explanation for the delay – not in the interests of the administration of justice to extend time – extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.66, 412, 476, 477, 494B, 494C, Part 7

Migration Regulations 1994 (Cth), regs.2.16(3), 4.31

SZNZU v Minister for Immigration & Anor [2010] FMCA 197
SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
Minister for Immigration & Ethnic Affairs v Wu Shan Liang  [1996] HCA 6; (1996) 185 CLR 259
MZZDJ v Minister for Immigration and Border Protection and Another [2013] FCAFC 156
Minister for Immigration and Citizenship v Manaf and Others [2009] FCA 963
Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657
SZRLH v Minister for Immigration and Citizenship [2013] FCA 384
NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173 Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 324

Applicant: SZVAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2502 of 2014

Judgment of: Judge Nicholls

Hearing date: 8 April 2015

Date of Last Submission: 8 April 2015

Delivered at: Sydney

Delivered on: 8 April 2015

REPRESENTATION

Solicitors for the Applicant: In Person

Solicitors for the Respondents: Ms H Musgrove of Sparke Helmore

ORDERS

1. The application made on 9 September 2014 for an extension of time pursuant to Section 477(2) of the Migration Act 1958 (Cth) is refused.

2. The applicant pay the first respondent’s cost set in the amount of $3,326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2502 of 2014

SZVAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. By an application filed with this Court on 9 September 2014 pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) the applicant seeks to invoke the jurisdiction of this Court pursuant to s.476 of the Act and subsequently seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 December 2013 that it did not have jurisdiction to review the decision of the Minister’s delegate to refuse the grant of a protection visa to the applicant.

The Extension of Time

1. Section 477(1) of the Act provides that such applications must be made within 35 days of the date of the Tribunal’s decision. The application to the Court was not filed within this period. The application was made some eight and a half months late and is, therefore, not competent.

2. Section 477(2) of the Act provides that the time set out in s.477(1) of the Act may be extended where an application seeking an extension of time has been made in writing, and the Court considers that it is in the interests of the administration of justice to do so.

3. The applicant has made such an application in writing. The grounds state the words “In my Affidavit”. It is apparent that that is a reference to the applicant’s affidavit of 2 September 2014, which accompanied his application to the Court.  That affidavit states as follows:

   “1. I am the applicant in these proceedings.

   2. The RRT decision dated 19 Dec. 2013 is attached to this Affidavit.

   3. When I lodged my application for protection visa , I left Campsie to west NSW for working. I asked my friend to collect my letter and call me about my letter. But he was too busy and tired all day long to forget to collect my letter. So I couldn’t receive the decision of the Immigration Department and lost the valid time for application of reviewing of the decision of the Immigration with the Refugee Review Tribunal which refused my application. I had to lodge application to the Federal Circuit Court for judicial review.

   4. I implore the Court would consider my real condition and accept my application.”

4. The issue now, therefore, is whether the extension of time should be granted. The elements relevant to this are not exhaustive (SZNZU v Minister for Immigration & Anor [2010] FMCA 197 at [52] – [55]). However, as I identified in SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [44], some of the elements include the length of the delay, any satisfactory explanation for the delay and the merits of the grounds in the proposed substantive application.

Before the Court

1. Before the Court, at the hearing of the application for an extension of time, the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Ms H Musgrove appeared for the Minister.

2. In evidence before the Court was a bundle of relevant documents filed by the Minister in these proceedings (“the Court Book” –“CB”), the applicant’s affidavit of 2 September 2014 (read with no objection) and the affidavit of Hailey Rae Musgrove, Solicitor, affirmed on 31 March 2015, which provides evidence relating to a relevant part of the Minister’s department’s correspondence postal log for 6 August 2013.

The Application to Extend Time

1. When given the opportunity to address the Court today, the applicant said that he did not know what to say.  He confirmed that he had taken no steps to prepare for the hearing today and did not seek to assist the Court in explaining his case.  The Minister has filed written submissions in these proceedings, and relies on those submissions. Nothing further beyond the application, and the affidavit that accompanied it, has been filed by the applicant.

2. The application to the Court was filed eight and a half months late, after the expiry of the 35 day period, set out in s.477(1) of the Act. It must be said that the extent of the delay is significant. The extent of the delay is of such length that it is not to be seen to fall within a situation, sometimes seen in matters of this type, where postal misadventure, and the like, results in a delay of a few days.

3. It must be noted that while the applicant’s affidavit seeks to address the delay in making the application for review to the Tribunal, there is nothing that the applicant has put before the Court to explain, either in an evidentiary context or by way of submission, his delay in making his application to the Court.  It is not just that the applicant has failed to provide a satisfactory explanation, he has provided no explanation whatsoever.  A number of orders were made by the Court on the first Court date, where the applicant appeared in person and was assisted by an interpreter in the Mandarin language, which gave the applicant the opportunity to file any further evidence by way of affidavit in support of his application.  Nothing further in this regard has been filed.

4. Nor can I see anything in the material before the Court to provide any support for the proposition that the applicant has provided some satisfactory explanation for the delay.  The applicant’s affidavit simply states that he had to lodge an application to the Federal Circuit Court, but makes no reference to any difficulties that may have arisen in lodging his application within the 35 day period.  The applicant’s delay in making his application to the Court remains, therefore, unexplained.  Given the lack of any satisfactory explanation, and in circumstances where the applicant has made no attempt, despite opportunity, to provide any particulars in explanation, this in, and of itself, argues against the exercise of the discretion to extend time in the applicant’s favour.

5. While the above is important, of greater importance in refusing to exercise the discretion pursuant to s.477(2) of the Act in the applicant’s favour, is that the grounds of the proposed substantive application do not contain merit, such that it would be in the interests of the administration of justice to extend time.

The Merits of the Proposed Substantive Application

Background

1. The following background is relevant. The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 8 January 2013 as a holder of a Subclass 456 visa (CB 1 to CB 26 and CB 68). The applicant applied for a protection visa on 3 April 2013 (CB 1 to CB 26) as he claimed to fear harm in China because of his Christian religion (CB 27 to CB 29).

2. On 6 August 2013 the delegate refused the grant of a protection visa to the applicant. A copy of the delegate’s decision was sent to the applicant by registered post on the same day (CB 64 and annexure A of the affidavit of Hailey Rae Musgrove of 31 March 2015).

3. The applicant applied for review to the Tribunal on 19 November 2013 (CB 79 to CB 84). The applicant attached a statement in support of his application (CB 85). On 27 November 2013 the Tribunal wrote to the applicant inviting comment on the “validity” of his application (CB 89). The issue of validity related to the question of the Tribunal’s jurisdiction, in circumstances where the application for review of the delegate’s decision was made outside the relevant prescribed time period for the making of such applications.

4. The applicant responded by letter dated 15 December 2013 (CB 90). The applicant’s response was that “he made great [a] great mistake” and that he had asked his friend to keep his letters, but that the friend had failed to do so, and because of this delay, he had not received the decision on time (CB 90).

5. The Tribunal found, on 19 December 2013, that it had no jurisdiction to review the delegate’s decision ([1] at CB 93). It’s 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 the Tribunal to be made within 28 days after the applicant has been notified of the decision, in accordance with statutory requirements ([2] at CB 93).

   2)The evidence before the Tribunal revealed that the applicant was sent the letter of notification and decision record on 6 August 2013 by registered post ([3] at CB 93).

   3)The Tribunal was satisfied that the applicant was notified of the decision “in accordance with statutory requirements” ([3] at CB 93).

   4)The Tribunal noted the applicant’s response of 17 December 2013 that the applicant had “received the decision letter late after arrangements he had made with a friend to collect his mail fell through” ([4] at CB 93).

   5)The Tribunal found, in accordance with s.494C of the Act, that the applicant was taken to have been notified of the decision on 15 August 2013. The prescribed period within which the application could have been made ended on 12 September 2013. The Tribunal did not receive the application until 19 November 2013. This was outside of the relevant prescribed period ([5] at CB 93).

Application before the Court

1. The grounds of the proposed substantive application are in the following terms:

   “1. It was hard for me to find job because I don’t know English and have no skill.

   2. When I lodged my Application of protection visa with the Department for Immigration and Border Protection ,I left Campsie to west NSW for seeking job. I asked my friend to collect my letters. He was too tired after a day’s working so he forgot my request.

   3. When I returned to Campsie, I found that I could not attend the hearing of the Immigration Department and missed the opportunity of lodging my application for reviewing of the decision of the Immigration Department within limited time, for which the Refugee Review Tribunal refused to accept my application. I didn’t lodge my application with the Refugee Review Tribunal beyond of its limited time, which was not on purpose. The Refugee Review Tribunal should give a chance to review my application.

   4. I have been a Christian of family church in China and persecuted by the China authorities.

   5. The Immigration Department member failed to take all my claims into account , making a unfair decision.”

Consideration

1. As stated above, the applicant did not assist the Court today with any explanation of his application to the Court. Therefore, the five grounds of the proposed substantive application remain unexplained by the applicant.  The grounds of the proposed substantive application seek to do two things.

2. First, to assert the basis of the applicant’s claims to protection. That is, that he was a Christian of the Family Church in China, and was persecuted by the Chinese authorities, and that the department failed to take all his claims into account. The assertion of the applicant’s alleged Christian faith in the ground, in an application of this type, can only be seen as a request for the Court to engage in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

3. Second, any complaint about the delegate’s decision, made in such an application, does not, of itself, engage the jurisdiction of this Court, in circumstances where the delegate’s decision is reviewable by the Tribunal under Part 7 of the Act.

4. The remainder of the grounds of the application do not seek to challenge the Tribunal’s decision that it did not have jurisdiction, but, rather, seek to repeat the applicant’s explanation as to why he did not make his application to the Tribunal within the time required. 

5. For the sake of completeness, I note that while the Tribunal’s decision record only refers to some parts of the statutory and regulatory scheme for the making of a valid application to it, but is silent as to others.

6. As the Tribunal set out at [2] of its decision record (at CB 93), s.412(1)(b) of the Act and reg.4.31 of the Regulations (relevantly, reg.4.31(2) of the Regulations) provide that an application for review of the delegate’s decision must be made within 28 days of when the applicant received notification of the delegate’s decision.

7. The Tribunal’s finding at [3] (at CB 93), that the applicant was notified of the delegate’s decision in accordance with the “statutory requirements”, remains unexplained before the Court, in the sense that it is a general statement and there is no specific reference in that finding to particular, and important, parts of the statutory and regulatory scheme.

8. Section 66(1) is the starting point of such requirements, stating that notification of a refusal to grant a visa must be done in a “prescribed way”. This prescription is set out in reg.2.16(3) of the Regulations, which sets out that notification must be delivered by one of the methods specified in s.494B of the Act.

9. There is no reference in the Tribunal’s decision record to s.66 or s.494B of the Act. Section 66(2) of the Act states that the notification letter must contain certain information. There is no mention of this, either, in the Tribunal’s decision record.

10. However, having regard to the evidence before the Court, I note that the delegate’s letter of 6 August 2013, notifying the applicant of the delegate’s decision (CB 64 to CB 67), complied with the relevant statutory and regulatory requirements. The letter set out the applicant’s review rights, relevant provisions and told the applicant where to apply for review.

11. At best, in his application to the Court, and, indeed, in his explanation to the Tribunal, the applicant claims that he did not receive the notification on time as he had made arrangements for his friend to collect his mail, and that the friend failed to give him the letter in a timely fashion. The difficulty for the applicant in these circumstances, where the notification letter complied with the relevant statutory and regulatory requirements, is that s.494(C) of the Act provides that the applicant “is taken to have received the document”, in the applicant’s case, seven working days after the date of the letter. This is, relevantly, set out at [5] of the Tribunal’s decision record (at CB 93).

12. I note what was said 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.’”

13. While no explicit reference is made to s.494B of the Act within the Tribunal’s reason for decision, the evidence that was relevantly before the Tribunal shows that the applicant was notified of the decision by a method that was set out in s.494B of the Act, in particular “dispatch by prepaid post”. The document must be dated and dispatched within three working days, to the last address for service provided to the Minister by the applicant for the purposes of receiving documents.

14. The evidence before the Tribunal was that the letter was dated 6 August 2013 and dispatched by registered post on the same day, to the applicant at his residential address, which was provided by the applicant to the Minister for the purpose of receiving correspondence (CB 13, CB 64 and the affidavit of Hailey Rae Musgrove of 31 March 2015).

15. Whilst the Tribunal’s decision record does not set out the requirements under s.494B of the Act, I find, on balance, that the references to the notification letter of 6 August 2013 and the prescribed period, pursuant to s.494C of the Act, are sufficient, in my view, on a fair reading, to say that the Tribunal implicitly included this section in its consideration and its finding, under s.494C of the Act, that the letter was sent “in accordance with the statutory requirements” ([3] at CB 93).

16. While s.494C(4) of the Act is not specifically mentioned in the decision record, the Tribunal clearly relied on this subsection, as the relevant method employed to communicate with the applicant, as it had referred to the letter of 6 August 2013 which had been sent by post ([3] at CB 93).

17. As stated above, the applicant was taken to have received the letter, in accordance with s.494C(4)(a) of the Act, seven working days after the date of the letter, in particular, on 15 August 2013. That date is relevantly identified by the Tribunal at [5] of its decision record (at CB 93). I agree with the Minister’s submission that it is not relevant whether or not the applicant actually received the letter (MZZDJ v Minister for Immigration and Border Protection and Another [2013] FCAFC 156 at [17] and Minister for Immigration and Citizenship v Manaf and Others [2009] FCA 963 at [21]).

18. As the Tribunal identified, s.412(1)(b) of the Act and reg.4.31 of the Regulations, govern the prescribed period within which the applicant should have made his application for review. There is no error in the Tribunal’s calculation that the 28 day period ended on 12 September 2013, and the subsequent finding that it did not have jurisdiction to review the delegate’s decision, in circumstances where no application for review had been made to it within the prescribed period.

19. Ultimately, whether the Tribunal had jurisdiction in this matter is a “jurisdictional fact” for the Court to determine. The evidence before the Court reveals that on the material that was before the Tribunal, there is no error in the Tribunal’s consideration of the relevant date by which an application for review needed to have been made. It was open to the Tribunal to find that the application was not made within the prescribed period, set out for that purpose.

1. I agree with the Minister, that the Tribunal was unable to consider the applicant’s explanation for his late application to the Tribunal or his claims to protection (as set out in [1] – [5] of the proposed substantive application) in its consideration of whether the applicant’s application was made in accordance with the relevant statutory and regulatory requirements. The Tribunal had no discretion to extend time, therefore, the Tribunal had no jurisdiction to review the delegate’s decision (SZRLH v Minister for Immigration and Citizenship [2013] FCA 384; NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173 and Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 324).

Conclusion

1. In all, therefore, on the question of whether time should be extended, pursuant to s.477(2) of the Act, the applicant has provided no explanation for the delay in coming to the Court, let alone a satisfactory explanation.

2. The grounds of the proposed substantive application lack merit. Nothing further has been put by the applicant to this Court in relation to the question of the extension of time.  In all the circumstances, it is appropriate that the application for the extension of time should be refused.  I will make an order accordingly.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 27 November 2015