SZVCQ v Minister for Immigration
[2014] FCCA 2951
•16 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVCQ v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2951 |
| Catchwords: MIGRATION – Application seeking review of decision of Refugee Review Tribunal refusing to grant applicant a Protection (Class XA) visa – Tribunal found it had no jurisdiction as the application was filed out of time – Application set down for immediate show cause hearing pursuant to r.44.11(a) of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for relief claimed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 66(2), 412(2)(b), 494B(4), 494C(4)(a) Migration Regulations 1994 (Cth), reg.4.31(2)(b) |
| Cheng v Minister for Immigration and Citizenship [2011] FCA 1290 Minister for Immigration & Border Protection v Kim [2014] FCA 390 SZRLH v Minister for Immigration and Citizenship [2013] FCA 384 |
| Applicant: | SZVCQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2612 of 2014 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 16 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 16 December 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with an Arabic interpreter. |
| Solicitor for the First Respondent: | Ms E Warner-Knight of Australian Government Solicitor |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The application be listed for an immediate show cause hearing pursuant to r.44.11(a) of the Federal Circuit Court Rules 2001 (Cth).
The application be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $1,367.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2612 of 2014
| SZVCQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed in the Federal Circuit Court on 17 September 2014 under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the second respondent, the Refugee Review Tribunal (the “Tribunal”), finding it had no jurisdiction to review a decision of a delegate the Minister for Immigration and Border Protection (the “Minister”). The Minister’s delegate refused to grant the applicant a Protection (Class XA) visa on the basis that he was not a person to whom Australia had protection obligations under s.36 of the Migration Act.
The solicitors for the Minister filed a folder on 7 November 2014 which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by Ms Warner-Knight, acting for the Minister. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.
The applicant is a 21 year old citizen of Lebanon. He lodged an application for a Protection visa on 2 January 2013. In the application the applicant gave only one address as his residential and postal address and ticked ‘no’ to the question ‘do you agree to the Department communicating with you by fax or other electronic means’ (see Part C, questions 16-19 at CB 2).
Although Part B, questions 16-18 of the application show that the applicant had assistance with completing the form from a Michael Hanna, who is not a migration agent, the applicant did not appoint Mr Hanna or anyone else as an authorised recipient or a migration agent (CB 25).
In answer to Part B, question 20 ‘Options for receiving written communications’ (CB 25), the applicant did not appoint any authorised recipient or a migration agent and did not complete a form 956A or form 956.
On 9 April 2013 the Department sent a letter to applicant’s address in Punchbowl, NSW inviting him to attend an interview with the delegate. At CB 36 and 42 it is shown that the invitation to the interview was returned to the Department undelivered, on 24 April 2013. These dates are also confirmed in the delegate’s reasons for decision, at page 6 of the decision (CB 53).
A notification letter dated 9 July 2013 was sent by registered post to the applicant at his Punchbowl address enclosing the delegate’s decision to refuse the Protection visa (CB 44).
At CB 59 is the envelope containing the notification of the decision, shows that the notification letter was returned undelivered to the Department on 15 July 2013. The envelope bears a postal franking stamp which establishes that the notification letter was posted on 10 July 2013 (i.e., one day after the date of the notification letter).
The notification letter stated:
Review Rights
No further assessment of this visa application can be taken at this office. However, you are entitled to apply to the Refugee Review Tribunal (RRT) for a review of this decision. An application for review of this refusal decision must be given to the RRT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days.
…
As this letter was sent by mail to an address in Australia, you are taken to have received it seven (7) working days after the date of this letter. A working day does not include weekends or public holidays in the Australian state or territory to where this letter was posted
In May 2014 the applicant obtained a copy of his Department file under FOI. The application for review was lodged electronically with the Tribunal on 19 May 2014, with the assistance of a ‘close family friend’, who was appointed as the applicant’s authorised recipient in the Tribunal review application. By letter dated 20 May 2014 the Tribunal acknowledged the application (CB 105). By letter dated 10 June 2014 (CB 108) the Tribunal invited the applicant to comment on the validity of the application for review, given that it appeared to have been lodged outside of the statutory time period (the “Natural Justice Letter”).
The applicant sought and obtained an extension to respond to the Tribunal’s Natural Justice Letter. The Tribunal ultimately received a response on behalf of the applicant by email on 1 August 2014 (CB 116-119). In summary, the response stated that the applicant did not receive either the invitation to the delegate’s interview or the notification letter, although he had at all times lived at his Punchbowl. It further correctly notes that the delegate’s notification letter was posted on 10 July 2013 and was returned to the Department by Australia Post, undelivered, only 5 days later, on 15 July 2014 (these two dates are supported by the date stamps appearing on CB 59).
Tribunal’s Decision
It is convenient to reproduce the Tribunal’s Decision Record (CB 123) verbatim:
1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 9 July 2013, to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 19 May 2014. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.
2. Pursuant to s.412(1)(b) of the Act and r.4.31 of the Migration Regulations 1994, an application for review of this decision had to be made within 28 days after the applicant was notified of the decision in accordance with the statutory requirements.
3. The material before the Tribunal indicated that the applicant was notified of the decision by letter dated 9 July 2013 and dispatched by post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
4. I acknowledge and have considered the submission made by the applicant’s migration agent. However I also note that the applicant was correctly notified by letter on two occasions regarding his DIAC interview and the subsequent decision. The addresses were correct on both occasions and the letters were returned on both occasions; the applicant had not appointed a migration agent at the time of his notification, nor had he nominated any other addresses for correspondence to be forwarded to.
5. The Federal Circuit Court decision that the applicant’s migration agent refers to in the submission notes that ‘..where an applicant provides two addresses for notification in their visa application, any communication from the Department of Immigration and Border Protection (DIBP) must be sent to both addresses and not just one.’ Given the applicant only provided the one address for correspondence the decision as cited is not relevant.
6. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 18 July 2013. Therefore the prescribed period within which the review application could be made ended on 15 August 2013. As the application for review was not received by the Tribunal until 19 May 2014 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
7. The Tribunal has no jurisdiction in this matter.
Current Proceedings
The application pleads the following four grounds:
1. RRT Should have jurisdiction as applicant was not properly notified by DIBP.
2. The applicant never received advice about two letters sent by DIAC/DIBP by registered post.
3. The Tribunal (RRT) need to ascertain as to why refusal letter was sent back by Aust. Post by DIAC after only 1 day.
4. Copy of RRT Decision Record is enclosed …
Applicant’s Submissions
The applicant indicated in oral submissions that he had previously received correspondence from the Minister, but had not received the letter notifying him of the delegate’s decision. He stated the delegate should have telephoned him on the phone number provided to inform him of the decision.
The applicant also stated that he had appointed an agent to appear on his behalf. However, it was pointed out to the applicant that his agent had not been nominated until almost 10 months after the delegate made his decision in respect of the applicant’s Protection visa application.
Minister’s Submissions
Purported ‘grounds’ 1, 2 and 4 do not identify any error in the Tribunal’s decision. Only ground 3 identifies a specific alleged error in the Tribunal’s decision that it did not have jurisdiction, namely that the Tribunal should have ascertained why Australia Post returned the notification letter to the Department so soon.
The contention in ground 3 is misconceived. As the applicant himself conceded, the notification letter dated 9 July 2013 was posted one day later, on 10 July 2013. It therefore complied with s.494B(4)(a) of the Migration Act and, as a result, the deeming provision in s.494C(4)(a) applied.
As observed by Flick J in Cheng v Minister for Immigration and Citizenship [2011] FCA 1290 at [19]:
Section 494C has been described as “a statutory deeming provision”: Minister for Immigration and Citizenship v Manaf [2009] FCA 963 at [21], 111 ALD 437 at 441. Sundberg J there further observed that it “does not create a rebuttable presumption that notification has occurred”. His Honour there went on to refer with approval to the following observations of Spender, Kiefel and Dowsett JJ in Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172:
[13] Subsection 494C(4) does not purport to create a rebuttable presumption of fact. It provides that in certain circumstances, a person is to be ‘taken to have received the document … ’. Nothing in the section suggests that this is merely a rebuttable presumption. …
[14] Spender J, in Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550 at [69], observed;
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”.
We agree. The sequence of statutory and regulatory provisions to which we have referred proscribes with precision the steps to be taken in notifying a visa applicant of the outcome of his or her application.
Where a document has been sent by a method specified in s 494B(4), s 494C “conclusively deems it to have been received by the person to whom it was sent seven working days after the date of the document”: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36], 186 FCR 271 at 278. Barker J there went on to observe that “[s]ending a notification letter in accordance with [s 494B(4)] therefore has the result that the notification is taken to have occurred at the end of the relevant period, regardless of whether it was actually received”..
There is no basis to challenge the Tribunal’s find that the application for review was out of time and that it did not have jurisdiction. The notification letter complied with s.66(2) of the Migration Act as to its contents and the decision was sent by prepaid post to the last address for service provided to the Minister by the applicant for the purposes of receiving documents.
Furthermore, although the grounds of review do not refer to Kim, it is noted that the FCC judgment in Kim was overturned on appeal: Minister for Immigration & Border Protection v Kim [2014] FCA 390.
Moreover, as noted above, although Mr Hanna assisted the applicant in completing the Protection visa application, the applicant did not appoint him as an authorised recipient. The applicant was duly notified of the delegate’s decision under s.494B of the Migration Act, which provides the Minister with the discretion to choose any of the methods of communication which it prescribes.
Consideration
His Honour Robertson J in SZRLH v Minister for Immigration and Citizenship [2013] FCA 384 stated at [3]-[17]:
3. The appellant, referred to in these reasons as the applicant, applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 28 September 2011. The delegate decided to refuse to grant the visa on 16 January 2012 and, in the circumstances considered more fully later in these reasons, notified the applicant of the decision and his review rights by letter dated 16 January 2012. The applicant applied to the Refugee Review Tribunal (the Tribunal) on 28 February 2012 for review of the delegate’s decision. The Tribunal wrote to the applicant on 7 March 2012 expressing the view that the application was not a valid application as it was not lodged within the relevant time limit and gave the applicant an opportunity to make comments on whether a valid application had been made. By letter dated 28 March 2012 the applicant responded to the Tribunal’s letter saying that he had not received the decision on time and the post office did not give him any notice to collect the document.
4. The Tribunal found that the decision notice was dispatched within 3 working days of the date of the letter, 16 January 2012, in accordance with s 66(1) and 494B(4) of the Migration Act 1958 (Cth). The deemed receipt provisions of s 494C(4) operated whether or not the post office did in fact make an error by failing to promptly send a postal item collection notice to the applicant. Therefore the applicant was taken to have received the notice on 25 January 2012, being 7 working days after the date of the notice. Therefore the prescribed period of 28 days within which the application for review could be lodged ended on 22 February 2012. The application for review was not received by the Tribunal until 28 February 2012, after the prescribed period had expired. The Tribunal did not have power to accept an application for review lodged outside the prescribed period. For these reasons, the application for review was not valid and the Tribunal held it had no jurisdiction in the matter.
5…
6. The Federal Magistrate (as her Honour then was) set out the basis of the Tribunal’s decision: s 412(1)(b) of the Migration Act stated that an application for Tribunal review must be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision. The relevant period prescribed by reg 4.31(2)(b) of the Migration Regulations 1994 (Cth) was 28 days. The period of 28 days commenced on the day on which the applicant was validly notified of the decision.
7. Before the Federal Magistrate the applicant said that he had not received a notice from the post office that the document had arrived for him. The applicant said that following an enquiry to the Department, he attended the post office on 27 February 2012 and received the notification letter after producing identification to the post office. The applicant said that he lodged his application for review on 28 February 2012 and that the Tribunal had not given him a chance to be heard and had not given proper consideration to his letter dated 28 March 2012 explaining his failure to lodge his review application on time.
8. The Federal Magistrate found there was no error in the Tribunal’s application of the law or its findings as to the validity of the notification letter. The applicant was deemed to have received notification of the delegate’s decision on 25 January 2012. In those circumstances the last day for lodging a valid application for review to the Tribunal was 22 February 2012.
9. I note that in the applicant’s protection visa application, he indicated that all written communications about the application should be sent to him at the address for communications he had provided with that form. This was his current residential address at a unit in Dee Why, New South Wales.
10. A copy of the delegate’s decision was sent by registered post to the unit I have referred to, that letter being dated 16 January 2012.
11. I see no error in the Tribunal’s application of s 412(1)(b) of the Migration Act and regulation 4.31 of the Migration Regulations. Neither do I see any error in the judgment of the Federal Magistrates Court.
12. Each conforms to the decision of the Full Court in NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173 where Stone J, with whom Madgwick and Dowsett JJ agreed, said:
[5] ... Under s 412(1)(b) of the Migration Act 1958 (Cth) (“the Act”) an application for review of such a decision must be made within 28 days of the decision being notified. The Act and its regulations provide that if advice of a decision is posted within three days of the decision having been made then the notification of the decision is deemed to have occurred seven days after the date of the decision. In both these cases then the decision is deemed by those provisions to have been notified by 19 September or, at the very latest, 20 September 2000.
[6] ... it was accepted by the Tribunal and subsequently by the primary judge in this case that the documents were not received by the registry of the Tribunal until 9 November 2000. That date is a date which is well outside the 28 day period provided by the Act.
[7] As a result the Tribunal decided that it had no jurisdiction to review the delegate's decision. This is based on the indisputable fact that the Act does not allow for any extension or variation of the 28 day period.
13. Section 412 of the Migration Act provided for applications for review by the Tribunal in the following terms:
(1) An application for review of an RRT-reviewable decision must ...
(b) be given to the Tribunal within the period prescribed, being a period
ending not later than 28 days after the notification of the decision ...
14. As stated by the Full Court in VOAW v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 251 at [4], s 414(1) requires the Tribunal to review a “valid application ... under s 412”. Although the Act does not define “valid application”, it is clear that for an application to be “valid” it must comply with the requirements of s 412.
15. Regulation 4.31 of the Migration Regulations stated:
(1) For the purposes of paragraph 412(1)(b) of the Act, each period stated in subregulation (2) is prescribed as the period within which an application for review of an RRT-reviewable decision to which the period applies must be given to the Tribunal.
(2) A period mentioned in subregulation (1) commences on the day on which the applicant is notified of the decision to which the application relates, and ends at the end of:
(a) in the case of an application given to the Tribunal by or for an applicant in immigration detention on that day -- 7 working days (beginning with the first working day that occurs on or after that day); or
(b) in any other case -- 28 days ...
16. Section 66 of the Act required the Minister to notify an applicant of his decision to refuse a visa, and reg 2.16 of the Migration Regulations provided that this may be done by one of a number of permissible methods listed in s 494B of the Act. In this case, the applicant was notified of the delegate’s decision by mail, as contemplated by s 494B(4):
(4) Another method consists of the Minister dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; ...
17. Section 494C provided:
(4) If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in
Australia—7 working days (in the place of that address) after the date of the document ...
As to the meaning of s 494C(4), in Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [13] the Full Court stated that nothing in the section suggested that “taken to have received the document” was merely a rebuttable presumption of fact.
His Honour’s decision in SZRLH (supra) addresses a situation similar to that currently before this Court. In the application before this Court, the applicant claims he never received the delegate’s decision and, therefore, did not know his Protection visa application had been refused or that he then had a finite period of time in which he could apply to the Tribunal for review of that decision.
However, such a claim cannot be sustained. The applicant on his Protection visa application (CB 2) nominated an address in Punchbowl, Sydney to receive correspondence. It is not in dispute that previous correspondence sent on behalf of the Minister on 9 January 2013 had been successfully received by the applicant, indeed the applicant indicated so himself. The delegate’s decision, prepared and dispatched on 9 July 2013, was sent to that same address, in accordance with s.494B(4). The Tribunal was satisfied the applicant had been notified of the decision in accordance with the statutory requirements. Having regard to Robertson J’s reasons in SZRLH at [15]-[17] I am also satisfied the Tribunal was correct in this finding.
As a result of the applicant being deemed to have received the Tribunal’s decision, the last day for him to lodge an application was 16 August 2013, having regard to ss.412(1)(b) and 494C of the Migration Act and reg.4.31(2)(b) of the Migration Regulations 1994 (Cth). He did not file his application for review with the Tribunal until May 2014. Accordingly, noting the findings of Robertson J in SZRLH at [13]-[14] and [21] the applicant’s application for review before the Tribunal was not a valid application and the Tribunal correctly held it had no jurisdiction.
In SZRLH at [24]-[25] Robertson J stated:
24. I adopt the observations of the Full Court in NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173 at [8]: it is very unfortunate that in this case it would appear that, entirely through no fault of the applicant, his application was not received in time. The inexorable and inevitable result is that the Tribunal had no jurisdiction to review the decision.
25.It may be that, on application under s 417 of the Migration Act, the Minister might substitute a more favourable decision, but that is not a matter before this Court on this appeal.
I also adopt his Honour’s observations. There is no discretion conferred on the Tribunal and, accordingly, it was bound to find it had no jurisdiction.
Further, I have had regard to the applicant’s grounds of review (see [14] above). The Minister’s submissions reproduced at [17]-[22] correctly address these grounds and there is no arguable case for the relief claimed therein. Further, the applicant’s oral submissions raise no arguable case for the relief claimed and have been addressed by the reasons immediately above.
Accordingly, the application should be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) with costs awarded to the Minister in the sum of $1,367.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 17 December 2014
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