SZVEL v Minister for Immigration

[2017] FCCA 1630

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVEL v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1630

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle.

Legislation:

Federal Circuit Court Rules 2001, r.44.12

Migration Act 1958, ss.66, 411, 412, 414, 474, 494B, 494C

Migration Regulations 1994, r.2.16, 4.31

Cases cited:

General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Agar v Hyde (2000) 201 CLR 552
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627
SZOFE v the Minister for Immigration and Citizenship (2010) 185 FCR 129

Applicant: SZVEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2706 of 2014

Judgment of: Judge Cameron

Hearing date: 23 May 2017

Date of Last Submission: 23 May 2017

Delivered at: Sydney

Delivered on: 23 May 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr A. Day of DLA Piper Australia

ORDERS

1. The application be dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2706 of 2014

SZVEL
Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Fiji who arrived in Australia on 17 November 2011.  On 6 December 2011 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Fiji because of his race and political opinion. On 6 September 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  On 26 June 2014 the applicant applied to the second respondent (“Tribunal”) for a review of that departmental decision.  However, on 28 August 2014 the Tribunal found that it did not have jurisdiction to review the delegate’s decision.  The applicant has now applied to this Court for judicial review of the Tribunal’s decision.

2. The matter is before the Court for consideration of the applicant’s application that the respondents should show cause why relief should not be granted to him.

3. At a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceeding will be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (“Rules”) if the applicant does not have an arguable case against the respondents. The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).

4. I have concluded in this case that because of the complexity of some issues in relation to correspondence between the Tribunal and the applicant, that the applicant has an arguable case that the Tribunal’s decision should be set aside. However, I am not persuaded that such a claim can be made out and consequently the application will be dismissed on a final basis pursuant to r.44.12(1)(c) of the Rules.

5. It should be noted that in proceedings for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. I have concluded that the applicant has not demonstrated jurisdictional error on the Tribunal’s part.

RELEVANT LEGISLATION

Notification of decisions to grant or refuse visas

1. Section 66(1) of the Act provides that when the Minister grants or refuses a visa, he must notify the applicant of that decision in the prescribed way. Regulation 2.16(3) of the Migrations Regulations 1994 (“Regulations”) provides that the Minister must effect notification of a refusal to grant a visa by one of the methods specified in s.494B of the Act. Section 494B relevantly provides:

   494B  Methods by which Minister gives documents to a person

   …

   Dispatch by prepaid post or by other prepaid means

   (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; or

   (iii)  if the recipient is a minor—the last address for a carer of the minor that is known by the Minister.

2. Section 494C relevantly provides:

   494C  When a person is taken to have received a document from the Minister

   …

   Dispatch by prepaid post or by other prepaid means

   (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; or

   (b)  in any other case—21 days after the date of the document.

Applications for review to the Tribunal

1. By virtue of s.411(1) of the Act as it stood at the time of the delegate’s decision, that decision was an “RRT-reviewable decision”. Pursuant to s.414 of the Act, the Tribunal’s jurisdiction arose if an application to it complied with s.412 of the Act. Between them, s.412(1)(b) and reg.4.31(2) of the Regulations relevantly provided that an application for review of a decision covered by s.411(1) had to be made within twenty-eight days of the notification of the decision.

BACKGROUND

1. The background facts relevant to this matter were summarised by the Minister in his written submissions in the following terms which I adopt:

   6.The application for a Protection visa was refused by a delegate of the first respondent (the delegate) in a decision dated 6 September 2012.  The applicant was notified of the delegate’s decision by way of letter dated 6 September 2012 sent to the [applicant’s] address by registered post, which was dispatched on 7 September 2012.

   7.The RRT received an application for review of the delegate’s decision by facsimile on 26 June 2014.

   8.The RRT wrote to the applicant on 11 July 2014 advising that the application to the RRT had not been lodged within the 28 day statutory time limit and inviting his comments as to the validity of the application. The applicant did not provide a response.

   9.The RRT made its decision on 28 August 2014, finding that it did not have jurisdiction as the application for review had been lodged out of time.

   …

   11.The RRT found that the applicant was taken to have received notice of the delegate’s decision on 17 September 2012. The RRT found that pursuant to section 412(1)(b) of the Migration Act 1958 (Cth) (the Act) and Regulation 4.31 of the Migration Regulations 1994 (Cth) (the Regulations) the application for review needed to be filed within 28 days of the date on which the applicant was notified of the delegate’s decision, which fell on 15 October 2012. Accordingly, the RRT found that the application filed on 26 June 2014 was filed out of time and it did not have jurisdiction. (references omitted)

PROCEEDINGS IN THIS COURT

1. In the application commencing these proceedings the applicant alleged:

   1.The Refugee Review Tribunal failed to Accept my application and failed to Request Explanation.

   2.I ask the Honourable Court to give me copy of the file as I believe that my application for Review was originally lodged on time by Salim Buklls of liverpool who died in November.

   3.I will provide more information to the Court after I get copy of my file.

   4.The Case officer Mrs Vee asked me to buy ticket and returned home.

   5.I asked that my application before Refugee Review Tribunal be accepted.

CONSIDERATION

1. The grounds of the application advanced by the applicant misconceived the task which he set himself in the commencement of this proceeding.  The issue essentially was whether the Tribunal had jurisdiction to entertain the applicant’s review or, more particularly, whether it lacked jurisdiction because the review application had been filed out of time.  The Tribunal was correct in its conclusions concerning whether the application for review had been filed out of time and there is no point setting them out for a second time.

2. There was also an issue concerning whether the Tribunal’s letter to the applicant of 11 July 2014, putting him on notice of the apparent fact that the review application was out of time, had been sent to the correct address and whether it had been effective to discharge the Tribunal’s natural justice obligations concerning that issue.  It is to be observed that the letter in question went to one of the two addresses given by the applicant in his application for review.  The addresses were essentially the same address with one letter missing in one of them.  I infer that they were in fact the same address.  The Tribunal used one of the spellings when it should have used another.  The applicant has not sought to show that the misspelling was of any particular significance or had any consequence for him. 

3. In the circumstances, I do not conclude that there has been any denial of natural justice: Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 (per French CJ, Gummow, Hayne, Crennan and Bell JJ at 640 [35]); SZOFE v the Minister for Immigration and Citizenship (2010) 185 FCR 129 (per Emmett J at 137 [30]; per Buchanan and Nicholas JJ at 145-146 [66]-[69]).

4. However, were I to be incorrect in that conclusion, I accept the Minister’s submission that remitting of the matter to the Tribunal for rehearing would be futile because the Tribunal could reach no conclusion on the matter different from the one which it did reach, namely that it had no jurisdiction in the matter by reason of the applicant’s late lodgement of his application for review.  I would therefore in the exercise of discretion refuse the relief which the applicant seeks. 

5. Nonetheless, it is sufficient to say that jurisdictional error on the part of the Tribunal has not been demonstrated and that consequently the application will be dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date:  13 July 2017