SZVEV v Minister for Immigration
[2015] FCCA 2724
•6 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVEV v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2724 |
| Catchwords: PRACTICE AND PROCEDURE – Observations on the inability of the Tribunal to extend time for a review application. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.66, 412, 494B, 494C |
| Cheng v Minister for Immigration & Anor [2011] FMCA 461 Rana v Minister for Immigration [2014] FCCA 1488 SZULH v Minister for Immigration [2015] FCA 835 |
| Applicant: | SZVEV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2736 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 6 October 2015 |
| Delivered at: | Sydney |
| Delivered on: | 6 October 2015 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr J Selby of Clayton Utz |
INTERLOCUTORY ORDERS
The name of the second respondent is amended to the Administrative Appeals Tribunal.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2736 of 2014
| SZVEV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is yet another case involving an arid argument arising from the inability of the former Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal) to extend time for review applications. I have, on numerous occasions previously, drawn attention to the difficulties that arise from that inability[1]. Nevertheless, Parliament has not seen fit to amend the Migration Act 1958 (Cth) (Migration Act) to confer on the Tribunal any jurisdiction to extend time.
[1] See for example Rana v Minister for Immigration [2014] FCCA 1488.
The background to this matter is set out in the Minister’s outline of legal submissions filed on 1 October 2015. The applicant is a citizen of India. He lodged an application for protection on 17 December 2013[2]. The applicant claimed that he had been targeted by Sikhs as a follower of the Dera Sacha Sauda religion[3]. On 16 June 2014, the Minister’s delegate refused the grant of the protection visa to the applicant. This was so because the delegate found that the applicant was not a credible witness[4]. That same day, the applicant was notified of the delegate's decision.
[2] Court Book (CB) 1.
[3] CB 7-10, 45.
[4] CB 47-49.
The delegate’s decision was dispatched by registered post to the applicant (Notification letter) [5]. On 8 July 2014, the Notification letter was returned to the Department, marked “returned to sender”
and “unclaimed” [6]. It is notable that the Notification letter has a franking date of “16 June 14” which signifies that it was dispatched on the date that the delegate made her decision[7].
[5] CB 36-37, 59, 78 at [2]. See the postal stamp marked “16 Jun 2014” on the envelope at CB 59.
[6] CB 59-60.
[7] CB 59.
On 31 July 2014, the applicant lodged an application for review with the Tribunal[8]. The Tribunal acknowledged receipt of the application by fax dated 6 August 2014[9]. On 7 August 2014 the Tribunal sent the applicant a fax inviting him to “comment” on the validity of his application “in writing” by 21 August 2014[10].
[8] CB 61.
[9] CB 63.
[10] CB 67-68.
On 21 August 2014, the applicant’s representative had a telephone conversation with a Tribunal case officer. The applicant’s representative asserted that Australia Post had “misdelivered the Department’s notification”. Later that day, the applicant’s representative informed the case officer of the Australia Post tracking number on the notification letter, and the case officer accessed the Australia Post website to review the history of the attempted delivery[11].
[11] CB 78 at [5].
Later that day, the Tribunal received a statutory declaration from the applicant, declaring that he had telephoned the Department on 22 July 2014 to check the progress of his application and that he told a Departmental officer that he had not received the decision record. The officer confirmed the applicant’s residential address and told him that the Notification letter was “returned back to sender” and that the decision would be posted to his address again. The applicant then received the Notification letter on 28 July 2014[12]. The applicant asked the Tribunal to take into account that he had contacted the Department on 22 July 2014. In addition, the applicant asserted that because he received notice of his interview with the department via email, on 22 April 2014, the Department could have emailed the decision when it received the returned registered post on 9 July 2014, a date when the applicant was still within time to lodge a review application by 23 July 2014[13].
[12] CB 78 at [6].
[13] CB 78 at [7].
In its decision, the Tribunal found that the review application was not lodged within the prescribed time limit and that therefore the Tribunal lacked jurisdiction[14]. The Tribunal found at [9] of its decision that none of the matters raised by the applicant could overcome the operation of the applicable statutory provisions.
[14] See [10] of the Tribunal decision at CB 79.
The present proceedings
These proceedings began with a show cause application filed on 1 October 2014. The applicant continues to rely upon that application. There are three grounds in the application:
1. The Refugee Review Tribunal failed to be fair and just in dealing with the review application pursuant to section 420 of the Migration Act 1958.
PARTICULARS
a) The Refugee Review Tribunal acknowledged that the Department of Immigration and Border Protection (DIBP) letter dated 16 June 2014 which was sent to the applicant was returned to the Department as unclaimed post.
b) The Refugee Review Tribunal was not fair or just in dealing with the applicant as the Tribunal formed the view that the applicant was notified of the DIBP decision whereas the Tribunal had evidence which demonstrated the DIBP letter was returned as unclaimed post.
c) The Refugee Review Tribunal did not give proper regard to the intention of section 494B of the Migration Act 1958.
2. The Refugee Review Tribunal failed to have regard to relevant consideration thereby denying the applicant procedural fairness.
PARTICULARS
a) The Refugee Review Tribunal failed to give proper regard to the unclaimed post which was received by DIBP.
b) The Refugee Review Tribunal failed to determine or take into account that the applicant was actually not notified.
3. The decision of the Refugee Review Tribunal is contrary to natural justice.
PARTICULARS
a) The intention of the relevant legislative provisions of the Migration Act 1958 listing the methods through the Minister may give documents to a person is to ensure that there is a reasonable likelihood that the person will receive that document.
b)The Refugee Review Tribunal failed to give effect to the intention of the relevant legislative provisions.
The application is supported by a short affidavit which I received into evidence. I also have before me as evidence the court book filed on 9 December 2014.
I also received an affidavit by Clyde Ernest Hungerford made on 2 October 2015. Mr Hungerford deposes as to facts and circumstances verifying dispatch of the Department’s Notification letter in accordance with the Migration Act.
Only the Minister made written submissions.
The applicant did not attend today’s hearing in person. The Court was, however, successful in contacting him on his nominated mobile telephone number with the assistance of the interpreter booked for today’s hearing. He agreed to participate in the hearing by telephone.
The applicant stated that he had made a mistake about the court date. I note, however, that the applicant attended the first court date hearing on 13 November 2014 at which time the matter was listed for a show cause hearing today. I note that on that occasion the applicant also attended by telephone following his failure to appear in person. I do not accept, however, that there was any confusion about today’s hearing date. The applicant acknowledged receipt of the court book and the Minister’s outline of submissions.
I also had the Minister’s solicitor present those submissions orally so that the applicant could understand the issues arising. Having heard the Minister’s submissions and my summary, the applicant elected to leave the issue for me to resolve.
It is unfortunate that the applicant did not receive notification of the delegate’s decision prior to the time for review to the Tribunal expiring. The problem might have been overcome if the Department had sent a copy of the delegate’s decision by email to the applicant at his nominated email address[15].
[15] See question 19 on the visa application form CB 2.
While, however, that course may have been desirable in pursuit of good administration, there was no legal obligation on the Minister’s Department to use more than one notified method of communication with the applicant. The court book and the affidavit by Mr Hungerford established clearly that the Department met its notification obligations under the Migration Act. In the circumstances, the applicant was taken to have been notified of the delegate’s decision on 25 June 2014. He did not lodge his review application with the Tribunal within the prescribed 28 day period that followed.
The Tribunal was correct to find that it lacked jurisdiction. That is sufficient to dispose of this application. However, for completeness, I agree with the Minister’s submissions on the grounds of review advanced.
Relevant Law
The Tribunal’s jurisdiction is governed by the Migration Act. The Tribunal only has jurisdiction if the relevant provisions of the Migration Act and Migration Regulations 1994 (Cth)
(Regulations) are addressed and complied with.
Section 412(1) of the Migration Act requires any application for review to the Tribunal of a delegate's decision to be:
… given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision…[emphasis added].
Because the “prescribed period” ceases 28 days after the applicant is notified of the delegate's decision, it is necessary to determine the date when the applicant was deemed to have been notified in order to determine when the prescribed period ceased. This requires recourse to s.66(1) of the Migration Act, which stipulates that:
…when the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way…[emphasis added].
The “prescribed way” or methods of notification are set out in s.494B of the Migration Act. Relevantly, one method of notice is dispatch by prepaid post. Specifically, s.494B(4) establishes that a person is taken to have received a document if:
… the Minister dat[es] the document, and then dispatch[es] it;
(a) within 3 working days… 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 document…
If the document is dispatched in accordance with s.494B(4), the intended recipient is taken to have received the document “seven working days after the date of the document”, if the document is sent domestically within Australia[16].
[16] See s.494C(4)(a).
Was the application to the Tribunal out of time?
The delegate's notification of refusal letter was dated 16 June 2014[17]. The letter was sent to the applicant in accordance with the requirements of s.494B(4) of the Migration Act. The letter was:
a)dispatched to the applicant by pre-paid post: this is clearly marked by the Australia Post sticker on the notification letter[18];
b)sent to the applicant within three days of the date of the letter: this is satisfied giving the franking date of 16 June 2014 that appears on the envelope returned to the Department[19];
c)sent to the applicant's last known address for service: the address specified on the notification letter is consistent with the applicant's address in his visa application[20] and the address nominated by the applicant in his application to the Tribunal[21].
[17] CB 37.
[18] See CB 37.
[19] See CB 59.
[20] CB 2.
[21] See CB 62.
Having been dispatched in accordance with s.494B(4) of the Migration Act, pursuant to s.494C(4), the applicant is taken to have received notice of the delegate’s decision within “7 working days” of the date marked on the letter, being 25 June 2014.
Section 412(1)(b) when read with regulation 4.31(2) specifies that the applicant must lodge an application to review the delegate's decision within 28 days of being notified of that decision. The applicant, having been deemed notified on 25 June 2014, had until 23 July 2014 to lodge his application. Accordingly, because the applicant did not lodge his application until 31 July 2014, the Tribunal was correct in finding that “the application was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter” [22].
[22] CB 79 at [10].
Although the applicant pleads three separate grounds of review, the applicant makes two broad assertions. These can be refined as follows:
a)Ground 1: The applicant had no “actual notice” and therefore the decision of the Tribunal that it had no jurisdiction was incorrect because:
i)the letter of 16 July 2014 was “sent back to sender”[23], and
ii)the Tribunal did not give proper regard to the intention of section 494B[24].
b)Ground 2: the Tribunal denied the applicant procedural fairness and did not “have regard to relevant considerations”.
[23] Numerous variations of this assertion are made by the applicant in his grounds of review above. In particular as Ground 1, particular a); Ground 1, particular b) and Ground 2, particular a).
[24] See Ground 1, particular c).
Ground 1
The applicant’s reliance on “actual notice” is misguided in law. There is an abundance of case law dealing with the question of notice pursuant to s.494C(4) of the Migration Act. In Liu v Minister for Immigration[25], Emmett FM (as her Honour then was) stated the position that s.494C(4) has the effect of deeming receipt of a document[26]. Other judicial observations describe s.494C(4) as being “primarily concerned with dispatch rather than receipt”, and that, “the person is taken to have received the document seven working days after the date of the document (s.494C(4)(a)) even if the document was never in fact actually received by the person” [27].
[25] (2010) 240 FLR 202.
[26] Liu at page 213. See also the observations of Spender J regarding s.379D(4) which are in the same terms as s.494C(4) in Murphy v Minister for Immigration (2004) 135 FCR 550 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”.
[27] Barnes FM (as her Honour then was) in Cheng v Minister for Immigration & Anor [2011] FMCA 461 at [19].
In the face of the above authorities, the applicant's complaint that he had no “actual notice” is of no consequence in law. The legislation has the effect of deeming receipt of a document, even if, as in the circumstance of this case, the document is “returned to sender” [28]. Further undermining the premise of this ground, the applicant's assertion that the letter of 16 June 2014 was sent to the “wrong address” is incorrect. The address is accurately notated on the letter which is identical to the last known address provided by the applicant[29]. There is no evidence that Australia Post did not attempt delivery to that address.
[28] See SZULH v Minister for Immigration [2015] FCA 835 at [7]-[18] which affirmed Judge Nicholls’ decision at first instance in SZULH v Minister for Immigration & Anor [2015] FCCA 909 at [10], [25]-[26].
[29] See CB 62.
Finally, it is unclear what the applicant contends by his assertion that the Tribunal did not give proper regard to the intention of s.494B of the Migration Act. The only logical inference that can be drawn is one consistent with the submissions made by the applicant to the Tribunal that it is not fair or just. If so, it must fail. Even if the applicant’s appeal to s.494B is on the basis that the Minister’s delegate could have provided the letter of 16 June 2014 by email, as opposed to pre-paid post, there is no legal obligation to send correspondence by one method as opposed to another, indeed any of those specified in s.494B suffices.
Ground 2
The claims of procedural unfairness are unparticularised. Prima facie, references to a denial of “natural justice” or a description of a decision as not being “fair and just” raise no argument of legal error in the absence of meaningful particulars that substantiate such conclusions.
The assertion that “The Refugee Review Tribunal failed to have regard to relevant consideration (sic) thereby denying the applicant procedural fairness” is unclear and imprecise. Perhaps the applicant seeks to say that the Tribunal ought to have re-set the prescribed period from the date of 22 July 2014 when the applicant claims to have actual knowledge of the delegate's decision, or that the Tribunal had a discretion in terms of extending the prescribed period. In both cases there is no such power given to the Tribunal. The Tribunal can neither re-set the deemed notification date nor extend the time for lodging reviews to the Tribunal.[30] Therefore the applicant’s assertion that he was denied procedural fairness is incapable of being made out.
[30] See SZUQF v Minister for Immigration & Anor [2015] FCCA 2042 at [15].
The applicant has failed to establish any arguable case of jurisdictional error by the Tribunal.
I will order, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), that the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied at the time the application was filed. The applicant said that he had no objection to the costs order sought.
I will order the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 8 October 2015
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