Wang, Yun Chang v Minister for Immigration and Multicultural Affairs

[1998] FCA 726

FEDERAL COURT OF AUSTRALIA

MIGRATION - Application to amend application for review of a decision of the Refugee Review Tribunal - Whether applicant notified of the decision - Whether the amendment would raise a ground of review which would be bound to fail.

Migration Act 1958, ss 53, 412(1)(b), 476(1)(g)
Migration Regulations 1989, regs 4.31(1), 4.31(2)(b)

YUN CHANG WANG v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS and Another
VG 9 of 1998

JUDGE:         NORTH J
DATE:           29 MAY 1998
PLACE:         MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 9  of   1998

BETWEEN

YUN CHANG WANG
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE(S):

NORTH J

DATE OF ORDER:

29 MAY 1998

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1. The application to amend is refused.

1. The application for review is dismissed.

1. The applicant is to pay the respondents’ costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 9 of 1998

BETWEEN

YUN CHANG WANG
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE(S):	NORTH J
DATE:	29 MAY 1998
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR:   This is an application to amend an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 12 January 1998. 

The Tribunal decided that it had no jurisdiction to review the decision of a delegate of the minister, refusing the applicant a protection visa. The delegate's decision was made on 15 August 1997. The application to the Tribunal had to be made within 28 days of notification of the decision pursuant to s 412(1)(b) of the Migration Act 1958 (the Act) and regulations 4.31(1) and 431(2)(b). The application was lodged with the Tribunal on 2 January 1998. The Tribunal found that the notification was made on or about 18 August 1997. It relied upon s 53 of the Act which provides:

“(1) A visa applicant is to tell the Minister the address at which the applicant intends to live while the application is being dealt with.

(2) If the applicant proposes to change the address at which he intends to live for at least 14 days, the applicant must tell the Minister the address and the period of proposed residence.

(3) If the Minister sends or leaves a notification to the applicant at the address for the applicant given under subsection (1) or (2), the notification is taken to have been received by the applicant even if it was not received.”

The ground which the applicant seeks to raise by way of amendment is that there was no evidence or other material to justify the making of the decision: s 476(1)(g) of the Act.  It was accepted by the parties that the amendment should be refused if, were it granted, the application for review of the decision of the Tribunal would be bound to fail. 

In my view, the application would be bound to fail because the decision that the application was filed out of time was not attended by reviewable error. This is for two reasons.  First, there was evidence that there was a letter on the departmental file dated 15 August 1998 to the applicant, advising him of the adverse decision of the Tribunal, and of the fact that a copy of the decision of the Tribunal was enclosed.  The letter was addressed to the applicant at the address given by him in accordance with s 53(1) of the Act.  There was also evidence that an article addressed to the applicant at that address was delivered to the address and signed for by another person on 18 August 1997.  The existence of the letter on the departmental file and the close connection in time between the decision, the letter and the date of delivery allowed the Tribunal to infer, as it did, that the article delivered to the applicant's address was the letter and the decision.  This was evidence upon which the Tribunal could conclude that there was a notification within the meaning of s 53(3). 

Second, the Tribunal said:

“The applicant asserts through his solicitors (Jonathan Wong - letter to the Tribunal dated 6 January 1998) that on or about 15 August 1997 a copy of the decision was sent by certified mail to an address nominated by him”. 

The letter from the applicant's solicitor to the Tribunal included, under the heading “Facts”, the following:

“The material facts of this matter may be summarised briefly as follows:

(d) On 15 August 1997, our client's application was refused.

(e) On or about 15 August 1997, the Department of Immigration sent the decision dated 15 August 1997 to our client by certified mail to an address nominated by our client.”

This letter makes it clear that the applicant conceded that the decision was sent to the applicant.  There was no issue about that.  The case before the Tribunal was, inter alia, that there was no notification within the terms of s 53(3) because the applicant did not receive the decision.  The concession recognised the inevitability of the conclusion referred to in the first point above.  But the concession itself is "other material to justify the making of the decision" within the meaning of s 476(1)(g) of the Act upon which the Tribunal was entitled to rely.

Consequently, an amendment as foreshadowed would raise a ground which would be bound to fail.  I therefore refuse leave to amend the application.  It was agreed between the parties that the consequence of such a decision was that the application should stand dismissed.  I will therefore order that the application to amend is refused, that the application for review is dismissed and the applicant is to pay the respondents’ costs.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice North

Associate:

Dated:             29 May 1998

Solicitor for the Applicant:	Jonathan Wong
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 May 1998
Date of Judgment:	29 May 1998