SZMTH v Minister for Immigration & Anor [2009] FMCA 169 (2 March 2009)

Last Updated: 5 March 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMTH v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 169

MIGRATION – Review of RRT decision – where applicant applied to RRT out of time – where Department sent a copy of the delegate’s decision to applicant’s “last known address” – whether Tribunal correct in finding that it had no jurisdiction to review decision.

Migration Regulations 1994 Migration Act 1958 (Cth), ss.494B, 494C(4)(a), 412(1)(b)

Applicant:

SZMTH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2396 of 2008

Judgment of:

Raphael FM

Hearing date:

2 March 2009

Date of Last Submission:

2 March 2009

Delivered at:

Sydney

Delivered on:

2 March 2009

REPRESENTATION

For the Applicant:

In person

Counsel for the First Respondent:

Mr Reynolds

Solicitors for the First Respondent:

Clayton Utz

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent's costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2396 of 2008

SZMTH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Syria who applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 12 December 2007. He completed the necessary forms with the assistance of a Ms Vanessa Ibrahim [CB 9]. Ms Ibrahim lived at an address in Bondi. On the Form C that the applicant completed he gave an address in Bondi Beach.
2. The statement that the applicant made in support of his application for a protection visa was written in the Arabic script. On 6 February 2008 the Department of Immigration wrote to the applicant at the address in Bondi Beach informing him that it could not receive representations made other than in English [CB 39]. That letter was sent to the applicant at both the Bondi Beach address and the Bondi address [CB 41] and [CB 39].
3. One of the letters was returned indicating that the applicant had left the address [CB 40]. There was no translation made of the submission and on 10 March 2008 a delegate of the Minister refused to grant a protection visa. There is a file note at [CB 50] indicating that several attempts have been made to contact the applicant by telephone but the officer who had telephoned the number given by the applicant as his landline number [Supp CB 2] was told that he no longer resided at that address and had not left a contact number. The note also advises that several attempts have been made to contact the applicant on the mobile number that he had given [Supp CB 2] and [Supp CB 13].
4. On 10 March 2008 the delegate's decision was sent to the applicant at both of the Bondi and Bondi Beach addresses that he had given. They were sent by Registered Post. I am satisfied from the documentation in the Court Books at [CB 42], [CB 52], [CB 68] and [Supp CB 23] that the Minister has established that the decision letter was sent to the applicant at his last known address within three working days of the date of the decision document as required by s.494B Migration Act 1958 (Cth) (the “Act”).
5. Pursuant to s.494C(4)(a) of the Act, where notification is sent to an applicant by means of post under s.494B(4) the document is deemed to have been received by the person seven working days after the date of the document. This means that the applicant is taken to have received it whether he did or not. In this case the letters were returned to the Department and I am able to accept the applicant's protestations that he did not receive them. But it was the applicant who gave the Department the addresses used and did not provide any new address.
6. In this particular case it seems to me that the Department acted in a particularly thorough manner to try and ensure the notification of the decision reached the applicant because the document was sent to both addresses that he utilised in his forms and an attempt was made to contact him at both telephone numbers that he had provided. It is difficult to imagine what more the Department could have done.
7. The applicant was alive to the fact that a decision on his case was pending and when he had not received anything by June 2008 he went to see a Mr Sarkis, who in his frequent appearances in this Court, describes himself as an “activist”. Mr Sarkis assisted the applicant to apply to the Department for a copy of the decision in June 2008. Shortly after the decision was received, Mr Sarkis assisted the applicant to make an application to the Refugee Review Tribunal for review of the decision.
8. The decision record is found commencing at [CB 73]. As is usual in matters of this type it was written by a senior member of the Tribunal. The decision explains the history of the application and notes that it was made to the Tribunal more than 28 days after the decision was deemed to have been received by the applicant. This was the time limitation under s.412(1)(b) of the Act and reg.4.31(2)(b) at the time the decision was made and remains so. There is no discretion in the Tribunal to extend this time.
9. The Tribunal found that the decision had been dispatched within three working days of the letter being written and therefore the deeming provisions which I have set out above came into play. The applicant was deemed to have received the notice on 19 March 2008 and so the application which was made on 26 June 2008 was out of time. The Tribunal found that as the application was received outside the mandatory time limit it was not a valid application and the Tribunal had no jurisdiction.
10. Before me today the applicant provided no argument as to why the application might have been within jurisdiction. He concentrated, not unnaturally, on the fact that he had not received the original decision. He told me that he did not understand why this was so because he was still living at at least one of the addresses when the letters were sent. But it is noteworthy that he did not respond to the letter which was sent prior to the decision being made requesting that he provide a translated version of his statement which had been sent to the same addresses.
11. I would also note the report of the attempts to telephone the applicant. The applicant said to me that he had attended the medical examination that he was required to attend and that showed that he was living where he said he had lived and received documents there. But his chest Xray was given on 4 January 2008 [Supp CB 9] and the medical examination appears to be of the same date [Supp CB 16]. Much may have happened between 4 January and 10 March 2008.
12. I am satisfied that the Tribunal's decision that it did not have jurisdiction to entertain this application was correct and that it did not fall into any jurisdictional error when it came to it. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,000.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 6 March 2009